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EFF's Letter to Zillow on Behalf of McMansion Hell [pdf]
- harryh 9y agoSome previous discussion on this topic: 1) Zillow's 1st letter to Ms. Wagner: https://news.ycombinator.com/item?id=14639908 https://news.ycombinator.com/item?id=14639908 2) Commentary on the wrongness of Zillow's 2nd letter to Ms. Wagner: https://news.ycombinator.com/item?id=14656242 https://news.ycombinator.com/item?id=14656242
- ncallaway 9y agoThe EFF presents a fairly strong argument here. I don't think Zillow had much of a case before, but this certainly makes it clear that they will not be able to scare McMansion Hell into submission. Zillow, if they want to achieve an outcome they want, will have to press this in court where they will likely lose. Curious to see the response from Zillow here, though I've already created my Red Fin account and will likely not bother to go back to Zillow.
- lebrad 9y agoExcept they achieved the outcome that they stated they wanted. EFF says McMansion Hell won’t use photos from Zillow moving forward.
- dgacmu 9y agoShe doesn't have to change her old photos. She's just not going to use any more. Which -- well, I can imagine not wanting to have anything to do with Zillow in the future. Or to give them free advertising by referring to them for each photo caption. I quite like the idea that her future posts will say "Images from Redfin, a pretty awesome site that isn't threatening to sue me for using images for purposes of education, commentary, and parody." :) But seriously, she won the most important thing: Her entire existing body of work is going to remain available.
- lebrad 9y agoIn their original letter, Zillow's first demand was that Kate Wagner confirm that she has "stopped, and will not in the future, access or otherwise use the Zillow Site or Images," which she has now done. Even in the worst case scenario, the internet was going to keep Wagner's original celebrated body of work available. I dislike the idea that Zillow's legal goons can now guarantee Zillow's sellers that their photos won't be subject to mockery by McMansion Hell.
- dgacmu 9y agoZillow's initial demand letter included this: "(ii) delete all images, and derivatives thereof, in Your possession and on Your site" As Kate noted in her twitter feed, the decision to not use them in the future was hers: https://twitter.com/mcmansionhell/status/880517699725668352 https://twitter.com/mcmansionhell/status/880517699725668352 https://twitter.com/mcmansionhell/status/880517699725668352 https://twitter.com/mcmansionhell/status/880517699725668352 The Innertubes may have kept her originals around, but being forced to delete them would have destroyed the value to her of a year of pretty concerted work on it. That would have acted as a very strong deterrent to speech.
- drivingmenuts 9y agoSo, this is what it looks like when you stick your metaphorical head into a buzzsaw ...
- CptJamesCook 9y agoZillow has been threatening small startups for years. Most just go away quietly. It's good to see people fighting back on their behalf.
- db48x 9y agoThere is a difference between a business and social commentary/satire. (But that doesn't mean they're not bullies.)
- mmanfrin 9y agoThere is so little differentiating the real estate finding websites that something like this is enough for me to suggest to my home-searching friends to use a different service.
- huntermeyer 9y agoZillow Group owns Zillow, Trulia, HotPads, RealEstate.com, and others. What else is there?
- colinbartlett 9y agoThere's StreetEasy here in NYC... oh wait, that is ALSO owned by Zillow.
- drewrv 9y agoRedfin, whose UI I liked more than Zillows back when I was buying a house.
- drenvuk 9y agoThere's also openlistings. I don't like their search function as much as Zillow's but you can still find a decent selection in some markets.
- kevinrpope 9y agoThere's also realtor.com, which is the official site of the National Association of Realtors.
- colinbartlett 9y agoI just renewed my EFF membership and would encourage others to do so as well.
- carrier_lost 9y agoI had not heard the term "browsewrap" before this but that part is very interesting in and of itself.
- wyldfire 9y agoEFF is a public good, clearly we all benefit from them taking the time to draft this letter. This letter is merely between attorneys but has all of the work required for a legal brief including tons of citations of precedent. Thanks, EFF!
- Fezzik 9y agoeveryone should donate! as someone mentioned on a previous post, they are giving away some cool swag as part of their Summer Security Camp right now if you donate (including a sweatshirt, with a $25 recurring monthly donation). EFF really does an immense amount of great work. https://supporters.eff.org/donate/summer-security-camp-dd https://supporters.eff.org/donate/summer-security-camp-dd
- throwaway9109 9y agoEFF isn't as good. They criticize NSA and other alleged privacy violators while it turns a blind eye on the worst offenders: google and facebook. I would not donate to them.
- aeleos 9y agoBut we all let google and facebook take our data. However, what they criticize the NSA for is that they rarely follow the law and spy on people without them ever knowing
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- beardicus 9y agoWrong. EFF has gone after both Facebook and Google. Specifically, they filed an FTC complaint against Google claiming privacy violations, and they defended a client against a CFAA lawsuit from Facebook. This took 30 seconds to look up. I'm sure there's more examples, but I can't be arsed.
- rewrew 9y agoSo much in here is interesting (and right), but the best part I think comes at the end: Zillow doesn't own the images. So whether or not you there's a legal argument for fair use, Zillow has absolutely no right to file a copyright case in the first place because they don't own the images. As the EFF rightly points out, there is no "super copyright" that Zillow can exercise here. Really good stuff overall on fair use, but love that nice whopper at the end.
- pyre 9y agoThe "super copyright" comment has less to do with their ownership of the copyright, and more to do with the rest of the context about the owners not being able to exert copyright claims due to fair use. (This of course is predicated on the assertion that the usage does fall under fair use.) The "super copyright" comment is alluding to Zillow attempting to assert something that even the original owners cannot (i.e. a "superset" of copyright rights).
- naturalgradient 9y agoCurious question: Why does it say CC Christopher Poole at the bottom of the letter? As in, the founder of 4chan?
- francisofascii 9y agoI still don't understand what Zillow hoped to achieve by this. Zillow displays all types of housing, right? If anything, Kate's site gave Zillow free advertising.
- clavalle 9y agoSome of their clients, realtors, probably complained that their listings were being used as bad examples and were shown as coming from Zillow.
- deleted 9y ago[deleted]
- tanderson92 9y agoUpdate: Zillow won't pursue any legal action. > In a brief statement, Zillow said it will “not pursue any legal action.” > "We’ve had a lot of conversations about this, including with attorneys from the EFF, whose advocacy and work we respect. EFF has stated that McMansion Hell won’t use photos from Zillow moving forward. It was never our intent for McMansion Hell to shut down or for this to appear as an attack on Kate’s freedom of expression. We acted out of an abundance of caution to protect our partners—the agents and brokers who entrust us to display photos of their clients’ homes." https://arstechnica.com/tech-policy/2017/06/mcmansion-hell-is-back-wont-use-zillow-images-anymore-and-zillow-wont-sue/ https://arstechnica.com/tech-policy/2017/06/mcmansion-hell-i...
- djrogers 9y agoWait, so Zillow agreed to back down but McMansion Hell can't continue their (clearly legal) fair use of images fro Zillow's site? How is that a win for anyone but Zillow?
- tempestn 9y agoWhether they _could_ is an open question. They voluntarily agreed not to, presumably since there are other sources for those images, so it isn't worth picking a fight over. The real hardship would have been in removing and replacing all the old images.
- rickpmg 9y agoBut isn't the EFF supposed to pick the fights based on principals? By agreeing to this compromise they really just gave all the Zillow's of the world more confidence that strong-arm tactics work.
- harryh 9y agoIt's not the EFF's fight to pick, it's Kate Wagner's (the proprietor of the blog). It's pretty easy to imagine her not wanting to deal with a prolonged fight.
- thomasjudge 9y agoI <3 EFF
- ChuckMcM 9y agoMan I love a good smack down letter :-). This one is typical of the genre, in terms of content and well executed. I particularly like that they cite the Righthaven LLC case because a really good letter points out all the scumbags who have tried to do what you are trying to do and lets the reader know you think they are scumbags without actually having to call that out directly. I wonder if they would be interested in writing a letter to the "JustPrintIt 3D" people. (see video https://www.youtube.com/watch?v=NPnhkQZ9fzM https://www.youtube.com/watch?v=NPnhkQZ9fzM)
- fwefwwfe 9y agoeff.org Offline For Maintenance We're currently offline for server maintenance. Please check back soon. 2017-06-29
- seomint 9y agoI am grateful for the EFF and the work they do taking on Internet copyright bullies. Well done.
- vadym909 9y agoThanks EFF. Should I ever get a threatening letter from a Big Corp, I'm def going to use this letter as a template to respond and save myself some lawyer fees.
- ilamont 9y agoI thought this was particularly interesting: Third, Zillow cannot leverage its agreements with third parties to assert some kind of ‘super copyright’ that overrides fair use. The original copyright owners could not deny Wagner permission to make fair use of the photographs. See Lenz v. Universal Music Corp., 815 F.3d 1145, 1152 (9th Cir. 2016) (a fair use is not an infringement of copyright). Zillow, which does not even own the relevant copyrights, cannot then assert rights that the original copyright owners could not assert. If only more platforms, publishers, and creators took this concept to heart.
- samgranieri 9y agoThank you EFF!
- look_lookatme 9y agoDoes anyone know of any thoughtful writeups that make the case from Zillow's point of view?
- tonyarkles 9y agoWell, this isn't a particularly thoughtful take on it, but my uneducated guess would be "oh shit. Realtors posting pictures on Zillow are pissed that this blog exists and is mocking the houses they're listing. We gotta figure out how to shut that down."
- tcpabc123 9y agoIf I read things right, the pictures were being used were actually from MLS sites, and Zillow was using them on their site. A large goal of the site is to take the different closed off MLS listings and aggregate them on one site for people to find. But, working with the MLS sites is extremely hard to do and they require sometimes large fees and have very strict/weird requirements to use the data. The big thing with Zillow, is that a problem for them is having access to as many MLS listings as possible, since most of the realtors use the MLS to post homes. Without these, its basically just a price estimator and search engine for homes. Zillow already has a tenuous relationship with the MLS sites and most likely pursued the lawsuit to prove to the MLS sites they are serious about the use of their images, and likely were worried about this affecting their relationship with some of those listing agencies. Although only speculation, I see this as more likely than the lawyers just going after this to be a bully (but they still probably did the wrong thing either way).
- andybak 9y agoMLS?
- icebraining 9y agohttps://en.wikipedia.org/wiki/Multiple_listing_service https://en.wikipedia.org/wiki/Multiple_listing_service
- deleted 9y ago
- DamnInteresting 9y agoI was loving this letter until this part near the end. > In the interests of compromise, and because Wagner no longer wishes to use Zillow’s website, she will no longer source photographs from Zillow for her blog. What an unnecessary and obnoxious capitulation. Zillow pretty much got what they wanted by doing what they did. Poppycock.
- aisofteng 9y ago>CC (by email): Christopher Poole Very interesting - it does make sense that moot would have relationships with the EFF.
- Steeeve 9y ago> McMansion Hell educates the public about architectural concepts, urban planning, environmentalism, and history. That's simply not true. It's ludicrous. At the EFF level, this is a complete waste of time. There are more than a few instances of fair use out there that are defensible and are worthy of protection efforts. McMansion Hell provides a fraction of the public value that Perez Hilton does - and like most people I consider his site a black mark in societies history. I get that everybody deserves a level of protection, but everybody does not get it. Resources are thin. EFF should be focusing on more important pursuits.
- morganvachon 9y ago> EFF should be focusing on more important pursuits. Your opinion of that website has absolutely no bearing on whether EFF should focus on defending them. This is a clear First Amendment case with digital rights square in the middle. Zillow is attempting to exert copyright claims against a blogger when Zillow owns zero copyright on the photos in question. This case is exactly what EFF is all about, hell it's what their name means. Don't let your own biases block out common sense.
- Steeeve 9y agoThis is not a first amendment case at all. Freedom of expression has nothing to do with the privilege to use images posted on a website.
- icebraining 9y agoThe SCOTUS disagrees, We have repeatedly rejected First Amendment challenges to injunctions from copyright infringement on the ground that First Amendment concerns are protected by and coextensive with the fair use doctrine.
- Steeeve 9y agoThis is not a copyright issue. Copyright was peripherally mentioned in the C&D and not the basis of the C&D. Copyright does not belong to Zillow, as they mentioned themselves directly in the C&D.
- threepipeproblm 9y agoIts funny how giant douchebags who are trying to "mitigate their risks" never seem to perceive the risk of everyone realizing they are giant douchebags. For those who don't know the history of the EFF, it is detailed in Bruce Sterling's "The Hacker Crackdown" which is available here http://www.mit.edu/hacker/hacker.html http://www.mit.edu/hacker/hacker.html and on Amazon. The guy behind Lotus 1-2-3, Mitch Kapor, spent a sizable portion of his spreadsheet fortune setting it up. The events that Kapor and other founders were responding to make quite the riveting tale.
- qbrass 9y ago>Its funny how giant douchebags who are trying to "mitigate their risks" never seem to perceive the risk of everyone realizing they are giant douchebags. The market doesn't really care if you're a giant douchebag so it doesn't matter to them if everyone finds out.
- multi_tude 9y agoDouchebag-driven PR disasters aren't good for biz.
- threepipeproblm 9y agoI mean you obviously have a point, since Zillow exists despite doing what they do. On the other hand, my parents are buying and selling a house right now and I just encouraged my mom to switch to Redfin based on recommendations in this post. As long as there are people who care about this kind of thing it will have some impact.
- evan_ 9y agoThe crazy thing about this is that if Zillow had sent a nice email to the McMansion Hell author and buttered her up a little, maybe offered her some paid guest blogging opportunities- They probably could have convinced her to stop using Zillow-sourced photos for a tiny fraction of what they paid their lawyers (not to mention the damaged brand capitol). I could imagine a different version of this where they sponsored an artist/illustrator so she doesn't have to use photos of real houses if that's what they were worried about. It would have been a great fit for their brand, a weekly "what to look for in your next house, sponsored by Zillow" feature or something. Instead they just stuck their finger in their eye for no reason.
- accountyaccount 9y agoI'm sure some exec on zillow's marketing team thinks that someone making fun of some houses will hurt their business. Everyone working for this exec thought they were stupid for pursuing it, but they don't want to lose their jobs over it so they just roll their eyes and ignore it.
- misterbowfinger 9y agoTIL: there's a list of open source projects for the EFF that anyone can contribute to https://www.eff.org/about/opportunities/volunteer/coding-with-eff https://www.eff.org/about/opportunities/volunteer/coding-wit...
- twblalock 9y agoThis is the kind of argumentative writing I used to show my students when they wrote essays. It doesn't argue against a strawman, but instead demonstrates that even the most charitable interpretation of the opponent's argument won't stand up to scrutiny, even if some of the opponent's more contentious premises are assumed to be true. For example: Zillow's terms of use are unenforceable because they are browsewrap agreements, but even if Wagner had agreed to the terms of use, they would still be unenforceable because they contain unconscionable clauses in several different places. Zillow doesn't hold a copyright to the photos, but even if they did, Wagner would be protected by a fair use defense. I have no idea how a judge would rule in this case, but this is definitely good persuasive writing.
- icebraining 9y agoAs someone who listened to quite a lot of court cases (did you know that the Ninth Circuit has a YouTube channel?), it's quite common for judges to ask "if we rule that your argument X is invalid, do you lose?", giving the opportunity for lawyers to make that kind of alternative argument.
- deleted 9y ago[deleted]
- rootsudo 9y agoChristopher Poole? The 4chan guy?
- dagw 9y agoHe isn't the only Christopher Poole in the world.
- RickS 9y agoThis is a really beautiful legal document. It's concise, readable to someone not a legal professional, includes ample citations (and sometimes summaries of cited works), and is convincing using very simple, isolated, well structured arguments. If I ever need a lawyer, this is exactly the caliber of document I'd hope they put out.
- rdtsc 9y ago> “may violate” the Computer Fraud and Abuse Act (CFAA) Oh wow, just saw that. So Zillow is throwing everything at the wall including "she is hacking us". Well one good thing is it looks like McMansion Hell's Patreon account will get bumped up with a few more zeroes at the end. And Zillow just gave her free advertising and in the process managed to embarrass themselves. Doesn't anyone there do any kind of risk analysis? Even from their totally selfish corporate perspective, someone should have said "attacking a fairly popular blogger and accusing her of CFAA crimes and other crap is probably going to end up not benefiting us, and may hurt our reputation". It would seem like a no-brainer...
- ableton 9y agoThe CFAA is a really, really nasty law. According to some interpretations, you are breaking it any time you violate the tiny terms of use at the bottom of a website. So basically anybody could get convicted if the prosecution really wants to. Somebody got convicted for pretending to be a fictional person on myspace, but it was overturned (granted, the person was cyberbullying that resulted in a suicide, but still) https://en.wikipedia.org/wiki/Suicide_of_Megan_Meier https://en.wikipedia.org/wiki/Suicide_of_Megan_Meier
- abele2017 9y agoEFF has gone after both Facebook and Google. 192.168.0.1 https://19216801help.com/ https://19216801help.com/
- deleted 9y ago[deleted]
- erroneousfunk 9y agoGood points in the EFF letter that all web programmers (or programmers who use content from the web) should be aware of. The difference between "click wrap" and "browser wrap" ToS is extremely important, especially with web scraping.
- bootsz 9y agoSummary: https://ih1.redbubble.net/image.158316898.2338/flat,800x800,070,f.jpg https://ih1.redbubble.net/image.158316898.2338/flat,800x800,...
- OJFord 9y agoI accepted much better. The grammers and spellingses ate not goods.