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Adobe’s PR Nightmare Continues

Kevin Patrick Robbins

Adobe has been facing a ton of backlash this month for its recent changes to its terms of service. I’ve made a few videos about it, including one about their initial response, and another about how to disable the settings in Photoshop and your Creative Cloud account.

In their response, they said they would be updating their Terms of Service on Tuesday, June 18 to make it clearer. That was yesterday. The day before that, however, on Monday, June 17, 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.

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.

So, I’m going to talk about the updated Terms of Service, the backlash, the FTC lawsuit, what dark patterns are, the way Adobe has handled yesterday’s release of the updated version of the updated TOS, and even the TV show Lie To Me, which I promise is going to be relevant.

Why Am I Qualified to Address This?

First of all, though, if you don’t know me, I’m Kevin Patrick Robbins, I’m a commercial photographer living and working near Toronto, Ontario, Canada, I used to teach improvisational comedy at The Impatient Theatre Co. in Toronto, which I founded, owned, and ran for 12 years, and I have a degree in business communications, which is fancy 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. After university, I ended up doing my post-grad studies in screenwriting which led me to study improvisation, which later became a major focus of my life’s work.

I also spent years working in newspapers as a journalist and editor. While I was in university, I spent years as a student journalist and eventually became the editor-in-chief of my university newspaper. After school, I worked as a copy editor and photo editor for a daily newspaper in Niagara Falls. I worked the wire desk during the Second Intifada 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 Communication Director for the Canadian Actors Equity Association, where I organized media events and a national picketing campaign centred around a non-union touring production of Miss Saigon.

Why am I saying all of this?

Well, so you know that my perspective is not that of just 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’s 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 believe strongly in the rigours of journalism and providing an accurate depiction of the truth.

Do I trust Adobe? No. I trust them as far I can throw any multi-billion dollar tech company that has a fiduciary responsibility to its shareholders. That includes Alphabet, Amazon, Apple, Broadcom, Meta, Microsoft, Netflix, Nvidia, Oracle, and so on and so on.

But I’m also a customer. I’ve also been using Adobe products for the past 30 years. From Photoshop version 2.5, before Layers even existed, to Aldus Pagemaker, which became Adobe InDesign, to Macromedia Dreamweaver which is now Adobe Dreamweaver. 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 TOS and PR machine.

A Few Weeks Ago

A few weeks ago, I noticed an option in Photoshop in the Product Improvement section of Photoshop’s 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 use to get better and I know that my participation in such programs helps them get better. But I suspect that because the first option was selected, when it was added in an update with no notice to its 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 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 on us. 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 23, I went to my studio and recorded my first take of the video. I didn’t like how I looked in the video because I have body positivity issues, so I went back the next day, on Friday, May 24 and 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 a really slow year so far, things have been picking up recently, which is great. So that is always my priority.

Adobe’s Terms of Service Backlash

On Wednesday, June 5, Adobe updated its TOS and forced an acceptance of it on its website, which you could not bypass to login to your account. You could close the window but then you could not log on to their website, to do things like change your settings, change your membership, or cancel your account. A lot of people started reading the new TOS and many people misinterpreted some sections of the TOS and got a number of things wrong. Tweets were posted and many anti-Adobe videos started showing up on YouTube on Thursday, June 6. However, there was rightfully a lot of concern over the use of customer images to train their generative AI models.

While 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, I went live at the same time as a number of other videos were fanning the flames. For a channel whose videos tend to get only a few hundred views, my video got boosted by the algorithm and 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, to release the next day. 

That same day, Adobe released its first blog post with an initial response to the backlash about its TOS update, which they called a clarification. Unfortunately, this blog post only caused more confusion for many people. On June 10, Adobe released another post on their blog indicating that they would be updating their Terms of Service on June 18.  Both of these posts claimed that Adobe does not use customer work to train their generative AI models. 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 12 that removed that option.

Here’s where I want to talk about framing. In communications, framing is the way in which we use language to adjust the meaning of a statement or question. You could reframe a sentence to clarify its context or obfuscate its true meaning. Reframing isn’t inherently good or bad, it’s just a way to adjust the statement or question so the receiver’s understanding is adjusted, usually to improve it.

But framing can also be used to try to 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, 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. “Do not” is the present tense.

Subsequent to Adobe’s crisis management statements which they released in the form of blog posts, a lot of videos went up on YouTube and TikTok and elsewhere, addressing the backlash. There hasn’t been a lot of nuance on either side. There have been videos that are favourable to Adobe, measured criticism from responsible creators, sensationalist videos with clickbait headlines, and even some 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 and the subsequent backlash that went out last Friday, June 14. 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 mistaking the fact that I am annoyed and angered. You can see as clear as day in my facial expressions and vocal tone. And I don’t like being annoyed or angry.

As a photographer, my primary concern is centred 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 never have used our work to train their generative AI models but the proof is right 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 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 12? I would love an answer and the public deserves to know. My clients deserve to know.

What are Dark Patterns?

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 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 pattern 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 17, the Federal Trade Commission in the United States filed a lawsuit against Adobe, compounding its PR nightmare. The article from Reuters states, “The U.S. 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 Levine, director of the FTC Consumer Protection Bureau is quoted as saying, “Adobe trapped customers into year-long subscriptions through hidden early termination fees and numerous cancellation hurdles.”

Dana Rao, 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. What it doesn’t mean, though, is that anyone other than the lawyers who wrote the terms can 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 to improve the clarity in the terms.

Adobe’s June 18, 2024 Terms of Service Update

So that brings us to yesterday, Tuesday, June 18, at the time of this recording, and the release of their newly updated, updated Terms of Service. Because I promised to update my subscribers on the new TOS when it was released, I spent a good chunk of the time revisiting the Adobe blog over and over waiting for the company statement and a link to the new TOS. It never came. Instead, what did come was a number of videos from Adobe employees and evangelists.

In the time between them releasing their statement on June 10 and updating the TOS yesterday, Adobe’s comms team would have noted that the primary way news about this fiasco was spreading was on social media, particularly on YouTube, Instagram, and TikTok.

It appears that 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 TOS 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 favourable for the corporation.

It’s clear from the videos that these employees had access to the updated TOS 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 also probably had to get them approved by Adobe’s legal team. And it’s a good strategy from a PR perspective. I would have recommended a similar approach, but I would have vetted the videos better and pushed out a blog post announcing the new terms.

There are two videos that I want to address, though, and I’ve linked to both in the description. But before I do, I want to make it clear that I do not know these people. They could be really great people caught in the middle of a bad circumstance at their workplace. However, there are moments in each of their videos which make me feel they are being disingenuous.

The first is from Terry Lee White, Principal Director and Community Advocate at Adobe. In his video, he states people had been asking him to break down the updated Terms of Service from June 5 but he refused to do so because, as he stresses, he’s not a lawyer. He then proceeds to break down the most recently updated TOS — even though I’m assuming in the past week he did not get a law degree. He states that he feels comfortable doing so because now they are written at a level he can understand and comment on. 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 Levine, Principal Worldwide Evangelist for Adobe. Here are a couple of clips from that video.

If those moments don’t quite sit right with you, you’re not alone. I felt it was very smarmy, and at least two commenters on his video also picked up on it. It’s right here, and right here. (Clip of Lie To Me)

Another thing about me is that I’ve studied subtle expressions and microexpressions, specifically the work of Paul Eckman and his Facial Actions Coding System. Tim Roth’s character in the TV show Lie To Me is based on Paul Eckman and his work. It’s what led me to Eckman’s work in the first place. I’ve even developed improv exercises based on Eckman’s work to teach improvisers how to read facial expressions and it’s so inherent in my work as a photographer that my first solo exhibit last year was titled Expressions, Vol 1: The Architecture of Emotion.

Unless you are highly trained, and even sometimes then, it’s nearly impossible to hide your feelings and emotions. So when I see this expression and this expression, even for a fraction of a second, my brain has been trained to recognize this as “disgust.” His face cannot how he feels. This look of disgust, coming from an Adobe employee, reflecting on Adobe’s updated updated Terms of Service, doesn’t just look bad on him. It looks bad on Adobe. If the comms team had to vet these videos before they were posted, they should have flagged this.

And again, I do not know these people, so they could be really great people in real life, but these videos do not do them justice.

Despite “how” Adobe chose to try to get the word out about the second update to their Terms of Service, the June 18 terms themselves have not been altered significantly from the June 5 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 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, and I said it in my previous video, but even I had friends messaging me saying, “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 what they heard was right.

The license, however, which grants Adobe the right to sublicense, 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 we grant our clients would be a concern. 

Adobe needed to do a better job of clarifying this and, frankly, 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 and they should have followed up in the same communications channel 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.”

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 have much of a choice as the alternatives, such as Affinity Photo, don’t quite meet my needs. I will be releasing a video soon on Adobe alternatives that could actually be useful in a professional photographer’s workflow, such as Capture One Pro.

So, if you’re a professional photographer or aspiring professional, subscribe to this channel and stay tuned for more videos. Otherwise, thank you for watching to the end.

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