10 ms·

Zillow's second letter about McMansion Hell is still wrong

256 points by DiabloD3 9y ago

digitalzombie 9y ago
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.
- webkike 9y ago
  Fantastic! Knowing a little bit about the law can really help you out in modern life (one could say unfortunately).
  - emodendroket 9y ago
    Probably beats the alternative.
  - cookiecaper 9y ago
    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.
atom_enger 9y ago
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.
- toomuchtodo 9y ago
  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.
  - sharkweek 9y ago
    Redfin is a far better map in the markets where it's available.
    - toomuchtodo 9y ago
      Agreed! Their valuation tool is better than Zillow as well.
      - sharkweek 9y ago
        This being one of my favorite examples of why not to trust Zestimate - https://www.inman.com/2016/05/18/zillow-ceo-spencer-rascoff-sold-home-for-much-less-than-zestimate/ https://www.inman.com/2016/05/18/zillow-ceo-spencer-rascoff-...
  - neotek 9y ago
    Zillow brought a crayon drawing of a knife to a gun fight - childish threats with absolutely no chance of doing any actual damage.
  - atom_enger 9y ago
JustSomeNobody 9y ago
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.
- atom_enger 9y ago
  Can Zillow be held liable for lost revenues since Kate felt compelled to shut down the site?
  - toufka 9y ago
    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.
  - emodendroket 9y ago
    Was she making money off of it?
    - atom_enger 9y ago
      She's claimed the site was her livelihood: https://twitter.com/mcmansionhell/status/879432256363925507 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.
    - jeremy7600 9y ago
      yes, from patreon and selling merch
- pdelbarba 9y ago
  2. This is what the EFF currently exists for.
callmeed 9y ago
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.
- JustSomeNobody 9y ago
  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?
- Scaevolus 9y ago
  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.
- supercanuck 9y ago
  >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.
  - callmeed 9y ago
    Yes, but that's more of a fortunate side-effect.
    - supercanuck 9y ago
      it won't be the next time.
- xadhominemx 9y ago
  I'm sure she did. Multiple attorneys reached out to her in the original twitter thread.
jonbarker 9y ago
still alive on google image search!
yonran 9y ago
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/cease-and-desist.md 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 9y ago
  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.
  - slantyyz 9y ago
    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-longer-mean-agree-everything/ http://www.michaelgeist.ca/2017/06/clicking-agree-may-no-lon...
- clavalle 9y ago
  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_cant_speel 9y ago
  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?
kinkrtyavimoodh 9y ago
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 $BIG_CORP?
- cavanasm 9y ago
  "Big media corporation" is an exaggeration in that case. Peter Thiel's personal wealth is such that he could have bought out Gawker dozens of times over if it had been a publicly traded company. Gawker actually settled because THEY ("$BIG_CORP") lacked the resources to fight through the whole process, and decided to cut their losses.
  - kinkrtyavimoodh 9y ago
    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.
  - deleted 9y ago
    [deleted]
- praptak 9y ago
  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.
- deciplex 9y ago
  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.
LukeShu 9y ago
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.
- mark-r 9y ago
  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.
  - criddell 9y ago
    If that were the case, then why didn't Zillow just say that?
    - mark-r 9y ago
      Saying "but the lawyers made me do it" doesn't get you a lot of sympathy.
jawns 9y ago
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."
- kelnos 9y ago
  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.
  - waqf 9y ago
    > 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?
rgbrgb 9y ago
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.
ewanm89 9y ago
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.
baron816 9y ago
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.
- closeparen 9y ago
  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.
  - baron816 9y ago
    > 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.
    - closeparen 9y ago
      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.
linsomniac 9y ago
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.
- Gibbon1 9y ago
  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.
  - linsomniac 9y ago
    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. :-)
- urethrafranklin 9y ago
  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?
huffmsa 9y ago
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.

256 points by DiabloD3 9y ago

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.

webkike 9y ago
Fantastic! Knowing a little bit about the law can really help you out in modern life (one could say unfortunately).
- emodendroket 9y ago
  Probably beats the alternative.
- cookiecaper 9y ago
  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.

atom_enger 9y ago

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.

toomuchtodo 9y ago
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.
- sharkweek 9y ago
  Redfin is a far better map in the markets where it's available.
  - toomuchtodo 9y ago
    Agreed! Their valuation tool is better than Zillow as well.
    - sharkweek 9y ago
      This being one of my favorite examples of why not to trust Zestimate - https://www.inman.com/2016/05/18/zillow-ceo-spencer-rascoff-sold-home-for-much-less-than-zestimate/ https://www.inman.com/2016/05/18/zillow-ceo-spencer-rascoff-...
- neotek 9y ago
  Zillow brought a crayon drawing of a knife to a gun fight - childish threats with absolutely no chance of doing any actual damage.
- atom_enger 9y ago

JustSomeNobody 9y ago

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.

atom_enger 9y ago
Can Zillow be held liable for lost revenues since Kate felt compelled to shut down the site?
- toufka 9y ago
  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.
- emodendroket 9y ago
  Was she making money off of it?
  - atom_enger 9y ago
    She's claimed the site was her livelihood: https://twitter.com/mcmansionhell/status/879432256363925507 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.
  - jeremy7600 9y ago
    yes, from patreon and selling merch
pdelbarba 9y ago
2. This is what the EFF currently exists for.

callmeed 9y ago

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.

JustSomeNobody 9y ago
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?
Scaevolus 9y ago
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.
supercanuck 9y ago
>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.
- callmeed 9y ago
  Yes, but that's more of a fortunate side-effect.
  - supercanuck 9y ago
    it won't be the next time.
xadhominemx 9y ago
I'm sure she did. Multiple attorneys reached out to her in the original twitter thread.

jonbarker 9y ago

still alive on google image search!

yonran 9y ago

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/cease-and-desist.md 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 9y ago
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.
- slantyyz 9y ago
  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-longer-mean-agree-everything/ http://www.michaelgeist.ca/2017/06/clicking-agree-may-no-lon...
clavalle 9y ago
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_cant_speel 9y ago
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?

kinkrtyavimoodh 9y ago

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?

cavanasm 9y ago
"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.
- kinkrtyavimoodh 9y ago
  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.
- deleted 9y ago
  [deleted]
praptak 9y ago
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.
deciplex 9y ago
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.

LukeShu 9y ago

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.

mark-r 9y ago
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.
- criddell 9y ago
  If that were the case, then why didn't Zillow just say that?
  - mark-r 9y ago
    Saying "but the lawyers made me do it" doesn't get you a lot of sympathy.

jawns 9y ago

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."

kelnos 9y ago
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.
- waqf 9y ago
  > 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?

rgbrgb 9y ago

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.

ewanm89 9y ago

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.

baron816 9y ago

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.

closeparen 9y ago
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.
- baron816 9y ago
  > 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.
  - closeparen 9y ago
    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.

linsomniac 9y ago

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.

Gibbon1 9y ago
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.
- linsomniac 9y ago
  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. :-)
urethrafranklin 9y ago
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?

huffmsa 9y ago

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.