Adobe's PR Nightmare Continues

Adobe has been facing a ton of backlash this month for its recent changes to its terms of service in their response Adobe said they would be updating their terms of service on Tuesday June 18th to make it clearer that was yesterday the day before that however on Monday June 17th 2024 the United States Federal Trade Commission slapped Adobe with a lawsuit about their use of dark patterns especially as it pertains to their cancellation fees so I'm going to talk about the updated terms of service the backlash the FTC lawsuit what dark patterns actually are the way Adobe has handled yesterday's release of the updated version of the updated terms of service and even the TV show lie to me which I promise is going to be relevant I'm going to give you a bit of a background on me just so you understand where I'm coming from and my expertise in the things I'm about to talk about my name is Kevin Patrick Robbins I am a commercial photographer living and working near Toronto Ontario Canada I used to teach improvisational comedy at the impatient Theater Company in Toronto which I founded own and ran for 12 years and I have a degree in Business Communications which is University speak for public relations and marketing I was at one time before I had a soul very interested in a career in corporate image and crisis management I also spent years working in newspapers as a journalist and an editor while I was in university I spent years as a student journalist and eventually became the editor and chief of that University's newspaper after school I worked as a copy editor and a photo editor at a daily newspaper in Niagara Falls I worked the wire desk during the second inata which eventually led to my decision to leave news because I found myself becoming desensitized to the horrors of the world because of my background in entertainment and comedy I got a job working as the national communications director for Canadian Actors Equity Association where I organized media events in a national picketing campaign centered around a non-union touring production of Miss Saigon that was 20 years ago so why am I saying all of this so you know that my perspective is not just that of some guy on the internet with a camera I have an education and extensive experience that allows me to analyze and understand the crisis management PR machine at work here I'm not going to blindly accept Adobe spin at face value but I'm also not going to dismiss it outright like a lot of people want me to I have a background in journalism and I believe strongly in the rigors of Journalism and providing an accurate depiction of the truth but I am a customer I've been using Adobe products for the past 30 years from Photoshop version 2.5 before layers even existed to alest page maker which became Adobe InDesign to macromedia Dreamweaver which is now Adobe Dream Weaver I've been a fan and user of adobe products before most of them were even adobe's products so let's take a look at the timeline of events from these past few weeks and bring us up to date through yesterday's updated updated terms of service and the pr machine at work behind it all so a few weeks ago I noticed an option in Photoshop in the product Improvement settings of Photoshop settings that was enabled the text of this enabled checkbox read I give Adobe permission to use my images and Associated data to train adobe's generative AI models note that it clearly says generative Ai and models plural I had the first option selected which I usually do because I want the products I Ed to get better and I know that my participation in such programs helps them get better but I suspect that because I had the product Improvement options selected when they added the second option in an update with no notice to their users the second option was on by default frankly I was pissed the problem for me is that because I'm a portrait photographer and a commercial photographer the images that I open in Photoshop are of other people and often for other companies those people my clients have not consented to allow Adobe to use their likenesses to train their generative AI models and I know some of them would be livid if I had chosen to do so without their consent but I was not given a choice adding settings to programs without informing your user base and making them opt out instead of opt in is forcing it upon the users you can't force something on someone when they are unaware of it happening to them and then say they always had a choice to opt out on Thursday May 23rd I went to my studio and I recorded my first take of my video I didn't like how I looked you know because issues so I went back the next day on Friday May 24th and I recorded the take that ended up in the video I spent two weeks working on the edit because I'm actually a working photographer with real clients and real deadlines and despite it being really slow so far this year uh things have been really picking up the last few weeks which is great so my work is my priority on Wednesday June 5th Adobe updated its to and forced an acceptance of it on its website which you could not bypass to log into your account you could close the window but then you could not log into their website to do things like change your settings change your membership or cancel your account a lot of people started reading the new to and many people misinterpreted some sections of the to and got a number of things wrong tweets were posted many anti- Adobe videos started showing up on YouTube on June 6th a Thursday however there was rightfully a lot of concern over the use of customer images to train their generative AI models which I was pissed about well my video was initially about adobe's use of firefly and their marketing effort to replace photographers with software which happened to have a section about the settings I discovered in Photoshop and the Creative Cloud data and privacy settings my video went live at the same time as a number of other videos were uh addressing the terms of service change for a channel whose tend to only get a few hundred views my video got boosted by the algorithm is seen by thousands of viewers a lot of comments on that video were asking me how to disable these settings so I also recorded a short video showing people how to do that and released that the next day that same day however Adobe released its first blog post with an initial response to the backlash about its terms of service update which they called a clarification unfortunately the blog post only caused more confusion for many people on June 10th Adobe released another post on their blog in indicating that they would be updating their terms of service on June 18th yesterday both of these posts claimed that adobe does not use customer work to train their generative AI models and now this didn't sit well with me because it clearly says in the Photoshop settings I give Adobe permission to use my images and Associated data to train adobe's generative AI models or at least it did until Adobe released a tiny update to photoshop on June 12th that removed that option so here's where I want to take a moment to talk about framing in Communications framing is the way in which we use language to adjust the meaning of a statement or question or to redirect the attention or obfuscate uh the real issue framing isn't inherently good or bad it's just a way to adjust the statement or question so that the receiver's understanding is adjusted usually to improve it but framing can also be used to try and change the message that people are focusing on when you don't want them to focus on the fact that the meat is a little old and Brown you remind people that there's a beautiful cake at the end of the meal in adobe's messages they keep saying we don't use customer images to train generative AI don't do not that's present tense now subsequent to adobe's crisis management statements which they released on their blog a lot of videos went up on YouTube and Tik Tok and Instagram Etc addressing the backlash there hasn't been a lot of nuance on either side there have been videos that are favorable to Adobe measured criticism from responsible creators sensationalist videos with clickbait headlines and even videos that I would classify as quite tasteless that use aggressive language associated with heinous crimes of sexual violence so I created a video to address these releases in the subsequent backlash that went out last Friday June 14th my video leans a bit angrier but I still think it's fair the journalist in me wants to provide a balanced account but I'm not a journalist anymore now I'm just a customer I've been a customer for more than 30 years I think I've been fair and accurate but there's no mistak in the fact that I am pissed you can see as clear as day in my facial expressions and my vocal tone and I don't like being pissed or annoyed as a photographer my primary concern is centered around this setting in Photoshop that gave Adobe permission to use my work and more importantly to me to use images of my clients to train their generative AI models Adobe keeps saying that they have never used our work to train their generative AI models so why is that there I want answers my questions which still no one at Adobe has answered continue to be this if you did not past tense use customer images to train your generative AI models then why was there a setting in Photoshop that explicitly allowed you to do exactly that why was it turned on automatically for people who participated in the product Improvement program and why did you quickly and quietly remove it in a small update to photoshop on June 12th I would love an answer and the public deserves to know my clients deserve to to know now these kinds of tactics are referred to as dark patterns dark patterns are sneaky tricks used by websites and apps to get you to do things that you might not want to do like buying something or signing up for a service these tactics often involve hiding important information in terms of service or fine print making it hard for you to understand what you're agreeing to for example a website might hide extra charges or subscriptions in the small print so you don't notice them until it's too late another common dark patter is making it difficult to cancel a subscription a company might let you sign up for a service with just one click but make you go through several complicated steps to cancel it these tricks are designed to take advantage of you and make it easier for companies to get your money without you fully realizing it and it's because of adobe's use of dark patterns that on Monday June 17th the Federal Trade Commission in the United States filed a law suit against Adobe compounding its PR nightmare the article from reuter States the US government sued Adobe on Monday accusing the Photoshop and acrobat maker of harming consumers by concealing Hefty termination fees in its most popular subscription plan and making it difficult to cancel subscriptions Samuel LaVine director of the FDC Consumer Protection Bureau is quoted as saying Adobe trapped customers into year-long subscriptions through hidden early termination fees and numerous cancellation hurdles Dana REO adobe's general counsel and chief trust officer noted Adobe will refute the claims in court and said we are transparent with the terms and conditions of our subscription agreements and have a simple cancellation process I talked about framing earlier and this is a great example of it transparent in this case means it is accessible by Links and everyone can read it but what it doesn't mean though is that anyone other than lawyers who wrote the terms can really understand them if they did Adobe wouldn't have had to issue a clarification and they wouldn't have had to update their terms of service again to improve the clarity in the updated terms of service so that brings us to Tuesday June 18th yesterday at the time of this recording and the release of their newly updated updated terms of service now because I promised to update my subscribers on the new TOs when it was released I spent a good chunk of time revisiting the Adobe blog over and over refreshing the screen waiting for the comment statement and a link to the new to it never came instead what did come was a number of videos from Adobe employees and evangelists on different social media platforms now in the time between them releasing their statement on June 10th and updating the to yesterday adobe's comm's team would have noted that the primary way the news was about this Fiasco was spreading was on social media particularly YouTube Tik Tok and Instagram now it appears they intended to get a jump start on the virality of the videos by having their own employees put out videos on their own channels about the updated to to get an adobe positive message out first the videos are mostly exactly what you would expect in the messaging from a corporation or its employees they are favorable for the corporation it's clear from the videos that these employees had access ACC to the updated terms of service well ahead of the public time to record videos make presentation Graphics edit the videos and given the circumstances and the fact that they all went live at pretty much the same time they probably had to get them approved by adobe's legal team and it's a good strategy from a PR perspective I probably would have recommended a similar approach but I would have vetted the videos better and push out a blog post announcing the new terms there are two videos here that I want to address and I've linked to both of them in the description but before I do I want to make it clear that I do not know these people I want no hate on these creators they could probably be really great people caught up in the middle of a bad circumstance at their workplace however there are moments in each of their videos which make me feel personally that they are being disingenuous now this first video is from Terry Lee white principal director and Community Advocate at Adobe in his video he States many of you have asked me hey Terry would you make a video would you go on a live stream would you go on a podcast would you kind of help us understand what these terms of use are and I said no because I'm not a lawyer I'm not capable of of Legally speaking on adobe's behalf people had been asking him to break down the updated terms of service from June 5th but he refused to do so because as he stresses I'm not a lawyer however he then proceeds to break down the most recent updated terms of service even though I'm assuming he did not get a law degree in the past week he states he feels comfortable doing so now because they are written at a level that he can understand and comment on so I do feel comfortable about going through those things because they made it easy for everyone to understand I suspect however that it's also much easier to comment on something when you have a sheet of talking points vetted by the company's attorneys the next video I had an issue with is from Jason LaVine principal worldwide evangelist for Adobe here are a couple of clips from that video or sometimes it can be a little confusing so I'm going to go through them and provide examples of exactly what it means that you're giving the license to be able to do that particular task that's it now if those moments don't quite sit right with you you're not alone I felt offut by them and at least two commenters on his video also picked up on it it's in this moment here and In This Moment here and here's why I'm off-put by them like another thing that people don't know about me is that I've studied subtle expressions and micro Expressions specifically the work of Paul emman and his facial actions coding system Tim Ross's character on the TV show Li to me is based on Paul emman and his work it's what led me to ekman's work in the first place I've developed improv exercises based on ekman's work to teach improvisers how to read faces and expressions and it's so inherent in my work as a photographer that my first solo exhibit last year was titled Expressions volume one the architecture of emotion unless you're highly trained and even sometimes then it's nearly impossible to hide your feelings and emotions when you're talking so when I see this expression and this expression even for a fraction of a second I am trained to recognize this as disgust and it turns out that look of nausea we all Express is is universal Professor Paul Eckman of the University of California San Francisco found that the expression for disgust is identical in different cultures across the globe essentially screwing up our noses and pulling down the corners of our mouths his face cannot hide how he feels concealed disgusts looks the same this look of disgust coming from an adobe employee reflecting on adobe's updated terms of service and speaking to Adobe customers doesn't just look bad on him it looks bad on Adobe now if the communications team at Adobe had to vet these videos before they were posted which they should have they should have flagged this and again I want to make it clear I don't know these people and they could be really great people in real life but these videos that they released don't do them Justice despite how Adobe chose to get the word out about the second update of their terms of service the June 18th terms themselves have not been significantly altered from the June 5th terms they do provide more examples and try to offer some insight within the document to clarify what each section means personally I never had a problem with these terms these terms are exactly what you would expect from a company the size of adobe with the product range Adobe offers the pr nightmare that adobe has been dealing with is because a few loud voices on the internet did not understand the terms of service and started misguided claims that adobe owns your work that's not true it was never true but even I had friends messaging me saying did you know that adobe owns our work they heard it from someone who heard it from someone else who heard it from someone else who got it wrong and just assumed that what they had heard all the way down the chain was right the license however which grants Adobe the right to sulic and make derivative Works Etc could be seen as problematic from an image licensing perspective as someone whose entire livelihood is based on licensing his images I'm quite familiar with this kind of language and usage rights I can see why language that is nearly identical to the rights that we grant our clients would be a concern Adobe needed to do a better job of clarifying this and frankly I think they have how they chose to communicate this most recent update however was not the success they were probably hoping it would be they should have vetted the videos better if at all and they should have followed up in the same Communications channel that they've been using and posted a brief update to their blog saying something along the lines of hey here are the new terms and here's how we've clarified them do I trust Adobe no I trust them as far as I can throw any multi-billion dollar tech company that has a fiduciary responsibility to its shareholder and that includes alphabet Amazon Apple broadcom meta Microsoft Netflix Nvidia Oracle and so on and so on and so on now I love a great piece of software and Photoshop is a great piece of software but I loathe being taken advantage of and lied to which I believe Adobe has done but the question remains have they done enough to make it right I'm not so sure personally for my work because it's such an industry standard and because I've been using it for 30 years I'm sticking with Photoshop I don't I don't have much of a choice the alternatives such as Affinity photo just don't quite meet my needs I'll be releasing a video soon on Adobe Alternatives that could actually be useful in a professional photographer's workflow such as capture 1 Pro so if you're a professional photographer or an aspiring professional subscribe to this Channel and stay tuned for more videos otherwise thank you for sticking around to the end I'm going to put a link to all the sources Below in the description so check those out