As many of you probably know Phanfare is closed: https://en.wikipedia.org/wiki/Phanfare

No surprise here.  Below you will read an email exchange between myself and the former CEO.

Here is my review of the Phanfare “Unlimited” service, which you will soon realize is not unlimited at all.  I will also be quoting the emails that I received so that you can decide for yourself.

First, let’s start with a screenshot of the sign-up page on Phanfare.  (click for larger size image)

phanfare-review

As you can see on the sign up page, Phanfare offers “Unlimited photos and videos.”

What they don’t tell you, unless you carefully read their Terms of Service, is that it is really not unlimited at all.

Excessive Use Policy. Carbonite may, in its sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of the Carbonite Products, including the Phanfare Service, and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network, compute and storage resources and to take such technical and other remedies as we deem appropriate. Your consumption of the Phanfare Service may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of users of the Phanfare Service. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan of the Phanfare Service that will permit you to continue to use the Phanfare Service. Although violations of this policy have been infrequent, we reserve the right to terminate or suspend your license to use the Phanfare Service and any license to use the Carbonite Products, without prior notice in the event of a violation of this policy.

Wait a second….did I just get scammed?  I thought you said it was unlimited? I really don’t see how anything that is unlimited (without limits) be limited or ever deemed excessive.

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But wait, it gets better…..or worse.

In November of 2009, I get this email from the CEO of Phanfare.  Keep in mind I had a PRO account with them.

“I am writing you personally to let you know that it has come to our attention that your Phanfare account has grown to 345 GB of data. Unfortunately, this account size is far outside the normal range for a Phanfare customer. The average account has 10GB. Our terms of service anticipates the situation:”

He then quotes the TOS in his email and goes on to say this:

“In order to continue to provide you service, you will need to pay an additional $931 per year for the Phanfare service. You can arrange for payment by emailing “mailto:support@phanfare.com”>support@phanfare.com. Your fee will be re-assessed annually depending on your data usage.”

Ummmmm, what?  I thought you said “Unlimited.”  Here is a photo to refresh their LIMITED memory.

phanfare-review

I write the CEO, Andrew Erlichson, back and mention that I am not super happy about this.  I also include the two images you have already seen.  He writes to me saying this

“Phanfare is within its rights to terminate service under the terms of service, which I suggest you read: http://www.phanfare.com/corp/tos.aspx  These are standard industry practices. There are limits and terms which you have not
adhered to  including the upload limits, the requirement that it be for personal use, etc.”

He goes on to tell me why they have the right to terminate the account.  Here is my response, in part, to Mr. Erlichson.

From Me:
“Andrew,

I totally understand that you are in your rights to terminate the account.  If that is the choice that you are willing to make, then I will file complaints within the week to several different authorities.

With the FTC, I will be filing a “False Advertising” complaint.  That complaint will be based on several different pages where you advertise that the service is “unlimited” which means “without limits” or “to infinity.”

If my account costs you more money, or there is that potential, then the word “unlimited” should be stricken from your pages.

You said, “I am sure you understand that there are always limits to use.”  Actually, I do not understand that because your site clearly says “unlimited” in several places.  If there were limits to your service, then I would not have chosen your service.  I chose it specifically because you advertise that it is “unlimited.”

As I mentioned, I fully understand that you can choose to terminate my account since you have pointed that out to me from your TOS.  I hope that you fully understand that I can choose to pursue multiple complaints with multiple authorities if you choose to exercise those rights.

My hope is to continue using the service that you advertise as “unlimited.”  If that is not the case, I would hope that you would allow me time to move those files to a different service that is unlimited before simply deleting them.  If you choose to delete them, the I might have to pursue a lawsuit for the undue time I will have to spend reloading those files to another off-site storage location.  It may be your belief that I won’t win that suit, however my guess it that it will cost your company more money than simply honoring your advertising claim for me.

From here, it might be best to read our interactions.  Quite interesting to be sure.

Andrew Erlichson: “I am happy to provide you the  time you need to make other arrangements. How much time  would that be? Note that our competitor, SmugMug, has an importer so you can move your assets server to server. Much faster than re-uploading. They also have the ability to sell prints at marked up prices, which might better anticipate your business need. 

The unlimited storage that we advertise is true, over a period of time and subject to limitations regarding excessive usage outside the “norm”. Time is always a factor. There is no inherent storage limit built into the system but there are other terms of use, which you did violate. 

We plan to change our system to properly enforce the bandwidth limit so that people can’t grow their accounts too fast.

Your account remains available for your use, even though you have threatened us and me in numerous ways below. I don’t know what more you expect from other people. I think we are being reasonable here. 

The reasons why sites have terms of service is because marketing literature is inadequate to explain all rules of use. This exists in all things including cell phones, cable modems, broadband access cards and car rentals. 

Anyway, the storage is unlimited, provided you abide by the terms, which you did not.  I suggest you look at smugmug and carbonite, as but two examples of companies that offer unlimited storage but also have terms that outline acceptable use.

I love the line, “The unlimited storage that we advertise is true, over a period of time and subject to limitations regarding excessive usage outside the “norm”.   How can something be unlimited and subject to limitations? 

Me “I have just sent an email to Smugmug to inquire about their service.  I sincerely appreciate the offer to wait to terminate the account until we can move the images server to server.

I don’t think that I will need a tremendous amount of time from you and will let you know as soon as SmugMug answers my inquiry and I set up an adequate account with them.” (NOTE:  SmugMug has a truly unlimited service and I have been with them ever since.  No crap about TOS or limitations)

We are extremely busy professional photographers and take an enormous amount of images annually.   Our growth is based on our clients and we require a reliable offsite backup of our full-sized images.

Thank you again for keeping the account active.  Do you already know how to go about transferring files to SmugMug server to server?”

Andrew Erlichson Smugmug’s smugglr app does it. we provide them an API key and we have a similar facility to bring stuff from them to us. We don’t hold media hostage. 

Smugmug also has language in their TOS so make sure they are ok with your intended usage level. I don’t want to see you surprised again. I suspect they are more lenient and that their larger population would make it less likely that you would fall in the top 1% (as you have with us). But again, just make sure. 

I don’t know whether or not the smugglr importer can reliably move the data.   

We will also sell you a set of DVDs at our internal cost if you desire. That will give you an organized, labeled backup with metadata.  But it’s a lot of disks. 345GB will require 82 disks and cost $574. 

Feel free to call me to discuss. I will take your concerns about our marketing claims under advisement and see if we can give the details of our offer more visibility. Note that our tech specs page, a marketing page, does have bandwidth limits listed.”

Me Smugmug had no problems with the size.  I have been moving the files through the Smugglr, but it is a very slow process.  Faster than re-uploading them, but still eating up a lot of my time.  Yesterday I spent about 18 hours moving only about 50GB from Phanfare to Smugmug.

Today, I have moved about 8-10GB as the effort continues to move files off of your service.”

Andrew Erlichson “Ok, well, we are not going to really look at this again until the first of the year so you should have the time you need.”

Andrew Erlichson Thu, Nov 19, 2009 at 8:55 AM

“We received the notice from the better business bureau. As we are trying to facilitate you finding another provider and have provided no strict deadline for the transition, would you be willing to close
the dispute?”

Me  Thu, Nov 19, 2009 at 9:52 AM

“I filed that right after I got your initial notice.  I am still unhappy with what you/Phanfare has done.  I paid you $99 for “unlimited” storage, then found out that it wasn’t unlimited.  Now, I am spending tons of my time moving images from your service to Smugmug.

So far, I have spent over 40 hours moving images to SmugMug from Phanfare and I am not close to finished.  I will probably have over 100 hours moving images and re-organizing them by the time I am through with this process.

So, close the dispute?  Not yet.  I would expect that you not only offer to allow me all the time I need to move images from your “unlimited” service, but offer some sort of amends for hitting me with almost a month’s worth of unexpected work to move images.

I have to tell you, that each day that I am spending time moving images from the unlimited service with no formal apology from you, I am a bit more determined to let my colleagues know the potential that they face by working with Phanfare.  The only thing that has happened so far is that you defended your TOS.  No offer of my money back, not offer of amends for my wasted time.

I think that I will leave the dispute open for now until I have successfully moved the images off of your service.  If you determine to offer something that acceptable given the amount of effort I am facing, then I will close the dispute.

In my dispute, I would have liked to continue service that I paid for.  You are not willing to do that.  I thus, am not willing to close the dispute at this time because I am the one burdened with the extra effort to move the images.

Please note, the offer to keep my images on your service is not an acceptable offer to close my dispute since I paid for “unlimited” service.  The service that I paid for was/is “unlimited” and should be the bare minimum and if it were truly “unlimited” then I would not have filed a dispute in the first place.

Since the day that you notified me that your service was not unlimited, I have been frustrated with additional work during a time when we should be finishing up other work.  My clients have had to wait additional time for their edits, my wedding clients have had to wait additional time for their book designs and my family has had less time together.  To say the least, I am still very unhappy with Phanfare’s “unlimited” service.”

Andrew Erlichson Thu, Nov 19, 2009 at 10:06 AM

“We will refund your annual fee for this year. The way I see it, we can’t provide you the service at this price. Our terms allow for this. You prefer to go. That’s ok. We have a satisfaction guarantee and hence would be more than happy to refund your money. That seems fair. 

There were other resolutions to this that were possible. Nearly every other customer that we contacted decided to reduce the size of their account to 100GB to avoid paying higher fees.  That is still 10x the average and we still lose money at that number.

Once reduced, we have no problem with an account continuing to grow over time.

You see companies as some monolithic large entity capable of absorbing any degree of loss to make you whole and you take no personal responsibility in this. Our terms of service did specify that uploads were limited to 10GB per month. While I don’t have exact records, you almost definitely violated this term. 

Phanfare is a small business that must protect the interests of the whole community. Whenever somebody is using a disproportionate amount of resources, we have to address it to protect the whole. Offering alternative pricing is our way of doing that.

Phanfare has no storage limit (could’ve fooled me, oh wait, you did fool me) built in and the whole system is growing over time. However, your usage falls way outside typical usage. The price we offered you reflected our true costs. Remember, your account is in the top .2% of all accounts. 

But I agree that the way we are going about this is not optimal. In the future, we plan to enforce the terms of service on a real time basis, preventing people from violating our posted uploaded limits per time period. That should alleviate people putting in huge amounts of effort to create large accounts, only to be  sent a notice afterwards. 

What you want to say about us is up to you. However, I truly believe our policies are reasonable and our actions defensible. 

As for an apology, I am sorry that we did not better anticipate this and build a system where people could not put us into a position of needing to offer alternative pricing. As I said, it would be better for all if we had stopped this from occurring before it became a problem. And I do regret that this is causing your personal work.”

Me Tue, Nov 24, 2009 at 8:03 AM

“I am about half way through the process of moving the images to SmugMug.  You can refund my payment to Phanfare onto the credit card that I provided.  Your statement that I see companies as monolithic large entities capable of absorbing any degree of loss and taking no personal responsibility goes is ridiculous and probably meant to be a jab at me for doing what I simply believed was an unlimited service.  You claim that it is unlimited (without limits) and that is what I believed until your first email explaining that you did not actually mean “unlimited.”

So, your assertion about how I “see” companies gives me an idea about perhaps how you see your clients?  And your assertion about my taking personal responsibility during this? 

Wow.  I have spent almost 50 hours now in moving images from your “unlimited” service because it is not unlimited.  You have cost me time that I can never replace.  You have caused some of my other client interactions to suffer because I am busy personally moving images.  All because I believed what you advertised.

I think in my interactions with my clients for the several companies that we own, I would say I am sorry, and move on without attacking them.  It seems a smart business move to me to realize that one of my clients believed something that I advertised.  Now it is my turn to make it right for them.  Your defense of your TOS seems more important than what your public reputation will be with regard to this matter and I quite simply don’t get that.

I am sure by even writing this, you will find another way to send a jab at my character or defend your TOS and policies.  I am not sure that helps however.

You can refund what I paid to you, and you can not feel that I need or want a response.  Your responses at this point are not really helping in my view of Phanfare.  The way they are being received are negative and worsening my opinion of Phanfare rather than strengthening it.  I should be finished moving the images off of Phanfare by the end of Dec.  That will give me ample time to get it done in the midst of a very busy season.”

Andrew Erlichson Tue, Nov 24, 2009 at 8:16 AM

“If our business was stronger, we would have absorbed the losses indefinitely to protect against leaving anybody unhappy with Phanfare, no matter whether we felt their unhappiness was justified or not. This was not my preferred route, to depend on clauses in our TOS to lower our costs by controlling heavy users. 

Nevertheless, I think you should realize though that you are using a service that was clearly marketed for individual, not business use. You argue that our marketing is not as clear as it could be regarding unlimited storage. Looking only at our marketing, and not worrying about our TOS for a moment, you were still using Phanfare in ways not quite intended.

Here’s a great spot for this banner which was at the top left of my log-inscreen on Phanfare

By personal responsibility, I did not mean whether you are spending huge amounts of time to move your stuff over; I meant that maybe deep down, you knew that your use of Phanfare was not quite
as intended
and “too good to be true.” I am sure you would not expect us to host CNN’s home page photos for $49.99/year.

Anyway, as you point out,  I don’t think we are making much progress in understanding each other so don’t feel a need to respond.”

Me  Tue, Nov 24, 2009 at 8:39 AM

“My account with Phanfare is labeled “PRO”

[Andrew said] “think you should realize though that you are using a service that was clearly marketed for individual”

(I paid extra for the PRO service)  PRO is short for professional.  I upgraded to make sure I was not on an individual account thinking and believing that I was doing the right thing.

“By personal responsibility, I did not mean whether you are spending huge amounts of time to move your stuff over; I meant that maybe deep down, you knew that your use of Phanfare was not quite as intended and “too good to be true.” I am sure you would not expect us to host CNN’s home page photos for $49.99/year.”

Wrong again.  I paid more than $49.99 and certainly believed that I was using a PRO unlimited service.  I also most certainly don’t believe anything is “too good to be true”  I thought that by paying an upgraded fee for your PRO service was what would allow me to use the PRO features.  Your sarcasm towards me and assumptions towards what I believed about Phanfare show a huge disconnect with what you are advertising and what you are actually offering.”

Me  Sun, Jan 3, 2010 at 11:03 PM

“I have finally finished moving our images off of your service.  Please send me the refund for the service that you offered to us.”

Andrew Erlichson  Mon, Jan 4, 2010 at 7:12 AM

“Thanks for your cooperation. I will get the check sent out. What’s your feeling about the BBB dispute?”

Me Mon, Jan 4, 2010 at 9:06 AM

“I think that the dispute is still valid as I spent almost 100 hours moving images from the Phanfare “Unlimited” service to SmugMug.  My typical charge per hour is $xxx when shooting photography,  which would equate to about $xx,xxx of wasted time moving images from Phanfare.  I feel that other photographers should at least be warned about this potential.

Thanks again for the offer of the refund.  I will let you know when I receive the check.”

Andrew Erlichson  Tue, Jan 26, 2010 at 12:41 PM

“Mailing check today. sorry it did not work out and that we did not better anticipate this issue at the outset.”

Okay, I know that was long, but not nearly as long as the time it took me to move my files from the “Unlimited – PROfessional Phanfare” service.  Over 100 hours spent moving files to SmugMug.

For the record, I did receive my $99 back from Phanfare, but no amends at all for the time lost.  Also, SmugMug has never written me a nasty-gram and I have since quadrupled the stored files on their system.   And, I guess I do expect companies to do what they say they will do.