7 ms·

Update: 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 a

• djrogers 9y ago
  Wait, 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 ago
    Whether 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 ago
      But 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 ago
        It'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.
        • wyldfire 9y ago
          Plus, the EFF has limited resources and litigation would be time consuming. As long as they can fight back against the big companies by writing a letter, they can litigate for clients who face other companies who won't back down so quickly.
      • brainfire 9y ago
        Perhaps it's less "fine, I won't use it anymore if you don't sue" and more "I've decided to stop advertising your service for free on my website regardless of the outcome of this," and Zillow deciding to use the opportunity to gently remove their corporate dick from this particular beehive.
        • bayonetz 9y ago
          Very colorful
        • droopyEyelids 9y ago
          Except Zillow sort of won. So they are the beehive and McMansion is the dick being removed.
      • Moto7451 9y ago
        By providing the muscle necessary to protect the rights of Kate Wagner, they have won.
        • thaumasiotes 9y ago
          Which rights of Kate Wagner did they protect? She could have achieved the same thing by losing in court.
          • harryh 9y ago
            She isn't removing old posts that contain photos sourced from Zillow. If she had lost in court she might have had to do that.
            • jessaustin 9y ago
              She would have definitely had to do that, and probably she would have had enough monetary damages levied to bankrupt her. It's not reasonable to fault EFF for pursuing her best interests.
              • thaumasiotes 9y ago
                > It's not reasonable to fault EFF for pursuing her best interests. That depends on whether you think the EFF's goal is more to protect the general well-being of Kate Wagner or to protect the idea that you can post pictures on the internet. It's not reasonable to fault Kate Wagner for pursuing her own best interests, but what do those have to do with the EFF?
                • icebraining 9y ago
                  The EFF is representing her. They are doing so because they have a more general goal, but they're still legally and ethically bound to respect her interests.
                  • 9y ago
    • HarryHirsch 9y ago
      So... no forward guidance about fair use. It's very disappointing, the EFF is supposed to be on the good side of the law, it doesn't to serve popular bloggers! Who wouldn't love to play fly on the wall during negotiations?
      • tempestn 9y ago
        Once a lawyer from the EFF takes her on as a client, even pro bono, it is absolutely their responsibility to serve her best interest.
      • icebraining 9y ago
        As the letter pointed out, the guidance is well established, there's no need to drag out an innocent into yet another fight.
        • HarryHirsch 9y ago
          They all tell you to be bold in claiming fair use, the Chicago Manual gave the same advice 20 years ago, yet McMansion Hell is still down. EFF says one thing, Zillow says the opposite. What guidance are we supposed to believe? Is it like Torvalds when someone asked him if he had been approached by the 3-letter agencies?
          • icebraining 9y ago
            The Zillows of this world will always threaten to sue and even actually sue regardless of the established precedents, because they don't need to win in court, they just need the other (weaker) side to lose money and time. There's nothing the EFF can do about that by pursuing this case. If you dislike this, push for a federal anti-SLAPP law.
    • accountyaccount 9y ago
      A zillow competitor should just swoop in and sponsor her.
      • fanpuns 9y ago
        Other users have made similar points that McMansion Hell was somehow advertising for Zillow by using their pictures, but why would you want to sponsor a blog whose express purpose is to make fun of or criticize listing on your site?
        • accountyaccount 9y ago
          Because they're your listings — not your service. If someone saw McMansion Hell they may be inspired to find shitty listings of their own on Zillow, and maybe they just happen to create an account and consider using it to find non-shitty listings when they're ready to buy a house.
  • burkaman 9y ago
    "moving forward" means future posts won't use Zillow images, but she doesn't have to take down any existing posts. Explanation: https://twitter.com/mcmansionhell/status/880538191094263808 https://twitter.com/mcmansionhell/status/880538191094263808
  • non_sequitur 9y ago
    Because Zillow is ultimately right here and her use of the images without Zillow's permission is against their terms of use (which contrary to the hand-wavy analysis in EFF's letter, is absolutely enforceable). However, Zillow doesnt have a lot of damages to recover from her use and definitely wants to avoid another big PR stink, so they get to back off gracefully, she agrees to stop saying she gets the pictures from Zillow (which is what they really wanted), and everything goes back to normal.
    • dr0verride 9y ago
      Just because Zillow has something in their terms of use that doesn't make it enforceable.
      • non_sequitur 9y ago
        The EFF letter cites a bunch of cases where an arbitration clause was unenforceable because of the way the terms of service were presented, which has nothing to do with the current situation (whether a restriction on using images from Zillow is enforceable). I know it's not fashionable to express support for a big bad corporate machine over the little guy/gal, but I'm trying to share some actual information instead of just gush.
        • 5ilv3r 9y ago
          You're contradicting statements made with sources cited without citing any of your own, or explaining how they would nullify the other points made on why this use is acceptable.
          • non_sequitur 9y ago
            When lawyers write letters, they will throw everything they can possibly think of and the kitchen sink, even if it's not relevant. Many of the cites in the letter are not relevant to this situation (I'm not going through every one, but just as an example): The letter says: "But Wagner is not bound by your Terms of Use and, even if she were, the relevant provisions are unenforceable. Courts routinely decline to enforce “browsewrap” agreements like Zillow’s Terms of Use, which fail to present terms except via a hyperlink and without a checkbox to signal assent. See, e.g., Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014); Meyer v. Kalanick, 199 F. Supp. 3d 752 (S.D. N.Y. 2016); Be In, Inc. v. Google Inc., No. 12-CV-03373-LHK, 2013 WL 5568706, at *9 (N.D. Cal. Oct. 9, 2013); Kwan v. Clearwire Corp., No. C09-1392JLR, 2012 WL 32380 (W.D. Wash. Jan. 3, 2012)." Nguyen v. Barnes & Noble Inc., - court declined to apply arbitration clause (https://en.wikipedia.org/wiki/Nguyen_v._Barnes_%26_Noble,_Inc. https://en.wikipedia.org/wiki/Nguyen_v._Barnes_%26_Noble,_In...) Meyer v. Kalanick, - court declined to apply arbitration clause (http://blog.ericgoldman.org/archives/2016/08/judge-declines-to-enforce-ubers-terms-of-service-meyer-v-kalanick.htm http://blog.ericgoldman.org/archives/2016/08/judge-declines-...) Kwan v. Clearwire Corp. - court declined to apply arbitration clause (http://blog.ericgoldman.org/archives/2012/02/kwan_v_clearwir.htm http://blog.ericgoldman.org/archives/2012/02/kwan_v_clearwir...) Don't have a link to the Google case, but I would be shocked if it werent the same issue. Do you see how the very first paragraph where they start citing has very little to do with the actual issue? Translation: "Hey Zillow, first of all your terms of service arent enforceable, see these 4 cases, all of which have to do with whether an arbitration clause could be applied and have nothing to do with the current situation." 2nd paragraph: "Even if an agreement were formed, paragraph 14 of the Terms of Use, asserting Zillow’s right to alter the contract without notice or justification, would render the agreement illusory and void for lack of consideration. See, e.g., Cheek v. United Healthcare of Mid-Atl., Inc., 378 Md. 139, 144, 835 A.2d 656, 659 (2003); Interchange Assocs. v. Interchange, Inc., 16 Wash. App. 359, 362, 557 P.2d 357, 359 (1976)." Again, nothing to do with the situation at hand Cheek v. United Healthcare of Mid-Atl., Inc. - arbitration clause in an employee handbook held unenforceable (http://www.whaylaw.com/employee-arbitration-agreement http://www.whaylaw.com/employee-arbitration-agreement) Interchange Assocs. v. Interchange, Inc. - an agreement where directors agreed to serve 10 years or until they resigned was an "illusory promise" and did not provide sufficient consideration for a contract (http://courts.mrsc.org/appellate/016wnapp/016wnapp0359.htm http://courts.mrsc.org/appellate/016wnapp/016wnapp0359.htm) Again, neither of these are really relevant to the situation. I'll stop here but I hope you get the gist of it. Here's what happened - some junior lawyer at EFF spend 4-5 researching all the cases they thought would be remotely relevant and threw them in there because hey it looks impressive, but if you spend some time digging into them the truth quickly becomes apparent. (I don't work for Zillow or EFF)
• deleted 9y ago
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• dmh2000 9y ago
  for those who object to the compromise, how much should mcmansion-hell and the EFF have been willing to spend to fight? It would be many thousands of $$$