
Zillow's second letter about McMansion Hell is still wrong - DiabloD3
https://www.techdirt.com/articles/20170628/01531037682/zillow-still-doesnt-get-it-second-letter-about-mcmansion-hell-is-still-just-wrong.shtml
======
jawns
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."

~~~
monochromatic
> 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
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
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._

~~~
quickConclusion
>That sure sounds like an assertion of what a court or jury would actually
decide, and it's far too strong.

Right now, we're in the court of public opinion, and that is definitely
appropriate language for that particular court... The court of law will come
later, if ever.

And in this kind of business, most of damages are decided in the court of
public opinion anyway, not the other one.

~~~
monochromatic
"Fair use means she can do what she's doing" sure sounds like legal advice to
me.

------
digitalzombie
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
Fantastic! Knowing a little bit about the law can really help you out in
modern life (one could say unfortunately).

~~~
cookiecaper
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.

------
linsomniac
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.

~~~
urethrafranklin
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?

~~~
linsomniac
If the text next to the agent says "Listing Agent" then yes. For listings
where the agent chose to share the listing with Zillow, they will show up,
maybe with a good picture, maybe not, along with a bunch of "premier agent"
listings. These are agents that paid to be put on this property, like Google
Adwords for Real Estate.

But some listings don't have the listing agent on Zillow. See my example
below.

Take for example this:

[https://www.zillow.com/homes/for_sale/13911266_zpid/globalre...](https://www.zillow.com/homes/for_sale/13911266_zpid/globalrelevanceex_sort/40.587494,-105.084014,40.537612,-105.142894_rect/13_zm/)

vs:

[https://www.coloproperty.com/listing/details/1125163](https://www.coloproperty.com/listing/details/1125163)

Jesse is the listing agent, that second page is from the MLS and is definitely
correct. The Zillow listing only lists a Premier Agent, and that is not the
listing agent.

------
yonran
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/c...](https://github.com/yonran/craigslist-
shortcuts/blob/master/cease-and-desist.md)). 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
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
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-
lon...](http://www.michaelgeist.ca/2017/06/clicking-agree-may-no-longer-mean-
agree-everything/)

------
kinkrtyavimoodh
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
"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
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.

------
rgbrgb
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.

------
JustSomeNobody
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
Can Zillow be held liable for lost revenues since Kate felt compelled to shut
down the site?

~~~
emodendroket
Was she making money off of it?

~~~
atom_enger
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.

------
baron816
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
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
> 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
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.

~~~
look_lookatme
> "there's no such thing as quality, but even if there is, we shouldn't
> acknowledge it or its absence"

Where do you live where this is the case?

------
LukeShu
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
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
If that were the case, then why didn't Zillow just say that?

~~~
mark-r
Saying "but the lawyers made me do it" doesn't get you a lot of sympathy.

------
huffmsa
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.

------
atom_enger
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
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.

~~~
jimktrains2
My wife and I bought our house using a Redfin agent. They were as hands-on or
-off as we liked. We could look at listings online and schedule tours and we
could ask the agent for any recommendations that might fit what we're looking
for, but maybe not where we were originally looking. They also helped with
negotiating and closing (as you'd expect of any Realtor, but it was nice
dealing with the same 2 people the whole time).

> Zillow has brought a knife to a gun fight.

:) I wonder if this will have any outcome for ToS, as that's was one of
Zillow's complaints.

~~~
lebca
To add to this point, I contacted a realtor through Zillow, had two email
exchanges with him where I asked specific questions about a property. Each
time, my questions were ignored, and his responses can be summarized as "are
you pre-approved?" In the second email, he politely redirected me to another
realtor that it appeared he was managing and I never heard from them again.

------
jonbarker
still alive on google image search!

------
ewanm89
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.

------
callmeed
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.

~~~
atom_enger
"I thought everyone knew this" is a dangerous assumption. Not only are you
assuming equal knowledge access but you're also assuming equal legal access.
I'd argue the legal system is not equally accessible and knowledge of the
system is even less accessible. I think the only safe assumption here is that
Kate did _not_ know the proper way to respond to this and asked for help from
the community. I would've done the same.

~~~
callmeed
I mistakenly assumed McM Hell was something closer to a business or run by
business person(s). As opposed to just a blog run by a single person.

My bad.

