7 ms·

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

by 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?
  - non_sequitur 9y ago
    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.
    - monochromatic 9y ago
      What do terms of use have to do with anything?
  - monochromatic 9y ago
    Maybe, maybe not. Depends on the terms of Zillow's own license.
ewanm89 9y ago
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.
- paulgb 9y ago
  The letter sent to Kate was a C&D, not a DMCA takedown.
  - mikekchar 9y ago
    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.
    - paulgb 9y ago
      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.
criddell 9y ago
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?
- non_sequitur 9y ago
  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.
  - monochromatic 9y ago
    > 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.
    - non_sequitur 9y ago
alpha_squared 9y ago
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.
autokad 9y ago
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.
- jessaustin 9y ago
  Mortified enough to sell/demolish it and buy/build a smaller more tasteful one? [EDIT:] b^)
  - autokad 9y ago
    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.
    - jessaustin 9y ago
      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.
    - deleted 9y ago
      [deleted]
    - plink 9y ago
      What if Godzilla were to read the blog and decide that house was a good landing place for his foot? So what.
monochromatic 9y ago
> 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.
- FussyZeus 9y ago
  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.
  - monochromatic 9y ago
    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.
    - FussyZeus 9y ago
      > 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.
akira2501 9y ago
> 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.

by jawns 9y ago

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?
- non_sequitur 9y ago
  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.
  - monochromatic 9y ago
    What do terms of use have to do with anything?
- monochromatic 9y ago
  Maybe, maybe not. Depends on the terms of Zillow's own license.

ewanm89 9y ago

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.

paulgb 9y ago
The letter sent to Kate was a C&D, not a DMCA takedown.
- mikekchar 9y ago
  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.
  - paulgb 9y ago
    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.

criddell 9y ago

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?

non_sequitur 9y ago
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.
- monochromatic 9y ago
  > 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.
  - non_sequitur 9y ago

alpha_squared 9y ago

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.

autokad 9y ago

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.

jessaustin 9y ago
Mortified enough to sell/demolish it and buy/build a smaller more tasteful one? [EDIT:] b^)
- autokad 9y ago
  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.
  - jessaustin 9y ago
    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.
  - deleted 9y ago
    [deleted]
  - plink 9y ago
    What if Godzilla were to read the blog and decide that house was a good landing place for his foot? So what.

monochromatic 9y ago

> 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.

FussyZeus 9y ago
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.
- monochromatic 9y ago
  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.
  - FussyZeus 9y ago
    > 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.

akira2501 9y ago

> 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.