4 ms·

IANAL but we can do some harmless armchair lawyering... The 4 Factors of "fair use"[1]: >1. the purpose and character of your use. Criticism, critique. >2.

by jasode 9y ago

IANAL but we can do some harmless armchair lawyering... The 4 Factors of "fair use"[1]: >1. the purpose and character of your use. Criticism, critique. >2. the nature of the copyrighted work. Published photos used in website blog without ads. Also, the photos were not put into a compilation book to be sold at Amazon. However, Kate Wagner does say in twitter that "this blog is my entire livelihood" so it seems that some commercial activity is happening. >3. the amount and substantiality of the portion taken Kate Wagner took a tiny percentage in proportion to Zillow's entire photo database. If the proportion measurement is a particular photographer's portfolio, she may have taken most or 100%. >4. the effect of the use upon the potential market. Does KW's usage of the photos cause economic harm to the photographers of real estate? Do the McHell photos reduce the value of photographers' other photos in their portfolio? Doesn't seem so but there may be some additional cause & effect that damages photographers' works. Seems like (3) and (4) would be Zillow's strongest arguments. [1] https://www.google.com/search?q=4+factors+of+fair+use https://www.google.com/search?q=4+factors+of+fair+use

DanBC 9y ago
They're claiming ToS violation.
- donatj 9y ago
  Which seems fishy to me… IANAL but without signing or hitting "I accept" to the terms, I haven't accepted the terms… I assume anyway. I could be wrong.
  - cookiecaper 9y ago
    IANAL either but I've researched this issue some. Still, nothing I say should be construed as reliable legal information. Automatic acceptance of ToS is described as "clickwrap" or "browsewrap", depending on whether the ToS is expected to be accepted by going to any page deeper than the home page (browsewrap) or whether it's accepted by, say, clicking a button. This is determined by the text on the site. For example, clickwrap would say "By clicking 'Search', you accept our terms of use." Browsewrap would be some text that reads "By using this site, you accept our terms of use." At present, it's mostly case-by-case, and it generally hinges on whether or not the consumer had sufficient notice that taking an action resulted in acceptance of the contract. If that claim were to go to court, the argument would be about the location of the notice and whether or not a reasonable person would've realized they were agreeing to the terms (assuming that the accused's knowledge of the terms cannot be directly established, e.g., the author states that she was not aware she was bound by the Terms of Use). People have a bad habit of assuming that technology law is somewhat reasonable. That's not the case. Because technology is foreign and magical to most people, and also because technology is very fast-paced and law is very slow-paced, and thirdly because most people don't have to be aware of these legal technicalities and can violate them without ever running into trouble or even realizing they've broken the law, ensuring that these things remain obscure political issues, tech law is in a pretty sorry state.
- jasode 9y ago
  I looked at the Four Factors Fair Use instead of Terms of Service because the twitter image of the Zillow cease & desist letter[1] mentioned it in their arguments. Also, one can use Zillow without ever clicking "I Agree" to a ToS so I'm not sure if that's even contractually binding or has been tested in court. [1] https://twitter.com/mcmansionhell/status/879429709251137537 https://twitter.com/mcmansionhell/status/879429709251137537
  - twblalock 9y ago
    It is also possible that the courts would rule that Zillow's particular terms of service are unenforceable, without answering the broader question about the enforceability of terms of service in general. That happened to Zappos in 2013.
  - pbhjpbhj 9y ago
    As an interesting [to me] aside you can probably get all the images and content without even visiting the site - Google Images and page caches for example. Wonder what that would do for arguments based on agreeing to ToS on the site.
- CodeWriter23 9y ago
  > They're claiming ToS violation. They did say that. But the true nature of their actions are intimidating an under-funded adversary who actually does have fair use rights to criticize their work. Think of the slippery slope- TOS of car, can't complain about defects, TOS of prescription drug, can't say grandpa died while using it as noted in the side effects of the drug. And that's why the courts have shot down these "TOS trumps the First Amendment" cases every time.

by jasode 9y ago

DanBC 9y ago

They're claiming ToS violation.

donatj 9y ago
Which seems fishy to me… IANAL but without signing or hitting "I accept" to the terms, I haven't accepted the terms… I assume anyway. I could be wrong.
- cookiecaper 9y ago
  IANAL either but I've researched this issue some. Still, nothing I say should be construed as reliable legal information. Automatic acceptance of ToS is described as "clickwrap" or "browsewrap", depending on whether the ToS is expected to be accepted by going to any page deeper than the home page (browsewrap) or whether it's accepted by, say, clicking a button. This is determined by the text on the site. For example, clickwrap would say "By clicking 'Search', you accept our terms of use." Browsewrap would be some text that reads "By using this site, you accept our terms of use." At present, it's mostly case-by-case, and it generally hinges on whether or not the consumer had sufficient notice that taking an action resulted in acceptance of the contract. If that claim were to go to court, the argument would be about the location of the notice and whether or not a reasonable person would've realized they were agreeing to the terms (assuming that the accused's knowledge of the terms cannot be directly established, e.g., the author states that she was not aware she was bound by the Terms of Use). People have a bad habit of assuming that technology law is somewhat reasonable. That's not the case. Because technology is foreign and magical to most people, and also because technology is very fast-paced and law is very slow-paced, and thirdly because most people don't have to be aware of these legal technicalities and can violate them without ever running into trouble or even realizing they've broken the law, ensuring that these things remain obscure political issues, tech law is in a pretty sorry state.
jasode 9y ago
I looked at the Four Factors Fair Use instead of Terms of Service because the twitter image of the Zillow cease & desist letter[1] mentioned it in their arguments. Also, one can use Zillow without ever clicking "I Agree" to a ToS so I'm not sure if that's even contractually binding or has been tested in court. [1] https://twitter.com/mcmansionhell/status/879429709251137537 https://twitter.com/mcmansionhell/status/879429709251137537
- twblalock 9y ago
  It is also possible that the courts would rule that Zillow's particular terms of service are unenforceable, without answering the broader question about the enforceability of terms of service in general. That happened to Zappos in 2013.
- pbhjpbhj 9y ago
  As an interesting [to me] aside you can probably get all the images and content without even visiting the site - Google Images and page caches for example. Wonder what that would do for arguments based on agreeing to ToS on the site.
CodeWriter23 9y ago
> They're claiming ToS violation. They did say that. But the true nature of their actions are intimidating an under-funded adversary who actually does have fair use rights to criticize their work. Think of the slippery slope- TOS of car, can't complain about defects, TOS of prescription drug, can't say grandpa died while using it as noted in the side effects of the drug. And that's why the courts have shot down these "TOS trumps the First Amendment" cases every time.