I'm going to disagree with most of you (and most of the commentary I've seen) that McMansion Hell's assertions of fair use are easily defensible.
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."
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.
> 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.
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.
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.
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.
> 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.
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.
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.
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.
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.
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.
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 $BIG_CORP?
"Big media corporation" is an exaggeration in that case. Peter Thiel's personal wealth is such that he could have bought out Gawker dozens of times over if it had been a publicly traded company. Gawker actually settled because THEY ("$BIG_CORP") lacked the resources to fight through the whole process, and decided to cut their losses.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
"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.
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.
>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.
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?
[+] [-] jawns|8 years ago|reply
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."
[+] [-] criddell|8 years ago|reply
I'm having a hard time seeing what exactly Zillow hopes to achieve? Do they think it's working?
[+] [-] kelnos|8 years ago|reply
[+] [-] akira2501|8 years ago|reply
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.
[+] [-] ewanm89|8 years ago|reply
[+] [-] alpha_squared|8 years ago|reply
Either way, I am not a lawyer and my understanding, ultimately, is limited.
[+] [-] autokad|8 years ago|reply
[+] [-] monochromatic|8 years ago|reply
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.
[+] [-] digitalzombie|8 years ago|reply
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.
[+] [-] webkike|8 years ago|reply
[+] [-] linsomniac|8 years ago|reply
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.
[+] [-] Gibbon1|8 years ago|reply
[+] [-] urethrafranklin|8 years ago|reply
[+] [-] yonran|8 years ago|reply
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.
[+] [-] kelnos|8 years ago|reply
[+] [-] clavalle|8 years ago|reply
[+] [-] i_cant_speel|8 years ago|reply
[+] [-] kinkrtyavimoodh|8 years ago|reply
How is an individual with limited resources (money and time) supposed to ever hold their ground against $BIG_CORP?
[+] [-] cavanasm|8 years ago|reply
[+] [-] deciplex|8 years ago|reply
[+] [-] praptak|8 years ago|reply
[+] [-] rgbrgb|8 years ago|reply
[+] [-] JustSomeNobody|8 years ago|reply
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.
[+] [-] atom_enger|8 years ago|reply
[+] [-] enraged_camel|8 years ago|reply
[+] [-] pdelbarba|8 years ago|reply
[+] [-] baron816|8 years ago|reply
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.
[+] [-] closeparen|8 years ago|reply
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.
[+] [-] LukeShu|8 years ago|reply
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.
[+] [-] mark-r|8 years ago|reply
[+] [-] huffmsa|8 years ago|reply
[+] [-] atom_enger|8 years ago|reply
[+] [-] dannyobrien|8 years ago|reply
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.
[+] [-] Obi_Juan_Kenobi|8 years ago|reply
[+] [-] johnbrodie|8 years ago|reply
[0]: https://www.eff.org/deeplinks/2017/06/be-prepared-summer-sec...
[+] [-] toomuchtodo|8 years ago|reply
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.
[+] [-] jonbarker|8 years ago|reply
[+] [-] ewanm89|8 years ago|reply
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.
[+] [-] callmeed|8 years ago|reply
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.
[+] [-] atom_enger|8 years ago|reply
[+] [-] Scaevolus|8 years ago|reply
[+] [-] mikhailt|8 years ago|reply
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.
[+] [-] supercanuck|8 years ago|reply
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.
[+] [-] accountyaccount|8 years ago|reply
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?
[+] [-] xadhominemx|8 years ago|reply
[+] [-] emodendroket|8 years ago|reply
[+] [-] JustSomeNobody|8 years ago|reply
[+] [-] ceejayoz|8 years ago|reply