Zillow's second letter about McMansion Hell is still wrong(techdirt.com)
techdirt.com
Zillow's second letter about McMansion Hell is still wrong
https://www.techdirt.com/articles/20170628/01531037682/zillow-still-doesnt-get-it-second-letter-about-mcmansion-hell-is-still-just-wrong.shtml
115 comments
But Zillow is explicitly claiming that they do not claim copyright on the images. So the McMansion Hell person doesn't need to claim fair use.
I'm having a hard time seeing what exactly Zillow hopes to achieve? Do they think it's working?
I'm having a hard time seeing what exactly Zillow hopes to achieve? Do they think it's working?
Zillow likely has a clause in their contracts with MLS/wherever else they get these pictures, that they cant allow the pics to be used for any other purpose other than for posting on Zillow. They are trying to enforce this since they have apparently gotten dinged by suppliers in the past. Since they found a blog that explicitly stated "i got these pics from Zillow," they had a lawyer who had apparently been working there ~1 month send out a standard C&D letter, even though the facts didnt exactly fit (when all you have is a hammer, everything looks like a nail, etc.). It obviously became a PR disaster for them but could also have just gone the opposite way where a no name blog using their pics stopped doing it. It was obviously a mistake but I'm sure there was no malice on their part, the rash of people rushing to condemn them for stifling free speech are being silly. It was a standard process thing that didnt quite fit and got blown out of proportion, i'm sure everyone has encountered some form of it in their job before.
All she has/had to do was take out that statement that 'it's from Zillow' and the problem goes away, Zillow doesnt care where you get pics from as long as they have no liability.
All she has/had to do was take out that statement that 'it's from Zillow' and the problem goes away, Zillow doesnt care where you get pics from as long as they have no liability.
Unless the contract assigns the copyright to Zillow then it doesn't matter what it says. A contract can't generally be enforced as against third parties. And if Zillow can't sue then it is unethical* to threaten to sue.
However, to be fair to the lawyer, the copyright claim is secondary. The primary claim in the C&D is a violation of the terms of service.
*In the legal sense, not in the moral sense. Though maybe that too.
However, to be fair to the lawyer, the copyright claim is secondary. The primary claim in the C&D is a violation of the terms of service.
*In the legal sense, not in the moral sense. Though maybe that too.
> Zillow likely has a clause in their contracts with MLS/wherever else they get these pictures, that they cant allow the pics to be used for any other purpose other than for posting on Zillow. They are trying to enforce this since they have apparently gotten dinged by suppliers in the past.
You seem to be just guessing about what might be in the contract, but I'll run with it. Unless there's some affirmative duty to police in the contract, why couldn't they just ignore McMansion Hell? Ignoring is not the same as giving license.
You seem to be just guessing about what might be in the contract, but I'll run with it. Unless there's some affirmative duty to police in the contract, why couldn't they just ignore McMansion Hell? Ignoring is not the same as giving license.
Of course I'm guessing, I don't work at Zillow and I've never seen the contract. A similar guess was also made by The Verge - "I’m all but certain some brokerage or MLS provider saw Wagner’s blog, got mad that their photos were being used to make fun of the houses they were selling, and complained to Zillow. And Zillow’s lawyers probably thought sending a scary letter would solve the problem, because that’s what lawyers are paid to do."
Even if there's no affirmative duty to police, if you become aware of something that potentially makes you in breach in a contract, you're supposed to try to stop it. Otherwise if you get sued for breach it looks even worse for you - "they knew about it and were too lazy to do anything to stop it"
Even if there's no affirmative duty to police, if you become aware of something that potentially makes you in breach in a contract, you're supposed to try to stop it. Otherwise if you get sued for breach it looks even worse for you - "they knew about it and were too lazy to do anything to stop it"
If there's no affirmative duty, how could this possibly put them in breach?
Read about estoppel and laches. Ignoring can indeed be the same as giving permission.
When I read the first article I was torn as well; is it fair use? Maybe. Regardless of that, the most ridiculous thing is that Zillow doesn't own the copyright on these images either, so they have no standing to sue, and should just stop sticking their noses where they don't belong. Clearly they're just trying to silence someone who is critical of particular types of housing, which presumably they believe can have a negative effect on their bottom line.
> so they have no standing to sue
Is that true? If Zillow doesn't own the copyright, presumably they have some kind of license. Perhaps it has clauses like "we, Zillow, won't allow/abet/facilitate the use of these images on sites other than zillow.com, and/or for purposes other than advertising houses for sale".
Now, when you take these images and use them on another website for another purpose, who has standing to sue, and for what?
To put it another way, when you visit zillow.com, under what license are you downloading their images to render on your device? Surely under an implied contract you have with Zillow. Does the fact that they don't own the copyright prevent them from enforcing any limitations on your usage at all?
Is that true? If Zillow doesn't own the copyright, presumably they have some kind of license. Perhaps it has clauses like "we, Zillow, won't allow/abet/facilitate the use of these images on sites other than zillow.com, and/or for purposes other than advertising houses for sale".
Now, when you take these images and use them on another website for another purpose, who has standing to sue, and for what?
To put it another way, when you visit zillow.com, under what license are you downloading their images to render on your device? Surely under an implied contract you have with Zillow. Does the fact that they don't own the copyright prevent them from enforcing any limitations on your usage at all?
No, it's not true. From their Terms of Use:
"Except as expressly stated herein and without limitation, you agree that you will not, nor will you permit or encourage any third party to, reproduce, publicly display, or otherwise make accessible on or through any other Web site, application, or service any reviews, ratings, and/or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services."
So yes, McMansion Hell could be violating their terms of use.
"Except as expressly stated herein and without limitation, you agree that you will not, nor will you permit or encourage any third party to, reproduce, publicly display, or otherwise make accessible on or through any other Web site, application, or service any reviews, ratings, and/or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services."
So yes, McMansion Hell could be violating their terms of use.
What do terms of use have to do with anything?
Maybe, maybe not. Depends on the terms of Zillow's own license.
> Among the relevant questions here are: could the images have been shown at a lower resolution and still gotten the point across? Could only portions of the images have been shown and still gotten the point across?
You're missing one. Do the modifications to the images as presented on her blog count as a "transformative work?" In that light, I do think this is a bit more straight forward than you suggest.
You're missing one. Do the modifications to the images as presented on her blog count as a "transformative work?" In that light, I do think this is a bit more straight forward than you suggest.
No, but under Lenz Vs. Universal a take down under the DMCA must considered in a subjective fair use analysis before being issued. This sounds like it wasn't done. As for how much of something allowed to be reused the law states the minimal amount needed for the critique or parody, if this is the whole thing as is sometimes the case in an image then that is something for a judge to decide.
The letter sent to Kate was a C&D, not a DMCA takedown.
For me this is the main point. Personally I don't see a copyright issue here at all, and if there was I would expect a DMCA takedown request. Instead this appears to be a contract dispute with Zillow who claims that the person violated the terms of service.
What confuses the issue is that they additionally offered advice that the use violates copyright law, but they specifically do no claim standing in the matter -- "... Your actions infringe the rights of each copyright holder ..." They don't claim to be one. Additionally (IIUC, and I am not a lawyer) fair use is still infringing. It is not a defence, it is used for calculating damages. So, I think their advice is factually correct, if misleading.
Similarly they claim that "... Your activities may violate the federal Computer Fraud and Abuse act", which is mostly irrelevant. It's the state that decides this, and if they want to complain, they have to go to the police.
To sum up, my reading is that Zillow feels this violates the terms of service that the person agreed to. They sent a C&D as is required for that kind of contract dispute. They added a whole bunch of scary, but meaningless crap to make is sound threatening. Not fantastic, but arguing about the meaningless crap does not address the actual issue -- did the person violate contract terms that they had agreed to? If so, no amount of discussion about fair use is going to be relevant.
What confuses the issue is that they additionally offered advice that the use violates copyright law, but they specifically do no claim standing in the matter -- "... Your actions infringe the rights of each copyright holder ..." They don't claim to be one. Additionally (IIUC, and I am not a lawyer) fair use is still infringing. It is not a defence, it is used for calculating damages. So, I think their advice is factually correct, if misleading.
Similarly they claim that "... Your activities may violate the federal Computer Fraud and Abuse act", which is mostly irrelevant. It's the state that decides this, and if they want to complain, they have to go to the police.
To sum up, my reading is that Zillow feels this violates the terms of service that the person agreed to. They sent a C&D as is required for that kind of contract dispute. They added a whole bunch of scary, but meaningless crap to make is sound threatening. Not fantastic, but arguing about the meaningless crap does not address the actual issue -- did the person violate contract terms that they had agreed to? If so, no amount of discussion about fair use is going to be relevant.
Yes, I think the lawyer here is essentially admitting they don't have a copyright case directly. A C&D is basically just asking someone to stop doing something, so it makes sense that they would throw in every theory that sounds plausible. I don't blame them for this, it's not the C&D sender's job to be the recipient's lawyer.
Only the state can enforce the criminal parts of the CFAA, but there are civil parts as well.
Only the state can enforce the criminal parts of the CFAA, but there are civil parts as well.
Does that make sense though? Why would the lawyer send a C&D that's so broad if the specific issue was a violation of Terms of Service. That would be similar to an engineer or technician saying that the Internet is broken when in fact it is just a cable modem and/or router that is at fault.
I assume they think it's better to be thorough. A C&D isn't a lawsuit, it's a letter to persuade someone to change their behavior. It doesn't hurt to mention all the reasons you think they should stop even if some are a little dubious.
While you are generally correct, parody is a pretty strong part of the fair-use doctrine. Regardless, it appears that Zillow itself doesn't even own the copyright for many (possibly all?) the images, making this topic of fair-use moot to begin with.
Either way, I am not a lawyer and my understanding, ultimately, is limited.
Either way, I am not a lawyer and my understanding, ultimately, is limited.
additional to your points, i have to agree with you as well. I would be mortified if a blogger was using an image of my house for ridicule and condemnation in order to feed their paycheck.
Mortified enough to sell/demolish it and buy/build a smaller more tasteful one? [EDIT:] b^)
wow, I dont know what to say about your worldview on that one.
seriously get out of your keyboard rage and ask yourself if you or someone you cared about couldnt sell your/their house because a blogger was making money by degrading it. What if the place gets vandalized due to this activity?
hate is hate. there is no 'good' hate.
seriously get out of your keyboard rage and ask yourself if you or someone you cared about couldnt sell your/their house because a blogger was making money by degrading it. What if the place gets vandalized due to this activity?
hate is hate. there is no 'good' hate.
Rage? Hate? Not here dude. Just asking a question. It's really unhealthy for humans and society to be so wrapped up in the honor or respect (or whatever this is) of houses. These houses themselves are sort of bad for their inhabitants and communities. Only you can change you.
Besides, your hypothetical dangers have literally never happened.
Besides, your hypothetical dangers have literally never happened.
[deleted]
What if Godzilla were to read the blog and decide that house was a good landing place for his foot? So what.
> I just don't think we should all be so quick to say, "Oh, well it's OBVIOUSLY fair use."
You're absolutely right on that. ANY time a legal question rests on some multi-prong factor test, it's folly to say that there's an obvious answer. There can be strong arguments one way, but it's never a slam dunk.
Courts and juries are unpredictable.
You're absolutely right on that. ANY time a legal question rests on some multi-prong factor test, it's folly to say that there's an obvious answer. There can be strong arguments one way, but it's never a slam dunk.
Courts and juries are unpredictable.
I don't think anyone here is attempting to fathom what a court or jury might decide, that's inherently unknowable. We're discussing what should be decided.
Frankly I think this is a textbook case of Fair Use by a combination of parody and commentary, and it seems as though it would be trivial to take Zillow to task for attempting to enforce copyright law on property it doesn't own the rights to.
Frankly I think this is a textbook case of Fair Use by a combination of parody and commentary, and it seems as though it would be trivial to take Zillow to task for attempting to enforce copyright law on property it doesn't own the rights to.
From the article:
> She doesn't need to find other sources. Fair use means she can do what she's doing and Zillow should shut up, other than maybe offering an apology.
That sure sounds like an assertion of what a court or jury would actually decide, and it's far too strong. (I am a lawyer, and there's almost never a justification for being this absolute.)
As for Zillow not owning the rights, it's entirely possible that it has some licensing arrangement with the rights holders that empowers it to bring suit. I have no idea, and neither does the author.
> She doesn't need to find other sources. Fair use means she can do what she's doing and Zillow should shut up, other than maybe offering an apology.
That sure sounds like an assertion of what a court or jury would actually decide, and it's far too strong. (I am a lawyer, and there's almost never a justification for being this absolute.)
As for Zillow not owning the rights, it's entirely possible that it has some licensing arrangement with the rights holders that empowers it to bring suit. I have no idea, and neither does the author.
>That sure sounds like an assertion of what a court or jury would actually decide, and it's far too strong.
Right now, we're in the court of public opinion, and that is definitely appropriate language for that particular court... The court of law will come later, if ever.
And in this kind of business, most of damages are decided in the court of public opinion anyway, not the other one.
Right now, we're in the court of public opinion, and that is definitely appropriate language for that particular court... The court of law will come later, if ever.
And in this kind of business, most of damages are decided in the court of public opinion anyway, not the other one.
"Fair use means she can do what she's doing" sure sounds like legal advice to me.
> That sure sounds like an assertion of what a court or jury would actually decide, and it's far too strong. (I am a lawyer, and there's almost never a justification for being this absolute.)
It's obviously an opinion piece, the way it's written does not communicate that it's attempting to be informative other than collecting a number of other more informative articles, and offering the author's viewpoint. Contrary to what some on here believe, it is alright to both bring information forth about a topic and express an opinion on it, and personally I find that type of content much more engaging than exercising false equivalency nonsense and making a stupid company's stupid position look less stupid in the name of "fairness."
> As for Zillow not owning the rights
If it owns the rights or is licensed to exercise the rights, that doesn't change the fact that it has no case. That was my point.
It's obviously an opinion piece, the way it's written does not communicate that it's attempting to be informative other than collecting a number of other more informative articles, and offering the author's viewpoint. Contrary to what some on here believe, it is alright to both bring information forth about a topic and express an opinion on it, and personally I find that type of content much more engaging than exercising false equivalency nonsense and making a stupid company's stupid position look less stupid in the name of "fairness."
> As for Zillow not owning the rights
If it owns the rights or is licensed to exercise the rights, that doesn't change the fact that it has no case. That was my point.
Compare Mystery Science Theater 3000 with RiffTrax.
MST3K has to clear copyrights for the original films, even though they "mark up" those originals in the same way that McMH does. RiffTrax did not have to clear rights with anyone, at the cost of some customer convenience.
I don't know for certain whether MST3K licensed things because they had to, or because they didn't want to be sued to Hell by film catalog rights-holders. It certainly seems like ridicule, commentary, and parody to me. I don't think it matters all that much whether anyone makes money from it or not. A professor can fairly use photos for educational purposes in a class where all the students pay tuition, right?
As a potential juror, I am prejudicially biased that McMH's use is fair use. If I were a judge looking for a test, I think I would ask "Is it sufficiently transformative that this use does not compete with the original?" For MST3K, you're making motion picture entertainment from existing motion pictures. Watching the MST3K version of a work competes with watching the original. So MST3K is not fair use. But reading McMH does not compete with browsing those real estate listings. So it's probably fair use.
MST3K has to clear copyrights for the original films, even though they "mark up" those originals in the same way that McMH does. RiffTrax did not have to clear rights with anyone, at the cost of some customer convenience.
I don't know for certain whether MST3K licensed things because they had to, or because they didn't want to be sued to Hell by film catalog rights-holders. It certainly seems like ridicule, commentary, and parody to me. I don't think it matters all that much whether anyone makes money from it or not. A professor can fairly use photos for educational purposes in a class where all the students pay tuition, right?
As a potential juror, I am prejudicially biased that McMH's use is fair use. If I were a judge looking for a test, I think I would ask "Is it sufficiently transformative that this use does not compete with the original?" For MST3K, you're making motion picture entertainment from existing motion pictures. Watching the MST3K version of a work competes with watching the original. So MST3K is not fair use. But reading McMH does not compete with browsing those real estate listings. So it's probably fair use.
>But reading McMH does not compete with browsing those real estate listings. So it's probably fair use.
No facet of the fair use defense is based on the fact that one is exploiting a market for the work that the rightsholder currently isn't. On the contrary, the fact that one is exploiting any market at all with the work is a strike against any fair use defense.
No facet of the fair use defense is based on the fact that one is exploiting a market for the work that the rightsholder currently isn't. On the contrary, the fact that one is exploiting any market at all with the work is a strike against any fair use defense.
That's my personal test. It has nothing to do with established law. She is writing a blog; original rights-holder is trying to sell a house. There is no particular reason why either one should "win", as they are not in competition.
Attempting to argue that to a judge that does not employ the same boundary test is therefore likely to fail.
I get these types of responses all the time, whenever someone detects that I am crossing onto foreign turf. The law does not belong exclusively to legislators, judges, and lawyers. I am entitled to have an opinion that conflicts with established precedents. And as many of us are painfully aware, the law is sometimes an ass.
Attempting to argue that to a judge that does not employ the same boundary test is therefore likely to fail.
I get these types of responses all the time, whenever someone detects that I am crossing onto foreign turf. The law does not belong exclusively to legislators, judges, and lawyers. I am entitled to have an opinion that conflicts with established precedents. And as many of us are painfully aware, the law is sometimes an ass.
But the entire point of copyright is to prevent less-ethical businesspeople from exploiting the intellectual works of others for their financial benefit, i.e. the rights holders earnings are injured and they are legally allowed to seek compensation for that injury.
This person is co-opting the images, but not to sell the homes or defame the work of the photographer, but to mock the (ugly) style of the homes. There is no impact to the rights holders or even the people using the photos by virtue of this silly little blog existing.
This person is co-opting the images, but not to sell the homes or defame the work of the photographer, but to mock the (ugly) style of the homes. There is no impact to the rights holders or even the people using the photos by virtue of this silly little blog existing.
You can't just file on behalf of someone else; copyright doesn't work that way. If you own copyright, you can sue. If you don't, you can't. If Zillow doesn't own the images, this is one and done -- she wins.
This happened to me and I sent the lawyer a cease and desist letter.
He wanted me to take down my experiences I had with the company on my linkedin. After explaining to him that I have proof that I've worked on those projects the lawyers came up with bs reasons. I got angry for wasting some time of my life for proof of my work experiences so I sent him a cease and desist.
The loser sent one last email and I told him to get the fuck out of my life. And that was that.
I ain't ever using Zillow or Trulia.
These people are in alt-fact reality.
He wanted me to take down my experiences I had with the company on my linkedin. After explaining to him that I have proof that I've worked on those projects the lawyers came up with bs reasons. I got angry for wasting some time of my life for proof of my work experiences so I sent him a cease and desist.
The loser sent one last email and I told him to get the fuck out of my life. And that was that.
I ain't ever using Zillow or Trulia.
These people are in alt-fact reality.
Fantastic! Knowing a little bit about the law can really help you out in modern life (one could say unfortunately).
That story would've been much sadder had the lawyer's client decided it was worth the money to pursue him. A lawsuit against a well-monied opponent is no joke, whether you're on the right side or not. AFAIK unlike a copyright case, it is pretty hard to lose a defamation case as long as you haven't gone too crazy, but a lawsuit can seriously damage your life whether you win or not.
Knowing a little bit about the law is indeed helpful, but it doesn't seem that a little bit of legal knowledge would lead one to congratulating the grandparent on sending an inflammatory mail to opposing counsel.
C&Ds are in fact frequently bluffs, so that should be considered in the response, but some companies are notoriously well-known non-bluffers; if they send a C&D, they are chomping at the bit to file the lawsuit for real. It's best to ask a real lawyer whenever you're staring down these types of possibilities.
Disclaimer: I'm not a lawyer.
Knowing a little bit about the law is indeed helpful, but it doesn't seem that a little bit of legal knowledge would lead one to congratulating the grandparent on sending an inflammatory mail to opposing counsel.
C&Ds are in fact frequently bluffs, so that should be considered in the response, but some companies are notoriously well-known non-bluffers; if they send a C&D, they are chomping at the bit to file the lawsuit for real. It's best to ask a real lawyer whenever you're staring down these types of possibilities.
Disclaimer: I'm not a lawyer.
Probably beats the alternative.
FYI, I'm do technology for the real estate industry, here's some back story.
In Real Estate there's a huge concern about "where is my data going" (meaning the listings, photos, etc). This is a big deal to the brokers and agents. I literally just watched an hour long webinar over lunch by Wolf Net about data syndication and every few minutes they were mentioning how they've earned and work to maintain the trust of the brokers and agents by being careful with the data.
Now, a significant number of agents and brokers HATE Zillow. There are entire sessions at the conferences about how to keep your listings off Zillow. The reasons are varied and I won't bore you with the details, largely it is because Zillow doesn't put the listing agent's details by the listing.
Zillow I imagine has to be very careful not to be seen by agents as releasing this information to other sources, or Zillow's lifeblood will cease to flow. They are teetering on the edge here and a perception by agents could cut off a lot of their data.
Zillow probably has to fight this fight. Even if they lose it. They are in a much better position if they say "Hey, we fought this and the courts said we had to", that is a defense against the agents and brokers. If they don't fight it, the sentiment in the RE community could quickly turn against Zillow and cause a lot of damage to their business. This is my speculation, I don't know the internal workings of Zillow.
In Real Estate there's a huge concern about "where is my data going" (meaning the listings, photos, etc). This is a big deal to the brokers and agents. I literally just watched an hour long webinar over lunch by Wolf Net about data syndication and every few minutes they were mentioning how they've earned and work to maintain the trust of the brokers and agents by being careful with the data.
Now, a significant number of agents and brokers HATE Zillow. There are entire sessions at the conferences about how to keep your listings off Zillow. The reasons are varied and I won't bore you with the details, largely it is because Zillow doesn't put the listing agent's details by the listing.
Zillow I imagine has to be very careful not to be seen by agents as releasing this information to other sources, or Zillow's lifeblood will cease to flow. They are teetering on the edge here and a perception by agents could cut off a lot of their data.
Zillow probably has to fight this fight. Even if they lose it. They are in a much better position if they say "Hey, we fought this and the courts said we had to", that is a defense against the agents and brokers. If they don't fight it, the sentiment in the RE community could quickly turn against Zillow and cause a lot of damage to their business. This is my speculation, I don't know the internal workings of Zillow.
Far as I can tell the whole real estate industry is built on information asymmetry. As such there is a whole lotta meat there. And the real estate industry isn't going down without a fight.
That is very true. There is a lot of money that is made because of that asymmetry, 5 digits per sale usually. There's a reason NAR (National Association of Realtors) has a nice big building right in DC. :-)
Every time I look at listings on Zillow (hey, a person can dream) I see a realtor's photo and contact details, is that not the listing agent?
If the text next to the agent says "Listing Agent" then yes. For listings where the agent chose to share the listing with Zillow, they will show up, maybe with a good picture, maybe not, along with a bunch of "premier agent" listings. These are agents that paid to be put on this property, like Google Adwords for Real Estate.
But some listings don't have the listing agent on Zillow. See my example below.
Take for example this:
https://www.zillow.com/homes/for_sale/13911266_zpid/globalre...
vs:
https://www.coloproperty.com/listing/details/1125163
Jesse is the listing agent, that second page is from the MLS and is definitely correct. The Zillow listing only lists a Premier Agent, and that is not the listing agent.
But some listings don't have the listing agent on Zillow. See my example below.
Take for example this:
https://www.zillow.com/homes/for_sale/13911266_zpid/globalre...
vs:
https://www.coloproperty.com/listing/details/1125163
Jesse is the listing agent, that second page is from the MLS and is definitely correct. The Zillow listing only lists a Premier Agent, and that is not the listing agent.
If the listing agent is on Zillow, they will usually be the first person in the list. And it will say "Listing Agent" next to their name. The rest of the list will be "Premier Agent", which really just means that they paid Zillow for the privilege of being in those lists.
What are the limits to what rights you can waive under the ToS of a website or app? If a website says you waive fair use, first amendment right, and your right to use your computer as you see fit for as long as you are using the website, who’s to stop them from kicking you off the website and suing you for breach of contract?
I’m kind of curious because I received a C&D from craigslist a few years ago (https://github.com/yonran/craigslist-shortcuts/blob/master/c...). Technically I was breaking the terms of service (after they revised the terms), so as I understood it, if I wanted to continue to use the website I had to comply with the terms, however onerous they were.
I’m kind of curious because I received a C&D from craigslist a few years ago (https://github.com/yonran/craigslist-shortcuts/blob/master/c...). Technically I was breaking the terms of service (after they revised the terms), so as I understood it, if I wanted to continue to use the website I had to comply with the terms, however onerous they were.
At best they could stop you from using their site. If they put terms in their ToS that are not legally enforceable, they'd never win a suit for breach of contract.
Slightly related, Facebook lost a case in Canada over a forum selection clause in their standard online contract (that any legal actions have to be brought against FB in California).
[1] http://www.michaelgeist.ca/2017/06/clicking-agree-may-no-lon...
[1] http://www.michaelgeist.ca/2017/06/clicking-agree-may-no-lon...
I would love to see someone knowledgeable answer this (IANAL) but my guess is that it would have about as much force as a book that has similar terms in the first few pages that you pick up at the library. IOW, none whatsoever as long as they are not harmed by, say, data transfer costs.
I find it interesting that they were okay with you adding a new commit to clear out everything, but you can easily get to the code by looking at the history. Do you think they just didn't know Github keeps a revision history?
I find it funny that big corporations routinely bully small players into submission through these bogus legal shenanigans, but when Peter Thiel bankrolled a private individual in a legitimate, bonafide court case against a big media corporation, many people had ethical issues with it.
How is an individual with limited resources (money and time) supposed to ever hold their ground against $BIG_CORP?
How is an individual with limited resources (money and time) supposed to ever hold their ground against $BIG_CORP?
"Big media corporation" is an exaggeration in that case. Peter Thiel's personal wealth is such that he could have bought out Gawker dozens of times over if it had been a publicly traded company. Gawker actually settled because THEY ("$BIG_CORP") lacked the resources to fight through the whole process, and decided to cut their losses.
Yeah but Hulk Hogan (who is admittedly rich but maybe not fuck-you rich) was the plaintiff. Not Thiel.
And you are only proving my point. In most cases, individuals are the ones forced to settle with corporations because they don't have the resources to fight corps.
The same would have happened with Hulk Hogan if he had not been bankrolled by Thiel.
So, if anything, it was Thiel's actions that tipped the balance in the direction of the individual, who, mind you, was entirely in the right in this particular case.
And you are only proving my point. In most cases, individuals are the ones forced to settle with corporations because they don't have the resources to fight corps.
The same would have happened with Hulk Hogan if he had not been bankrolled by Thiel.
So, if anything, it was Thiel's actions that tipped the balance in the direction of the individual, who, mind you, was entirely in the right in this particular case.
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It's almost as though we can take that particular example in context, rather than mindlessly calculating which side has more money and then crafting arguments against their case.
People object to bags of money winning court cases and to rich assholes turning their riches into an unfair share of power, via courts or otherwise. No contradiction here.
Bummer. Great site, in an ironically snobby kind of way. I'd tell them to use Open Listings pages but we get similar takedown requests from our data providers (regional MLS associations) regarding shittylistings.com. They can revoke membership (and listings) pretty much at will. So while there's no strict legal argument against it, they probably got a vague threat from an MLS and were spooked. On that note, I'd be really interested in how their data licensing agreements work because I had heard that they pull from aggregators and not directly from MLS RETS hookups.
1. Zillow should have to pay a fine for getting the law so wrong.
2. There needs to be proper legal protections for people against Big Co. doing this. Maybe a third party set up to look over the C & D's issued to bloggers. I don't know how this should or would work, but something needs to change.
2. There needs to be proper legal protections for people against Big Co. doing this. Maybe a third party set up to look over the C & D's issued to bloggers. I don't know how this should or would work, but something needs to change.
Can Zillow be held liable for lost revenues since Kate felt compelled to shut down the site?
This is likely why they have the, "please don't" shut down your site" line in the letter. A dodge to shift their original intent away from that kind of liability.
Was she making money off of it?
She's claimed the site was her livelihood:
https://twitter.com/mcmansionhell/status/879432256363925507
I would assume and hope that she was. I enjoyed the content and she deserved to be paid for it. But I don't know if she meant livelihood in the financial context or not, so I couldn't tell you definitively.
https://twitter.com/mcmansionhell/status/879432256363925507
I would assume and hope that she was. I enjoyed the content and she deserved to be paid for it. But I don't know if she meant livelihood in the financial context or not, so I couldn't tell you definitively.
yes, from patreon and selling merch
Regarding 2, the reason the tactic is effective is because it is trivial to write C&D letters, but non-trivial to determine if they have merit. So they are effectively used as a denial of service attack by big corps.
2. This is what the EFF currently exists for.
EFF only takes on a limited scope of cases though.
Can't protect any & everyone.
Can't protect any & everyone.
I can't attest to any legality of what McMansion Hell was doing. And I think she was well meaning in her goals--to keep people from buying and building oversized, poorly built houses--but there is still an underlying social class issue here. I was always hesitant to talk about McMansions with my friends, many of whom probably grew up in McMansions (and they already think I'm a snob).
Additionally, have you ever had a friend who came to you showing off a new purchase and you were tempted to tell them that there was an objectively better choice for them? If they don't take it personally and get offended (they probably will) then they'll at least feel really shitty and probably embarrassed. It's best to let them live in ignorant bliss.
Additionally, have you ever had a friend who came to you showing off a new purchase and you were tempted to tell them that there was an objectively better choice for them? If they don't take it personally and get offended (they probably will) then they'll at least feel really shitty and probably embarrassed. It's best to let them live in ignorant bliss.
McManison buyers are not socioeconomically disadvantaged.
There is plenty of architectural snobbery directed at the socioeconomically disadvantaged - "overlarge ticky-tacky" is a common enough phrase in Berkeley Planning Commission meetings with respect to apartment buildings - but criticizing $900k 3000sqft single family houses isn't that.
There is plenty of architectural snobbery directed at the socioeconomically disadvantaged - "overlarge ticky-tacky" is a common enough phrase in Berkeley Planning Commission meetings with respect to apartment buildings - but criticizing $900k 3000sqft single family houses isn't that.
> McManison buyers are not socioeconomically disadvantaged.
I never said they were, and that's not the point. Social class and economic class are not the same. Criticizing someone's tastes doesn't just become totally acceptable to that person if they're rich. You're still going to make them feel like crap for spending their life savings on an inferior product. And there are still going to superiority undertones to what you're saying, at least to their ear.
I never said they were, and that's not the point. Social class and economic class are not the same. Criticizing someone's tastes doesn't just become totally acceptable to that person if they're rich. You're still going to make them feel like crap for spending their life savings on an inferior product. And there are still going to superiority undertones to what you're saying, at least to their ear.
Sure, it would be malicious to mail people the McMansion hell posts on the houses they've just signed for, but that's not what she was doing.
I used to think snobbery was obnoxious, but now the constant stream of "there's no such thing as quality, but even if there is, we shouldn't acknowledge it or its absence" seems even more grating.
I used to think snobbery was obnoxious, but now the constant stream of "there's no such thing as quality, but even if there is, we shouldn't acknowledge it or its absence" seems even more grating.
> "there's no such thing as quality, but even if there is, we shouldn't acknowledge it or its absence"
Where do you live where this is the case?
Where do you live where this is the case?
Ok, so Zillow has no copyright claim to the images. The article follows that up by loudly and repeatedly reminding us that even if Zillow did have a copyright claim, that the use of the images falls under fair use.
However, is that really true? The article backs up most of its claims, except for the "fair use" one. The disclaimer on the McMansion Hell site claimed that they were used under fair use, but the author of the site is admittedly a bit unfamiliar with the law. I haven't seen an analysis of if it really is fair use from any of the coverage.
However, is that really true? The article backs up most of its claims, except for the "fair use" one. The disclaimer on the McMansion Hell site claimed that they were used under fair use, but the author of the site is admittedly a bit unfamiliar with the law. I haven't seen an analysis of if it really is fair use from any of the coverage.
Zillow claims "we have an obligation to protect the interest of the copyright holders". If that obligation is contractual, they are acting as the agent of the copyright holder and should have the right to take legal action on their behalf. In fact they might be compelled to take legal action, even if that action puts them in a poor light as it does in this case. This is where I think Techdirt is missing the picture.
In my brief time dealing with this kind of stuff, the usual best response is to simply say "See you in Delaware." And put the ball in their court to escalate to a full blown lawsuit.
Vote with your wallet. Donate to the EFF. Boycott companies like Zillow/Trulia who behave like this and use their position to harm the community.
Thanks to everyone here who supports this work. It really helps to be a member of EFF -- the fact that we're publicly supported by a wide range of concerned individuals makes a difference. Our membership is mentioned in every court submission we make.
As mentioned downthread, this week we're in the middle of our summer membership drive: https://supporters.eff.org/donate/summer-security-camp-r1 -- we have stickers, guides, and patches.
Also, if you, your family and friends or your organization are thinking about supporting EFF's work at a higher level, let's talk. I'm [email protected]; I work on EFF's international activities, but I'm also taking some time this year to work with people who are know our work, and are interested in increasing their support or spreading the word to their colleagues.
As mentioned downthread, this week we're in the middle of our summer membership drive: https://supporters.eff.org/donate/summer-security-camp-r1 -- we have stickers, guides, and patches.
Also, if you, your family and friends or your organization are thinking about supporting EFF's work at a higher level, let's talk. I'm [email protected]; I work on EFF's international activities, but I'm also taking some time this year to work with people who are know our work, and are interested in increasing their support or spreading the word to their colleagues.
EFF gets my smile.amazon donations, along with a standard membership. At least a couple times a year I see that choice affirmed in the news.
Just renewed my membership to the EFF yesterday. Through the 4th of July, they have discounted rates to become a member [0]. I encourage everyone to donate, looking through cases they've been involved in within the past year, the money is being used well.
[0]: https://www.eff.org/deeplinks/2017/06/be-prepared-summer-sec...
[0]: https://www.eff.org/deeplinks/2017/06/be-prepared-summer-sec...
Thanks for the reminder - I forgot to reup for christmas and seeing this got me back on the train.
Use Redfin instead of Zillow/Trulia whenever possible. Starve the beast. (Zillow makes its money off of income from realtors seeking leads, RedFin makes its money off of actual real estate transaction fees [discounted compared to traditional commissions])
EDIT: Just read the end of the post: "Meanwhile, another organization that does understand copyright and fair use much better than Zillow is EFF. And EFF is now representing McMansion Hell."
Zillow has brought a knife to a gun fight.
EDIT: Just read the end of the post: "Meanwhile, another organization that does understand copyright and fair use much better than Zillow is EFF. And EFF is now representing McMansion Hell."
Zillow has brought a knife to a gun fight.
My wife and I bought our house using a Redfin agent. They were as hands-on or -off as we liked. We could look at listings online and schedule tours and we could ask the agent for any recommendations that might fit what we're looking for, but maybe not where we were originally looking. They also helped with negotiating and closing (as you'd expect of any Realtor, but it was nice dealing with the same 2 people the whole time).
> Zillow has brought a knife to a gun fight.
:) I wonder if this will have any outcome for ToS, as that's was one of Zillow's complaints.
> Zillow has brought a knife to a gun fight.
:) I wonder if this will have any outcome for ToS, as that's was one of Zillow's complaints.
To add to this point, I contacted a realtor through Zillow, had two email exchanges with him where I asked specific questions about a property. Each time, my questions were ignored, and his responses can be summarized as "are you pre-approved?" In the second email, he politely redirected me to another realtor that it appeared he was managing and I never heard from them again.
Redfin is a far better map in the markets where it's available.
Agreed! Their valuation tool is better than Zillow as well.
This being one of my favorite examples of why not to trust Zestimate - https://www.inman.com/2016/05/18/zillow-ceo-spencer-rascoff-...
I think Zillow brought a knife to a state where concealed carry is the norm and they're finding out how many people have guns :)
Zillow brought a crayon drawing of a knife to a gun fight - childish threats with absolutely no chance of doing any actual damage.
> Zillow has brought a knife to a gun fight.
I've never understood that expression. Counterstrike taught me that knives are useful in a gun fight.
I've never understood that expression. Counterstrike taught me that knives are useful in a gun fight.
New grad moving to SF. Thanks for this (:
And yes, I am absolutely posting this with the intent that someone from Zillow sees this and knows that this is costing them a real customer.
And yes, I am absolutely posting this with the intent that someone from Zillow sees this and knows that this is costing them a real customer.
> Zillow has brought a knife to a gun fight.
Pillow to a gunfight, possibly?
Pillow to a gunfight, possibly?
Zillow was thoughtful, and brought their own coffin to a gunfight.
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still alive on google image search!
My reply would probably be something like this, after checking it with a copyright lawyer:
Dear whomever it may concern at Zillow group,
As you do not have rights to the images are you authorised on behalf of the rights owners to issue DMCA take-down requests under title 17 of the United States Code under penalty of perjury?
Should this be the case I suggest you read Lenz v. Universal Music Corp., 801 F.3d 1126 (2015) in the 9th circuit which has just been refused certioari in the US Supreme Court (2017-06-19).
If you wish to continue this matter please submit a properly worded DMCA take down request.
Regards, ....
P.S. If you do continue this matter you obviously didn't read Lenz Vs. Universal and therefore I'll see you in court.
Dear whomever it may concern at Zillow group,
As you do not have rights to the images are you authorised on behalf of the rights owners to issue DMCA take-down requests under title 17 of the United States Code under penalty of perjury?
Should this be the case I suggest you read Lenz v. Universal Music Corp., 801 F.3d 1126 (2015) in the 9th circuit which has just been refused certioari in the US Supreme Court (2017-06-19).
If you wish to continue this matter please submit a properly worded DMCA take down request.
Regards, ....
P.S. If you do continue this matter you obviously didn't read Lenz Vs. Universal and therefore I'll see you in court.
Here's what I don't get: why didn't McM Hell go to an attorney right away? This seems like a no-brainer case of fair use that any competent attorney could tell you in a free consult or less than 2 hours of billable time.
And, yes, the threat letter from Zillow is total BS. But that doesn't mean Zillow "doesn't get it". That's just what attorneys do. I thought everyone knew this.
And, yes, the threat letter from Zillow is total BS. But that doesn't mean Zillow "doesn't get it". That's just what attorneys do. I thought everyone knew this.
"I thought everyone knew this" is a dangerous assumption. Not only are you assuming equal knowledge access but you're also assuming equal legal access. I'd argue the legal system is not equally accessible and knowledge of the system is even less accessible. I think the only safe assumption here is that Kate did _not_ know the proper way to respond to this and asked for help from the community. I would've done the same.
I mistakenly assumed McM Hell was something closer to a business or run by business person(s). As opposed to just a blog run by a single person.
My bad.
My bad.
Most people don't have the legal background to understand it, or the money to pay for a consult that might not be useful. McMansion Hell posted on twitter asking for help with the next step, because they didn't know what to do with such a threatening letter.
Look at this from their point of view, not yours. Most people have this understanding that lawyers are expensive and Zillow is a big company, it is natural and reasonable to expect that fighting or resisting Zillow is going to be expensive and it is better to shut down first and find out what to do next.
You're also making a huge assumption that even if the lawyers agree it is BS, Zillow would not pursue this matter further, causing them to retain a lawyer that will require money.
You're also making a huge assumption that even if the lawyers agree it is BS, Zillow would not pursue this matter further, causing them to retain a lawyer that will require money.
>why didn't McM Hell go to an attorney right away?
Seems the current strategy is working out quite nicely, no? Instead of a back and forth on a copyright issue that Zillow expected, they must now come to the defense of its brand.
Probably not something they expected.
Seems the current strategy is working out quite nicely, no? Instead of a back and forth on a copyright issue that Zillow expected, they must now come to the defense of its brand.
Probably not something they expected.
> the threat letter from Zillow is total BS. But that doesn't mean Zillow "doesn't get it
I'd argue that sending a BS letter is literally not getting it.
> That's just what attorneys do. I thought everyone knew this.
Attorneys waste everyone's time by making demands without any legal basis?
I'd argue that sending a BS letter is literally not getting it.
> That's just what attorneys do. I thought everyone knew this.
Attorneys waste everyone's time by making demands without any legal basis?
Attorneys waste everyone's time by making demands without any legal basis?
...yes, often?
...yes, often?
I'm sure she did. Multiple attorneys reached out to her in the original twitter thread.
Say you get sued. Even if the suit is totally bogus, you've got to spend your time and money fighting it. You have to at least stop and think about whether that is worth it.
The consultation would likely be free, but if she wanted them to do anything it would be a few thousand to retain them. Maybe that's a good chunk of change for her?
The letter was written to freak her out - threatening with CFAA etc. - and it accomplished that well.
I come from a journalism background, where we had to wrestle with fair use restrictions quite often, and it turns out that fair-use claims when it comes to images are not as cut-and-dry as with, say, text.
I'm allowed to reprint a sentence from a book in a review about that book and claim fair use, but I'm not allowed to reprint the entire book, even if I'm reviewing it, and claim fair use. But with images, those who claim fair use are typically reprinting the entire work. That tends to be a problem, because one of the four prongs of the fair-use test is the amount of the original work used. Among the relevant questions here are: could the images have been shown at a lower resolution and still gotten the point across? Could only portions of the images have been shown and still gotten the point across?
Then there's the fact that she claimed in her official response that "this blog is my livelihood," which suggests that she's receiving income and is, essentially, operating as the sole proprietor of a business. Another one of the prongs of the fair-use test is the nature and purpose of the work, and you're more likely to prevail on this point if you're a nonprofit or can't be construed as a commercial operation.
I'm not saying that Zillow's threats have merits. I just don't think we should all be so quick to say, "Oh, well it's OBVIOUSLY fair use."