4 ms·

IANAL. We give large companies far too much lenience to bully in this country. The legal system is fundamentally broken in this type of matchup, a small playe

IANAL. We give large companies far too much lenience to bully in this country. The legal system is fundamentally broken in this type of matchup, a small player pitted against a public company with billions of dollars floating around. Her only hope to win the fight is to be picked up by a nonprofit like the EFF, but my experience is that they're very restrained about where they'll lend assistance (that is, they're useless to most people). Her only hope to get through the next five years without having her life substantially wrecked by a totally unnecessary lawsuit (which she will likely lose if it goes to court) is to comply with the C&D and hope that Zillow calls off the dogs. Her brief plea for help at the end of this post could be construed as an attempt to conspire to continue to harm Zillow while avoiding legal accountability for doing so, and Zillow's attorneys will no doubt seize upon that construction to make things as bad for her as possible. The thing to understand is that once lawyers are contacted, the time for friendly discussion or rational pleading is over. The lawyer is paid to get the court to believe that their client is being seriously harmed so that they are granted maximal damages. Conciliatory tones and forgone possibilities to highlight damage would only hurt Zillow in an eventual court case, so the lawyers must seize upon such communications aggressively. Their sole job is to make the case that Zillow is being victimized as credible as possible, which means making the defendant look as bad as possible. We seriously need to get the legal system under control. An individual is lucky if they can afford 10 hours of time from a competent attorney. Large companies intentionally prolong their cases to try and starve less-wealthy opponents out by exhausting their legal funds. I am familiar with small companies who were forced to settle, even after spending $3M on legal services. It takes up to a decade and millions of dollars to even have such a case seen through in the US. IANAL. Source: I've had a giant law firm sicked on me by a Fortune 100. I complied with their C&D (by shutting down my business) and they went away.

twblalock 9y ago
> Her only hope to get through the next five years without having her life substantially wrecked by a totally unnecessary lawsuit (which she will likely lose if it goes to court) is to comply with the C&D and hope that Zillow calls off the dogs. If she would likely lose in court, then Zillow has a legitimate case against her and is doing her a favor by sending a cease and desist instead of going straight to court and taking her money. I don't see why you would feel sorry for someone in that situation. I feel sorry for her, but that's because I don't think she would lose in court.
- cookiecaper 9y ago
  IANAL >If she would likely lose in court [...] I don't see why you would feel sorry for someone in that situation. A law's existence is not an automatic justification for its invocation. Copyright law is pretty draconian on its own, and automatically-accepted browsewrap/clickwrap Terms of Use generally constrict action even further, making almost anything a breach of contract. Fair use exists, but the standard is fairly high, and it is not really practical for a normal person to get it, especially since each use must be considered in isolation. Other types of intellectual property would probably also be involved here, including an accusation of "trademark dilution", i.e., harming their mark's value by using it improperly. I haven't seen the C&D but it probably includes various other claims along these lines, all of which she would have to defend, which means big $$$ even if she did win (and if attorney's fees are eventually awarded, they will cover only a tiny fraction of the overall costs). A large company with giant law firms seeking to punish individual authors for failure to unpublish unflattering blog posts should make you feel sorry, even if those giant law firms are able to contrive a case that shows the conduct was technically illegal. It's not hard to do, especially when there is such a massive resource differential. In the real world where we're allowed to widen our perspective beyond the legal minutia, this is a blatant attempt to silence press that Zillow doesn't like. The fact that it is possible for big companies to do this to people should seriously frighten everyone. >doing her a favor by sending a cease and desist instead of going straight to court A C&D is part of the process. It's not mandatory, but my non-lawyer understanding is that it looks bad to file a suit in this type of case without first asking the defendant to cease and desist (that is, issuing a formal C&D). Lawyers don't send a C&D to be nice. They do it because the court wants to see that the plaintiff a) sought non-legal remediation before filing a lawsuit and b) because plaintiffs have a responsibility to mitigate ongoing losses when they are able to do so. The job of the lawyers is to maximize outcomes in favor of their clients, and that means crossing the ts and dotting the is. Failing to send a C&D leaves an opening for the defendant to try to soften your damage claim, pointing out that you did not attempt to mitigate the damage. If Zillow actually had been damaged by this operation, they would continue the lawsuit after the would-be defendant ceased and desisted and try to recover the damages they suffered. Since this is just a tactic to pressure the other party into unpublishing their content via the legal strongarm, money won't be wasted on a lawsuit after the publisher has been bullied into submission. IANAL
logfromblammo 9y ago
I am also not a lawyer, but I am stubborn. What I would do in this situation is to write a response letter saying, "I do not believe your accusations have merit, therefore I will not comply with your demands. I am open to further negotiations, but I will not agree to withdraw any of my own work from publication." Then they would have to make a more reasonable demand, or actually file a lawsuit. In their complaint and summons, they would actually have to make a case, and request some form of relief that the judge could grant. And my answer to it would essentially be this: I deny all claims made by plaintiff. This would be followed by a request for discovery, for all computer access logs wherein Zillow believes that I bypassed their method of preventing those who have not agreed to their terms of service from accessing content via their website. Then I'd let the statutory clock run out on that and move for dismissal. There is a miniscule chance they could prove that she accessed their website at all, much less show that she violated ToS in doing so.

twblalock 9y ago

> Her only hope to get through the next five years without having her life substantially wrecked by a totally unnecessary lawsuit (which she will likely lose if it goes to court) is to comply with the C&D and hope that Zillow calls off the dogs. If she would likely lose in court, then Zillow has a legitimate case against her and is doing her a favor by sending a cease and desist instead of going straight to court and taking her money. I don't see why you would feel sorry for someone in that situation. I feel sorry for her, but that's because I don't think she would lose in court.

cookiecaper 9y ago
IANAL >If she would likely lose in court [...] I don't see why you would feel sorry for someone in that situation. A law's existence is not an automatic justification for its invocation. Copyright law is pretty draconian on its own, and automatically-accepted browsewrap/clickwrap Terms of Use generally constrict action even further, making almost anything a breach of contract. Fair use exists, but the standard is fairly high, and it is not really practical for a normal person to get it, especially since each use must be considered in isolation. Other types of intellectual property would probably also be involved here, including an accusation of "trademark dilution", i.e., harming their mark's value by using it improperly. I haven't seen the C&D but it probably includes various other claims along these lines, all of which she would have to defend, which means big $$$ even if she did win (and if attorney's fees are eventually awarded, they will cover only a tiny fraction of the overall costs). A large company with giant law firms seeking to punish individual authors for failure to unpublish unflattering blog posts should make you feel sorry, even if those giant law firms are able to contrive a case that shows the conduct was technically illegal. It's not hard to do, especially when there is such a massive resource differential. In the real world where we're allowed to widen our perspective beyond the legal minutia, this is a blatant attempt to silence press that Zillow doesn't like. The fact that it is possible for big companies to do this to people should seriously frighten everyone. >doing her a favor by sending a cease and desist instead of going straight to court A C&D is part of the process. It's not mandatory, but my non-lawyer understanding is that it looks bad to file a suit in this type of case without first asking the defendant to cease and desist (that is, issuing a formal C&D). Lawyers don't send a C&D to be nice. They do it because the court wants to see that the plaintiff a) sought non-legal remediation before filing a lawsuit and b) because plaintiffs have a responsibility to mitigate ongoing losses when they are able to do so. The job of the lawyers is to maximize outcomes in favor of their clients, and that means crossing the ts and dotting the is. Failing to send a C&D leaves an opening for the defendant to try to soften your damage claim, pointing out that you did not attempt to mitigate the damage. If Zillow actually had been damaged by this operation, they would continue the lawsuit after the would-be defendant ceased and desisted and try to recover the damages they suffered. Since this is just a tactic to pressure the other party into unpublishing their content via the legal strongarm, money won't be wasted on a lawsuit after the publisher has been bullied into submission. IANAL

logfromblammo 9y ago

I am also not a lawyer, but I am stubborn. What I would do in this situation is to write a response letter saying, "I do not believe your accusations have merit, therefore I will not comply with your demands. I am open to further negotiations, but I will not agree to withdraw any of my own work from publication." Then they would have to make a more reasonable demand, or actually file a lawsuit. In their complaint and summons, they would actually have to make a case, and request some form of relief that the judge could grant. And my answer to it would essentially be this: I deny all claims made by plaintiff. This would be followed by a request for discovery, for all computer access logs wherein Zillow believes that I bypassed their method of preventing those who have not agreed to their terms of service from accessing content via their website. Then I'd let the statutory clock run out on that and move for dismissal. There is a miniscule chance they could prove that she accessed their website at all, much less show that she violated ToS in doing so.