EFF's Letter to Zillow on Behalf of McMansion Hell [pdf](eff.org)
eff.org
EFF's Letter to Zillow on Behalf of McMansion Hell [pdf]
https://www.eff.org/files/2017/06/29/wagner_eff_letter_to_zillow_-_2017.06.29.pdf
136 comments
Good points in the EFF letter that all web programmers (or programmers who use content from the web) should be aware of. The difference between "click wrap" and "browser wrap" ToS is extremely important, especially with web scraping.
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I accepted much better. The grammers and spellingses ate not goods.
Some previous discussion on this topic:
1) Zillow's 1st letter to Ms. Wagner: https://news.ycombinator.com/item?id=14639908
2) Commentary on the wrongness of Zillow's 2nd letter to Ms. Wagner: https://news.ycombinator.com/item?id=14656242
1) Zillow's 1st letter to Ms. Wagner: https://news.ycombinator.com/item?id=14639908
2) Commentary on the wrongness of Zillow's 2nd letter to Ms. Wagner: https://news.ycombinator.com/item?id=14656242
The EFF presents a fairly strong argument here.
I don't think Zillow had much of a case before, but this certainly makes it clear that they will not be able to scare McMansion Hell into submission. Zillow, if they want to achieve an outcome they want, will have to press this in court where they will likely lose.
Curious to see the response from Zillow here, though I've already created my Red Fin account and will likely not bother to go back to Zillow.
I don't think Zillow had much of a case before, but this certainly makes it clear that they will not be able to scare McMansion Hell into submission. Zillow, if they want to achieve an outcome they want, will have to press this in court where they will likely lose.
Curious to see the response from Zillow here, though I've already created my Red Fin account and will likely not bother to go back to Zillow.
Except they achieved the outcome that they stated they wanted. EFF says McMansion Hell won’t use photos from Zillow moving forward.
She doesn't have to change her old photos. She's just not going to use any more. Which -- well, I can imagine not wanting to have anything to do with Zillow in the future. Or to give them free advertising by referring to them for each photo caption. I quite like the idea that her future posts will say "Images from Redfin, a pretty awesome site that isn't threatening to sue me for using images for purposes of education, commentary, and parody." :)
But seriously, she won the most important thing: Her entire existing body of work is going to remain available.
But seriously, she won the most important thing: Her entire existing body of work is going to remain available.
In their original letter, Zillow's first demand was that Kate Wagner confirm that she has "stopped, and will not in the future, access or otherwise use the Zillow Site or Images," which she has now done.
Even in the worst case scenario, the internet was going to keep Wagner's original celebrated body of work available.
I dislike the idea that Zillow's legal goons can now guarantee Zillow's sellers that their photos won't be subject to mockery by McMansion Hell.
Even in the worst case scenario, the internet was going to keep Wagner's original celebrated body of work available.
I dislike the idea that Zillow's legal goons can now guarantee Zillow's sellers that their photos won't be subject to mockery by McMansion Hell.
Zillow's initial demand letter included this:
"(ii) delete all images, and derivatives thereof, in Your possession and on Your site"
As Kate noted in her twitter feed, the decision to not use them in the future was hers:
https://twitter.com/mcmansionhell/status/880517699725668352
https://twitter.com/mcmansionhell/status/880517699725668352
The Innertubes may have kept her originals around, but being forced to delete them would have destroyed the value to her of a year of pretty concerted work on it. That would have acted as a very strong deterrent to speech.
"(ii) delete all images, and derivatives thereof, in Your possession and on Your site"
As Kate noted in her twitter feed, the decision to not use them in the future was hers:
https://twitter.com/mcmansionhell/status/880517699725668352
https://twitter.com/mcmansionhell/status/880517699725668352
The Innertubes may have kept her originals around, but being forced to delete them would have destroyed the value to her of a year of pretty concerted work on it. That would have acted as a very strong deterrent to speech.
So, this is what it looks like when you stick your metaphorical head into a buzzsaw ...
Zillow has been threatening small startups for years. Most just go away quietly. It's good to see people fighting back on their behalf.
There is a difference between a business and social commentary/satire. (But that doesn't mean they're not bullies.)
There is so little differentiating the real estate finding websites that something like this is enough for me to suggest to my home-searching friends to use a different service.
Zillow Group owns Zillow, Trulia, HotPads, RealEstate.com, and others. What else is there?
Redfin, whose UI I liked more than Zillows back when I was buying a house.
There's also realtor.com, which is the official site of the National Association of Realtors.
There's StreetEasy here in NYC... oh wait, that is ALSO owned by Zillow.
There's also openlistings. I don't like their search function as much as Zillow's but you can still find a decent selection in some markets.
I just renewed my EFF membership and would encourage others to do so as well.
I had not heard the term "browsewrap" before this but that part is very interesting in and of itself.
EFF is a public good, clearly we all benefit from them taking the time to draft this letter. This letter is merely between attorneys but has all of the work required for a legal brief including tons of citations of precedent.
Thanks, EFF!
Thanks, EFF!
everyone should donate! as someone mentioned on a previous post, they are giving away some cool swag as part of their Summer Security Camp right now if you donate (including a sweatshirt, with a $25 recurring monthly donation). EFF really does an immense amount of great work.
https://supporters.eff.org/donate/summer-security-camp-dd
https://supporters.eff.org/donate/summer-security-camp-dd
Also, though it may not add up to much, you can donate a small portion of your Amazon purchases to them through the Amazon Smile program. Install the SmileAlways extension and all your purchases will go through Smile
EFF isn't as good. They criticize NSA and other alleged privacy violators while it turns a blind eye on the worst offenders: google and facebook. I would not donate to them.
Wrong. EFF has gone after both Facebook and Google. Specifically, they filed an FTC complaint against Google claiming privacy violations, and they defended a client against a CFAA lawsuit from Facebook. This took 30 seconds to look up. I'm sure there's more examples, but I can't be arsed.
The FTC complaint was for student privacy:
https://www.eff.org/document/ftc-complaint-google-education
Their student privacy campaign has been invaluable to me, and I have used numerous EFF resources in (ongoing) correspondence and a meeting with assistant superintendents of my school district on precisely those topics.
https://www.eff.org/document/ftc-complaint-google-education
Their student privacy campaign has been invaluable to me, and I have used numerous EFF resources in (ongoing) correspondence and a meeting with assistant superintendents of my school district on precisely those topics.
And also initiatives such as:
https://www.eff.org/who-has-your-back-government-data-reques...
(and other years)
https://www.eff.org/who-has-your-back-government-data-reques...
(and other years)
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But we all let google and facebook take our data. However, what they criticize the NSA for is that they rarely follow the law and spy on people without them ever knowing
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So much in here is interesting (and right), but the best part I think comes at the end: Zillow doesn't own the images. So whether or not you there's a legal argument for fair use, Zillow has absolutely no right to file a copyright case in the first place because they don't own the images. As the EFF rightly points out, there is no "super copyright" that Zillow can exercise here. Really good stuff overall on fair use, but love that nice whopper at the end.
The "super copyright" comment has less to do with their ownership of the copyright, and more to do with the rest of the context about the owners not being able to exert copyright claims due to fair use. (This of course is predicated on the assertion that the usage does fall under fair use.) The "super copyright" comment is alluding to Zillow attempting to assert something that even the original owners cannot (i.e. a "superset" of copyright rights).
Curious question:
Why does it say CC Christopher Poole at the bottom of the letter? As in, the founder of 4chan?
I still don't understand what Zillow hoped to achieve by this. Zillow displays all types of housing, right? If anything, Kate's site gave Zillow free advertising.
Some of their clients, realtors, probably complained that their listings were being used as bad examples and were shown as coming from Zillow.
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Update: Zillow won't pursue any legal action.
> In a brief statement, Zillow said it will “not pursue any legal action.”
> "We’ve had a lot of conversations about this, including with attorneys from the EFF, whose advocacy and work we respect. EFF has stated that McMansion Hell won’t use photos from Zillow moving forward. It was never our intent for McMansion Hell to shut down or for this to appear as an attack on Kate’s freedom of expression. We acted out of an abundance of caution to protect our partners—the agents and brokers who entrust us to display photos of their clients’ homes."
https://arstechnica.com/tech-policy/2017/06/mcmansion-hell-i...
> In a brief statement, Zillow said it will “not pursue any legal action.”
> "We’ve had a lot of conversations about this, including with attorneys from the EFF, whose advocacy and work we respect. EFF has stated that McMansion Hell won’t use photos from Zillow moving forward. It was never our intent for McMansion Hell to shut down or for this to appear as an attack on Kate’s freedom of expression. We acted out of an abundance of caution to protect our partners—the agents and brokers who entrust us to display photos of their clients’ homes."
https://arstechnica.com/tech-policy/2017/06/mcmansion-hell-i...
Wait, so Zillow agreed to back down but McMansion Hell can't continue their (clearly legal) fair use of images fro Zillow's site? How is that a win for anyone but Zillow?
"moving forward" means future posts won't use Zillow images, but she doesn't have to take down any existing posts. Explanation: https://twitter.com/mcmansionhell/status/880538191094263808
Whether they _could_ is an open question. They voluntarily agreed not to, presumably since there are other sources for those images, so it isn't worth picking a fight over. The real hardship would have been in removing and replacing all the old images.
But isn't the EFF supposed to pick the fights based on principals? By agreeing to this compromise they really just gave all the Zillow's of the world more confidence that strong-arm tactics work.
Perhaps it's less "fine, I won't use it anymore if you don't sue" and more "I've decided to stop advertising your service for free on my website regardless of the outcome of this," and Zillow deciding to use the opportunity to gently remove their corporate dick from this particular beehive.
Except Zillow sort of won. So they are the beehive and McMansion is the dick being removed.
Very colorful
It's not the EFF's fight to pick, it's Kate Wagner's (the proprietor of the blog). It's pretty easy to imagine her not wanting to deal with a prolonged fight.
Plus, the EFF has limited resources and litigation would be time consuming. As long as they can fight back against the big companies by writing a letter, they can litigate for clients who face other companies who won't back down so quickly.
By providing the muscle necessary to protect the rights of Kate Wagner, they have won.
Which rights of Kate Wagner did they protect? She could have achieved the same thing by losing in court.
She isn't removing old posts that contain photos sourced from Zillow. If she had lost in court she might have had to do that.
She would have definitely had to do that, and probably she would have had enough monetary damages levied to bankrupt her. It's not reasonable to fault EFF for pursuing her best interests.
> It's not reasonable to fault EFF for pursuing her best interests.
That depends on whether you think the EFF's goal is more to protect the general well-being of Kate Wagner or to protect the idea that you can post pictures on the internet.
It's not reasonable to fault Kate Wagner for pursuing her own best interests, but what do those have to do with the EFF?
That depends on whether you think the EFF's goal is more to protect the general well-being of Kate Wagner or to protect the idea that you can post pictures on the internet.
It's not reasonable to fault Kate Wagner for pursuing her own best interests, but what do those have to do with the EFF?
The EFF is representing her. They are doing so because they have a more general goal, but they're still legally and ethically bound to respect her interests.
I might suggest that representing her in conflict with their institutional mission is not a good use of the EFF's resources, and replaces a conflict of interest between the EFF and Kate Wagner with a conflict of interest between the EFF and its own supporters.
I suggest you try viewing this more as an activity of fundraising than pushing for their main goals. All non-profits funded by small donations have to do such things, and this had a pretty good side-effect as well.
A zillow competitor should just swoop in and sponsor her.
Other users have made similar points that McMansion Hell was somehow advertising for Zillow by using their pictures, but why would you want to sponsor a blog whose express purpose is to make fun of or criticize listing on your site?
Because they're your listings — not your service. If someone saw McMansion Hell they may be inspired to find shitty listings of their own on Zillow, and maybe they just happen to create an account and consider using it to find non-shitty listings when they're ready to buy a house.
So... no forward guidance about fair use. It's very disappointing, the EFF is supposed to be on the good side of the law, it doesn't to serve popular bloggers! Who wouldn't love to play fly on the wall during negotiations?
Once a lawyer from the EFF takes her on as a client, even pro bono, it is absolutely their responsibility to serve her best interest.
As the letter pointed out, the guidance is well established, there's no need to drag out an innocent into yet another fight.
They all tell you to be bold in claiming fair use, the Chicago Manual gave the same advice 20 years ago, yet McMansion Hell is still down. EFF says one thing, Zillow says the opposite. What guidance are we supposed to believe? Is it like Torvalds when someone asked him if he had been approached by the 3-letter agencies?
The Zillows of this world will always threaten to sue and even actually sue regardless of the established precedents, because they don't need to win in court, they just need the other (weaker) side to lose money and time. There's nothing the EFF can do about that by pursuing this case.
If you dislike this, push for a federal anti-SLAPP law.
If you dislike this, push for a federal anti-SLAPP law.
Because Zillow is ultimately right here and her use of the images without Zillow's permission is against their terms of use (which contrary to the hand-wavy analysis in EFF's letter, is absolutely enforceable). However, Zillow doesnt have a lot of damages to recover from her use and definitely wants to avoid another big PR stink, so they get to back off gracefully, she agrees to stop saying she gets the pictures from Zillow (which is what they really wanted), and everything goes back to normal.
Just because Zillow has something in their terms of use that doesn't make it enforceable.
The EFF letter cites a bunch of cases where an arbitration clause was unenforceable because of the way the terms of service were presented, which has nothing to do with the current situation (whether a restriction on using images from Zillow is enforceable). I know it's not fashionable to express support for a big bad corporate machine over the little guy/gal, but I'm trying to share some actual information instead of just gush.
You're contradicting statements made with sources cited without citing any of your own, or explaining how they would nullify the other points made on why this use is acceptable.
When lawyers write letters, they will throw everything they can possibly think of and the kitchen sink, even if it's not relevant. Many of the cites in the letter are not relevant to this situation (I'm not going through every one, but just as an example):
The letter says:
"But Wagner is not bound by your Terms of Use and, even if she were, the relevant provisions are unenforceable. Courts routinely decline to enforce “browsewrap” agreements like Zillow’s Terms of Use, which fail to present terms except via a hyperlink and without a checkbox to signal assent. See, e.g., Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014); Meyer v. Kalanick, 199 F. Supp. 3d 752 (S.D. N.Y. 2016); Be In, Inc. v. Google Inc., No. 12-CV-03373-LHK, 2013 WL 5568706, at *9 (N.D. Cal. Oct. 9, 2013); Kwan v. Clearwire Corp., No. C09-1392JLR, 2012 WL 32380 (W.D. Wash. Jan. 3, 2012)."
Nguyen v. Barnes & Noble Inc., - court declined to apply arbitration clause (https://en.wikipedia.org/wiki/Nguyen_v._Barnes_%26_Noble,_In...) Meyer v. Kalanick, - court declined to apply arbitration clause (http://blog.ericgoldman.org/archives/2016/08/judge-declines-...) Kwan v. Clearwire Corp. - court declined to apply arbitration clause (http://blog.ericgoldman.org/archives/2012/02/kwan_v_clearwir...) Don't have a link to the Google case, but I would be shocked if it werent the same issue.
Do you see how the very first paragraph where they start citing has very little to do with the actual issue? Translation: "Hey Zillow, first of all your terms of service arent enforceable, see these 4 cases, all of which have to do with whether an arbitration clause could be applied and have nothing to do with the current situation."
2nd paragraph: "Even if an agreement were formed, paragraph 14 of the Terms of Use, asserting Zillow’s right to alter the contract without notice or justification, would render the agreement illusory and void for lack of consideration. See, e.g., Cheek v. United Healthcare of Mid-Atl., Inc., 378 Md. 139, 144, 835 A.2d 656, 659 (2003); Interchange Assocs. v. Interchange, Inc., 16 Wash. App. 359, 362, 557 P.2d 357, 359 (1976)."
Again, nothing to do with the situation at hand
Cheek v. United Healthcare of Mid-Atl., Inc. - arbitration clause in an employee handbook held unenforceable (http://www.whaylaw.com/employee-arbitration-agreement) Interchange Assocs. v. Interchange, Inc. - an agreement where directors agreed to serve 10 years or until they resigned was an "illusory promise" and did not provide sufficient consideration for a contract (http://courts.mrsc.org/appellate/016wnapp/016wnapp0359.htm)
Again, neither of these are really relevant to the situation. I'll stop here but I hope you get the gist of it. Here's what happened - some junior lawyer at EFF spend 4-5 researching all the cases they thought would be remotely relevant and threw them in there because hey it looks impressive, but if you spend some time digging into them the truth quickly becomes apparent.
(I don't work for Zillow or EFF)
The letter says:
"But Wagner is not bound by your Terms of Use and, even if she were, the relevant provisions are unenforceable. Courts routinely decline to enforce “browsewrap” agreements like Zillow’s Terms of Use, which fail to present terms except via a hyperlink and without a checkbox to signal assent. See, e.g., Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014); Meyer v. Kalanick, 199 F. Supp. 3d 752 (S.D. N.Y. 2016); Be In, Inc. v. Google Inc., No. 12-CV-03373-LHK, 2013 WL 5568706, at *9 (N.D. Cal. Oct. 9, 2013); Kwan v. Clearwire Corp., No. C09-1392JLR, 2012 WL 32380 (W.D. Wash. Jan. 3, 2012)."
Nguyen v. Barnes & Noble Inc., - court declined to apply arbitration clause (https://en.wikipedia.org/wiki/Nguyen_v._Barnes_%26_Noble,_In...) Meyer v. Kalanick, - court declined to apply arbitration clause (http://blog.ericgoldman.org/archives/2016/08/judge-declines-...) Kwan v. Clearwire Corp. - court declined to apply arbitration clause (http://blog.ericgoldman.org/archives/2012/02/kwan_v_clearwir...) Don't have a link to the Google case, but I would be shocked if it werent the same issue.
Do you see how the very first paragraph where they start citing has very little to do with the actual issue? Translation: "Hey Zillow, first of all your terms of service arent enforceable, see these 4 cases, all of which have to do with whether an arbitration clause could be applied and have nothing to do with the current situation."
2nd paragraph: "Even if an agreement were formed, paragraph 14 of the Terms of Use, asserting Zillow’s right to alter the contract without notice or justification, would render the agreement illusory and void for lack of consideration. See, e.g., Cheek v. United Healthcare of Mid-Atl., Inc., 378 Md. 139, 144, 835 A.2d 656, 659 (2003); Interchange Assocs. v. Interchange, Inc., 16 Wash. App. 359, 362, 557 P.2d 357, 359 (1976)."
Again, nothing to do with the situation at hand
Cheek v. United Healthcare of Mid-Atl., Inc. - arbitration clause in an employee handbook held unenforceable (http://www.whaylaw.com/employee-arbitration-agreement) Interchange Assocs. v. Interchange, Inc. - an agreement where directors agreed to serve 10 years or until they resigned was an "illusory promise" and did not provide sufficient consideration for a contract (http://courts.mrsc.org/appellate/016wnapp/016wnapp0359.htm)
Again, neither of these are really relevant to the situation. I'll stop here but I hope you get the gist of it. Here's what happened - some junior lawyer at EFF spend 4-5 researching all the cases they thought would be remotely relevant and threw them in there because hey it looks impressive, but if you spend some time digging into them the truth quickly becomes apparent.
(I don't work for Zillow or EFF)
The "Nguyen v. Barnes & Noble Inc" decision is absolutely relevant. It's true that they were arguing about whether an arbitration clause applied, but what's important is the analysis the court used to determine that it did not. The distinction between clickwrap agreements (where you click a checkbox to say you agree) and browsewrap agreements (where you're expected to see some notice buried in the footer about the terms of service) was critical to the court's analysis in Nguyen. In the opinion, the court cites a long line of precedents to show that if a browesewrap agreement is sufficiently well-buried that it does not put a "reasonably prudent user on inquiry notice of the terms of the contract" then it does not apply.
You could try to draw a distinction by showing that this particular browsewrap agreement was more prominently featured than the one at issue in Nguyen, but you don't get to just hand-wave it away by saying that it was about an arbitration clause.
You could try to draw a distinction by showing that this particular browsewrap agreement was more prominently featured than the one at issue in Nguyen, but you don't get to just hand-wave it away by saying that it was about an arbitration clause.
Flip it around - courts decide not to apply arbitration provisions because it involves giving up a key right (jury trial), so they find that there was no meeting of the minds in the TOS given the manner it was presented. Essentially, if a browsewrap TOS is not presently prominently enough to let you to make an educated decision on waiving your right to a jury trial, you get to keep your right to a jury trial.
You dont have this situation when the issue is whether you have the ability to use a provider's images for non-permitted purposes. Your right to use someone's images how you like is not nearly as important as your right to a jury trial. I'm not aware of any case where non-arbitration provisions of a TOS were not applied due to browsewrap reasons, if you are aware of any I'd love to see them.
EFF's argument would be totally valid if Zillow was trying to force McMansion into arbitration. That's not the issue here, and it's misleading to start off with "your TOS are unenforceable [because courts have declined to apply arbitration provisions in certain browsewrap TOS contexts]"
You dont have this situation when the issue is whether you have the ability to use a provider's images for non-permitted purposes. Your right to use someone's images how you like is not nearly as important as your right to a jury trial. I'm not aware of any case where non-arbitration provisions of a TOS were not applied due to browsewrap reasons, if you are aware of any I'd love to see them.
EFF's argument would be totally valid if Zillow was trying to force McMansion into arbitration. That's not the issue here, and it's misleading to start off with "your TOS are unenforceable [because courts have declined to apply arbitration provisions in certain browsewrap TOS contexts]"
As for the character of the case law, that's primarily because people don't go to court over things like this, they just file DMCA notices which are rarely litigated very far. The cases are all arbitration clauses because the parties had something else they wanted to sue for and they had to overturn that clause first.
As a reminder, Zillow cannot, here, file a DMCA notice because they lack the copyrights with which to do so, and pretending to represent a copyright owner you do not in fact represent is contrary to the statement you sign under penalty of perjury when filing a (non-defective) DMCA notice.
You never did address 15 USC 45b, either, which further undermines their claims of ToS enforceability -- https://www.law.cornell.edu/uscode/text/15/45b
And I'm really not clear why you think one's first amendment rights would have less weight than sixth amendment rights? You haven't really articulated a theory as to why one is important and the other is not.
If you're going to pick apart an argument why not Zillow's? Their claim under the CFAA is ridiculous and it was already shot down in US v. Nosal.
"The Ninth Circuit's first ruling (Nosal I) established that employees have not "exceeded authorization" for the purposes of the CFAA if they access a computer in a manner that violates the company's computer use policies—if they are authorized to access the computer and do not circumvent any protection mechanisms."
https://en.wikipedia.org/wiki/United_States_v._Nosal
As a reminder, Zillow cannot, here, file a DMCA notice because they lack the copyrights with which to do so, and pretending to represent a copyright owner you do not in fact represent is contrary to the statement you sign under penalty of perjury when filing a (non-defective) DMCA notice.
You never did address 15 USC 45b, either, which further undermines their claims of ToS enforceability -- https://www.law.cornell.edu/uscode/text/15/45b
And I'm really not clear why you think one's first amendment rights would have less weight than sixth amendment rights? You haven't really articulated a theory as to why one is important and the other is not.
If you're going to pick apart an argument why not Zillow's? Their claim under the CFAA is ridiculous and it was already shot down in US v. Nosal.
"The Ninth Circuit's first ruling (Nosal I) established that employees have not "exceeded authorization" for the purposes of the CFAA if they access a computer in a manner that violates the company's computer use policies—if they are authorized to access the computer and do not circumvent any protection mechanisms."
https://en.wikipedia.org/wiki/United_States_v._Nosal
Meekro's point is compelling; to me it doesn't look like you read the Wikipedia page on that case beyond the "holding".
It's very clear (in everything but the Holding synopsis)) that court sees the ability for browserwrap to hold over a website visitor is contingent on affirmative action being required of a website visitor. That makes the citation more than just pertinent but a knockout if Zillow is arguing that McMansion Hell were bound by their ToS, and so ...
That said I can't see the court acceding that ToS overrule Fair Use for reporting/critique/parody/education as that would neuter Fair Use completely.
It's very clear (in everything but the Holding synopsis)) that court sees the ability for browserwrap to hold over a website visitor is contingent on affirmative action being required of a website visitor. That makes the citation more than just pertinent but a knockout if Zillow is arguing that McMansion Hell were bound by their ToS, and so ...
That said I can't see the court acceding that ToS overrule Fair Use for reporting/critique/parody/education as that would neuter Fair Use completely.
You (and most people in this thread, and discussing this on the Internet) are confusing 2 completely separate concepts.
Fair use is a COPYRIGHT doctrine. It is part of the US copyright law that says, creators of a copyright can enforce their rights against people who misuse their creations, except in certain cases, fair use being one of them. So if Zillow brings a claim under the US Copyright act, McMansion can assert a fair use defense. (https://www.copyright.gov/fair-use/more-info.html)
Zillow's terms of service is a CONTRACT. It is separate from whether Zillow can bring a copyright claim. They could sue for both breach of contract and copyright infringement. Fair use is a legitimate defense for the copyright infringement claim (and I agree would likely be successful). It is NOT a defense for the breach of contract claim. There is no such thing as "TOS overriding fair use" because they are on separate and distinct tracks. ("However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.[21]" - https://en.wikipedia.org/wiki/Fair_use)
As for whether the arbitration cases show that restrictions on use of proprietary images on browsewrap TOS are enforceable, we'll agree to disagree - jury trials are a far more important right (as someone below pointed out) than whether you can use someone's proprietary images for your own purpose. I find it difficult to believe a judge or jury could (fairly) find that there is no 'meeting of the minds' on whether you can take and use any images, website content, code, etc. you feel like from someone's website or online product under a browsewrap license. It's a significantly different issue than whether an arbitration clause can be enforced. I would argue that most people know that 'taking things from other people is bad and not allowed' without requiring prominent notice on a website about it. But this case will be litigated, so we'll never know.
Fair use is a COPYRIGHT doctrine. It is part of the US copyright law that says, creators of a copyright can enforce their rights against people who misuse their creations, except in certain cases, fair use being one of them. So if Zillow brings a claim under the US Copyright act, McMansion can assert a fair use defense. (https://www.copyright.gov/fair-use/more-info.html)
Zillow's terms of service is a CONTRACT. It is separate from whether Zillow can bring a copyright claim. They could sue for both breach of contract and copyright infringement. Fair use is a legitimate defense for the copyright infringement claim (and I agree would likely be successful). It is NOT a defense for the breach of contract claim. There is no such thing as "TOS overriding fair use" because they are on separate and distinct tracks. ("However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.[21]" - https://en.wikipedia.org/wiki/Fair_use)
As for whether the arbitration cases show that restrictions on use of proprietary images on browsewrap TOS are enforceable, we'll agree to disagree - jury trials are a far more important right (as someone below pointed out) than whether you can use someone's proprietary images for your own purpose. I find it difficult to believe a judge or jury could (fairly) find that there is no 'meeting of the minds' on whether you can take and use any images, website content, code, etc. you feel like from someone's website or online product under a browsewrap license. It's a significantly different issue than whether an arbitration clause can be enforced. I would argue that most people know that 'taking things from other people is bad and not allowed' without requiring prominent notice on a website about it. But this case will be litigated, so we'll never know.
>There is no such thing as "TOS overriding fair use" because they are on separate and distinct tracks. //
I don't know it to be certainly true, if you can cite something solid on the point I'd be happy: however in general there is such a principle, that certain rights can't be disclaimed.
Taking a logical approach - and law is not always logical - Fair Use could be disclaimed, eg in a ToS, then all Media corps would say words to the effect "this work can't be used under USC's Fair Use legislation" and the democratic law would then be subverted entirely.
Per your final para, most people do know infringement (no one 'took' anything, it's a copy) is not allowed [tortuous]. But, Fair Use very rightly allows copying for parody, reporting, education and similar purposes. They also know that no matter what you try to claim about not using images of your product, news and review, parody and education _are still allowed_ (not in all jurisdictions, however).
The established precedent is n that a browsewrap license needs affirmative action - checkbox, click-thru/interstitial, etc. - this precedent means nothing written in the license is pertinent, the viewer isn't party to the contract.
I don't know it to be certainly true, if you can cite something solid on the point I'd be happy: however in general there is such a principle, that certain rights can't be disclaimed.
Taking a logical approach - and law is not always logical - Fair Use could be disclaimed, eg in a ToS, then all Media corps would say words to the effect "this work can't be used under USC's Fair Use legislation" and the democratic law would then be subverted entirely.
Per your final para, most people do know infringement (no one 'took' anything, it's a copy) is not allowed [tortuous]. But, Fair Use very rightly allows copying for parody, reporting, education and similar purposes. They also know that no matter what you try to claim about not using images of your product, news and review, parody and education _are still allowed_ (not in all jurisdictions, however).
The established precedent is n that a browsewrap license needs affirmative action - checkbox, click-thru/interstitial, etc. - this precedent means nothing written in the license is pertinent, the viewer isn't party to the contract.
The federal arbitration act and numerous Supreme Court cases interpreting it (many involving summary reversals) forbid discriminating against arbitration provisions in the manner you suggest. Neither state nor federal courts can apply a stricter rule to provisions involving agreements to arbitrate versus any other kind of contract provision.
See for but one of many examples Kindred Nursing Centers Limited Partnership v. Clark from last month.
See for but one of many examples Kindred Nursing Centers Limited Partnership v. Clark from last month.
The EFF was clearly pushing for a broader ruling on browsewrap enforceability. In my view, if a court threw out a browsewrap arb clause, it would also throw out the terms that purport to override fair use and the first amendment.
No, Zillow's TOU is absolutely non-enforceable. Illegal TOUs are still illegal. Care to disagree?
P.S. By replying to this post, you, "non_sequitur", agree to pay me $500 for every character in your response.
P.S. By replying to this post, you, "non_sequitur", agree to pay me $500 for every character in your response.
> which contrary to the hand-wavy analysis in EFF's letter, is absolutely enforceable
Uh...no. It's not.
Uh...no. It's not.
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for those who object to the compromise, how much should mcmansion-hell and the EFF have been willing to spend to fight? It would be many thousands of $$$
I <3 EFF
Man I love a good smack down letter :-). This one is typical of the genre, in terms of content and well executed. I particularly like that they cite the Righthaven LLC case because a really good letter points out all the scumbags who have tried to do what you are trying to do and lets the reader know you think they are scumbags without actually having to call that out directly.
I wonder if they would be interested in writing a letter to the "JustPrintIt 3D" people. (see video https://www.youtube.com/watch?v=NPnhkQZ9fzM)
I wonder if they would be interested in writing a letter to the "JustPrintIt 3D" people. (see video https://www.youtube.com/watch?v=NPnhkQZ9fzM)
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2017-06-29
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I am grateful for the EFF and the work they do taking on Internet copyright bullies. Well done.
Thanks EFF. Should I ever get a threatening letter from a Big Corp, I'm def going to use this letter as a template to respond and save myself some lawyer fees.
I thought this was particularly interesting:
Third, Zillow cannot leverage its agreements with third parties to assert some kind of ‘super copyright’ that overrides fair use. The original copyright owners could not deny Wagner permission to make fair use of the photographs. See Lenz v. Universal Music Corp., 815 F.3d 1145, 1152 (9th Cir. 2016) (a fair use is not an infringement of copyright). Zillow, which does not even own the relevant copyrights, cannot then assert rights that the original copyright owners could not assert.
If only more platforms, publishers, and creators took this concept to heart.
Third, Zillow cannot leverage its agreements with third parties to assert some kind of ‘super copyright’ that overrides fair use. The original copyright owners could not deny Wagner permission to make fair use of the photographs. See Lenz v. Universal Music Corp., 815 F.3d 1145, 1152 (9th Cir. 2016) (a fair use is not an infringement of copyright). Zillow, which does not even own the relevant copyrights, cannot then assert rights that the original copyright owners could not assert.
If only more platforms, publishers, and creators took this concept to heart.
Thank you EFF!
Does anyone know of any thoughtful writeups that make the case from Zillow's point of view?
Well, this isn't a particularly thoughtful take on it, but my uneducated guess would be "oh shit. Realtors posting pictures on Zillow are pissed that this blog exists and is mocking the houses they're listing. We gotta figure out how to shut that down."
If I read things right, the pictures were being used were actually from MLS sites, and Zillow was using them on their site.
A large goal of the site is to take the different closed off MLS listings and aggregate them on one site for people to find.
But, working with the MLS sites is extremely hard to do and they require sometimes large fees and have very strict/weird requirements to use the data.
The big thing with Zillow, is that a problem for them is having access to as many MLS listings as possible, since most of the realtors use the MLS to post homes. Without these, its basically just a price estimator and search engine for homes.
Zillow already has a tenuous relationship with the MLS sites and most likely pursued the lawsuit to prove to the MLS sites they are serious about the use of their images, and likely were worried about this affecting their relationship with some of those listing agencies.
Although only speculation, I see this as more likely than the lawyers just going after this to be a bully (but they still probably did the wrong thing either way).
A large goal of the site is to take the different closed off MLS listings and aggregate them on one site for people to find.
But, working with the MLS sites is extremely hard to do and they require sometimes large fees and have very strict/weird requirements to use the data.
The big thing with Zillow, is that a problem for them is having access to as many MLS listings as possible, since most of the realtors use the MLS to post homes. Without these, its basically just a price estimator and search engine for homes.
Zillow already has a tenuous relationship with the MLS sites and most likely pursued the lawsuit to prove to the MLS sites they are serious about the use of their images, and likely were worried about this affecting their relationship with some of those listing agencies.
Although only speculation, I see this as more likely than the lawyers just going after this to be a bully (but they still probably did the wrong thing either way).
I was loving this letter until this part near the end.
> In the interests of compromise, and because Wagner no longer wishes to use Zillow’s website, she will no longer source photographs from Zillow for her blog.
What an unnecessary and obnoxious capitulation. Zillow pretty much got what they wanted by doing what they did. Poppycock.
> In the interests of compromise, and because Wagner no longer wishes to use Zillow’s website, she will no longer source photographs from Zillow for her blog.
What an unnecessary and obnoxious capitulation. Zillow pretty much got what they wanted by doing what they did. Poppycock.
>CC (by email): Christopher Poole
Very interesting - it does make sense that moot would have relationships with the EFF.
Very interesting - it does make sense that moot would have relationships with the EFF.
> McMansion Hell educates the public about architectural concepts, urban planning, environmentalism, and history.
That's simply not true. It's ludicrous.
At the EFF level, this is a complete waste of time. There are more than a few instances of fair use out there that are defensible and are worthy of protection efforts. McMansion Hell provides a fraction of the public value that Perez Hilton does - and like most people I consider his site a black mark in societies history.
I get that everybody deserves a level of protection, but everybody does not get it. Resources are thin. EFF should be focusing on more important pursuits.
That's simply not true. It's ludicrous.
At the EFF level, this is a complete waste of time. There are more than a few instances of fair use out there that are defensible and are worthy of protection efforts. McMansion Hell provides a fraction of the public value that Perez Hilton does - and like most people I consider his site a black mark in societies history.
I get that everybody deserves a level of protection, but everybody does not get it. Resources are thin. EFF should be focusing on more important pursuits.
> EFF should be focusing on more important pursuits.
Your opinion of that website has absolutely no bearing on whether EFF should focus on defending them. This is a clear First Amendment case with digital rights square in the middle. Zillow is attempting to exert copyright claims against a blogger when Zillow owns zero copyright on the photos in question.
This case is exactly what EFF is all about, hell it's what their name means.
Don't let your own biases block out common sense.
Your opinion of that website has absolutely no bearing on whether EFF should focus on defending them. This is a clear First Amendment case with digital rights square in the middle. Zillow is attempting to exert copyright claims against a blogger when Zillow owns zero copyright on the photos in question.
This case is exactly what EFF is all about, hell it's what their name means.
Don't let your own biases block out common sense.
This is not a first amendment case at all. Freedom of expression has nothing to do with the privilege to use images posted on a website.
The SCOTUS disagrees,
We have repeatedly rejected First Amendment challenges to injunctions from copyright infringement on the ground that First Amendment concerns are protected by and coextensive with the fair use doctrine.
We have repeatedly rejected First Amendment challenges to injunctions from copyright infringement on the ground that First Amendment concerns are protected by and coextensive with the fair use doctrine.
This is not a copyright issue. Copyright was peripherally mentioned in the C&D and not the basis of the C&D. Copyright does not belong to Zillow, as they mentioned themselves directly in the C&D.
What's ludicrous is acting certain when you obviously don't have any experience with the site. I looked through that site for a few hours, at some point during the past year. It's very insightful and addresses one of the most difficult aspects of design thinking, namely when to use conventional forms and when to violate them.
Provide a link to the post that you feel most exemplifies the site's educational value containing information about architectural concepts, urban planning, environmentalism, or history.
I guess you can't be bothered to look for yourself, so here is a recent post about architecture concepts.
http://mcmansionhell.com/post/161514422581/mmh-does-architec...
There are many such posts (explicitly theoretical/academic) in the site's history. More importantly, the day to day "McMansion" posts actually back up the theoretical concepts expressed in such posts. Much the way we programmers use both positive and negative examples of Design Patterns.
If you are not aware -- and it seems like you aren't -- the Design Patterns movement in software was inspired by an architecture book that did much the same thing -- showing patterns and anti-patterns -- just with less hipsterism, and more examples than counterexamples.
http://mcmansionhell.com/post/161514422581/mmh-does-architec...
There are many such posts (explicitly theoretical/academic) in the site's history. More importantly, the day to day "McMansion" posts actually back up the theoretical concepts expressed in such posts. Much the way we programmers use both positive and negative examples of Design Patterns.
If you are not aware -- and it seems like you aren't -- the Design Patterns movement in software was inspired by an architecture book that did much the same thing -- showing patterns and anti-patterns -- just with less hipsterism, and more examples than counterexamples.
That post provides no educational value whatsoever.
Lol I don't believe it's worth my time to argue this further, since you haven't made any actual arguments, and you come off as kind of a jerk with all the unsupported claims, not responding to my points, and demanding that I do work for you. Sorry you are blind to this. If you want to understand your deficiencies in this area I'd recommend reading A Pattern Language by Christopher Alexander, followed by Design Patterns by the 'Gang of Four', then thinking about the connection between architectural pattern languages and cutting edge software design. Perhaps think about why programmers have taken the time to assemble libraries of anti-pattern examples specifically, analogous to McMansion Hell's.
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> Resources are thin. EFF should be focusing on more important pursuits.
I doubt the EFF spent more than a day or two of a lawyer's time on this case, and they got some good publicity out of it too. It's not like they splashed out millions of dollars.
I doubt the EFF spent more than a day or two of a lawyer's time on this case, and they got some good publicity out of it too. It's not like they splashed out millions of dollars.
People all around the country receive similar C&D letters every day. Many of them actually are clear cut cases of fair use. All I'm saying is that they could have picked any of those cases to spend their time on.
The EFF does not have unlimited resources to defend every single C&D case across the country. They pick and choose their cases to have the maximum impact and provide the best precedent for future cases. And they act according to the mandate of their supporters, with which they seem to be in very good alignment in this instance.
If you really believe the EFF's time and resources would be better spent on some of these mysterious other cases you reference, and assuming you are a supporter, then write them a letter stating your arguments. I'm sure they will reply. Hell, write an open letter. I'm sure one way or the other you'll either open their eyes to the merit of your cause, or more likely, learn exactly why they can't devote resources to its pursuit.
Either way, you'll be doing a hell of a lot more than simply complaining here, which is useless.
If you really believe the EFF's time and resources would be better spent on some of these mysterious other cases you reference, and assuming you are a supporter, then write them a letter stating your arguments. I'm sure they will reply. Hell, write an open letter. I'm sure one way or the other you'll either open their eyes to the merit of your cause, or more likely, learn exactly why they can't devote resources to its pursuit.
Either way, you'll be doing a hell of a lot more than simply complaining here, which is useless.
Which is it? They didn't spend much time or they don't have unlimited resources?
> mysterious other cases you reference
Are you actually disputing that this doesn't happen every day? Google receives 2M takedown notices each day - and that's a stat from 2008. Those are directly related to copyright disputes, not peripherally referencing them like this case.
> mysterious other cases you reference
Are you actually disputing that this doesn't happen every day? Google receives 2M takedown notices each day - and that's a stat from 2008. Those are directly related to copyright disputes, not peripherally referencing them like this case.
1. Both
2. Not sure what you're trying to say. The EFF is not a free lawyer service. It exists to defend and enhance civil liberties and freedom of speech and is thus very picky about the cases it takes, and rightly so. For more information see https://www.eff.org/pages/legal-assistance
Quoting google DMCA stats is totally irrelevant. What's your point?
2. Not sure what you're trying to say. The EFF is not a free lawyer service. It exists to defend and enhance civil liberties and freedom of speech and is thus very picky about the cases it takes, and rightly so. For more information see https://www.eff.org/pages/legal-assistance
Quoting google DMCA stats is totally irrelevant. What's your point?
Its funny how giant douchebags who are trying to "mitigate their risks" never seem to perceive the risk of everyone realizing they are giant douchebags.
For those who don't know the history of the EFF, it is detailed in Bruce Sterling's "The Hacker Crackdown" which is available here http://www.mit.edu/hacker/hacker.html and on Amazon. The guy behind Lotus 1-2-3, Mitch Kapor, spent a sizable portion of his spreadsheet fortune setting it up. The events that Kapor and other founders were responding to make quite the riveting tale.
For those who don't know the history of the EFF, it is detailed in Bruce Sterling's "The Hacker Crackdown" which is available here http://www.mit.edu/hacker/hacker.html and on Amazon. The guy behind Lotus 1-2-3, Mitch Kapor, spent a sizable portion of his spreadsheet fortune setting it up. The events that Kapor and other founders were responding to make quite the riveting tale.
>Its funny how giant douchebags who are trying to "mitigate their risks" never seem to perceive the risk of everyone realizing they are giant douchebags.
The market doesn't really care if you're a giant douchebag so it doesn't matter to them if everyone finds out.
The market doesn't really care if you're a giant douchebag so it doesn't matter to them if everyone finds out.
I mean you obviously have a point, since Zillow exists despite doing what they do. On the other hand, my parents are buying and selling a house right now and I just encouraged my mom to switch to Redfin based on recommendations in this post. As long as there are people who care about this kind of thing it will have some impact.
Douchebag-driven PR disasters aren't good for biz.
The crazy thing about this is that if Zillow had sent a nice email to the McMansion Hell author and buttered her up a little, maybe offered her some paid guest blogging opportunities- They probably could have convinced her to stop using Zillow-sourced photos for a tiny fraction of what they paid their lawyers (not to mention the damaged brand capitol).
I could imagine a different version of this where they sponsored an artist/illustrator so she doesn't have to use photos of real houses if that's what they were worried about. It would have been a great fit for their brand, a weekly "what to look for in your next house, sponsored by Zillow" feature or something. Instead they just stuck their finger in their eye for no reason.
I could imagine a different version of this where they sponsored an artist/illustrator so she doesn't have to use photos of real houses if that's what they were worried about. It would have been a great fit for their brand, a weekly "what to look for in your next house, sponsored by Zillow" feature or something. Instead they just stuck their finger in their eye for no reason.
I'm sure some exec on zillow's marketing team thinks that someone making fun of some houses will hurt their business. Everyone working for this exec thought they were stupid for pursuing it, but they don't want to lose their jobs over it so they just roll their eyes and ignore it.
TIL: there's a list of open source projects for the EFF that anyone can contribute to
https://www.eff.org/about/opportunities/volunteer/coding-wit...
https://www.eff.org/about/opportunities/volunteer/coding-wit...
This is the kind of argumentative writing I used to show my students when they wrote essays. It doesn't argue against a strawman, but instead demonstrates that even the most charitable interpretation of the opponent's argument won't stand up to scrutiny, even if some of the opponent's more contentious premises are assumed to be true.
For example:
Zillow's terms of use are unenforceable because they are browsewrap agreements, but even if Wagner had agreed to the terms of use, they would still be unenforceable because they contain unconscionable clauses in several different places.
Zillow doesn't hold a copyright to the photos, but even if they did, Wagner would be protected by a fair use defense.
I have no idea how a judge would rule in this case, but this is definitely good persuasive writing.
For example:
Zillow's terms of use are unenforceable because they are browsewrap agreements, but even if Wagner had agreed to the terms of use, they would still be unenforceable because they contain unconscionable clauses in several different places.
Zillow doesn't hold a copyright to the photos, but even if they did, Wagner would be protected by a fair use defense.
I have no idea how a judge would rule in this case, but this is definitely good persuasive writing.
As someone who listened to quite a lot of court cases (did you know that the Ninth Circuit has a YouTube channel?), it's quite common for judges to ask "if we rule that your argument X is invalid, do you lose?", giving the opportunity for lawyers to make that kind of alternative argument.
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This is a really beautiful legal document. It's concise, readable to someone not a legal professional, includes ample citations (and sometimes summaries of cited works), and is convincing using very simple, isolated, well structured arguments.
If I ever need a lawyer, this is exactly the caliber of document I'd hope they put out.
If I ever need a lawyer, this is exactly the caliber of document I'd hope they put out.
> “may violate” the Computer Fraud and Abuse Act (CFAA)
Oh wow, just saw that. So Zillow is throwing everything at the wall including "she is hacking us".
Well one good thing is it looks like McMansion Hell's Patreon account will get bumped up with a few more zeroes at the end. And Zillow just gave her free advertising and in the process managed to embarrass themselves.
Doesn't anyone there do any kind of risk analysis? Even from their totally selfish corporate perspective, someone should have said "attacking a fairly popular blogger and accusing her of CFAA crimes and other crap is probably going to end up not benefiting us, and may hurt our reputation". It would seem like a no-brainer...
Oh wow, just saw that. So Zillow is throwing everything at the wall including "she is hacking us".
Well one good thing is it looks like McMansion Hell's Patreon account will get bumped up with a few more zeroes at the end. And Zillow just gave her free advertising and in the process managed to embarrass themselves.
Doesn't anyone there do any kind of risk analysis? Even from their totally selfish corporate perspective, someone should have said "attacking a fairly popular blogger and accusing her of CFAA crimes and other crap is probably going to end up not benefiting us, and may hurt our reputation". It would seem like a no-brainer...
The CFAA is a really, really nasty law. According to some interpretations, you are breaking it any time you violate the tiny terms of use at the bottom of a website. So basically anybody could get convicted if the prosecution really wants to. Somebody got convicted for pretending to be a fictional person on myspace, but it was overturned (granted, the person was cyberbullying that resulted in a suicide, but still)
https://en.wikipedia.org/wiki/Suicide_of_Megan_Meier