Apartment Complex Claims Copyright Of Tenants' Reviews And Photos, Charges $10k Fee For Criticism

from the thin-skin-still-surprisingly-expensive dept

Wed, Mar 11th 2015 11:33am — Tim Cushing

If you wanted more bad reviews than you could shake a legally-unenforceable clause at, you'd do this:

[Windermere Cay's] Social Media Addendum, published here, is a triple-whammy. First, it explicitly bans all "negative commentary and reviews on Yelp! [sic], Apartment Ratings, Facebook, or any other website or Internet-based publication or blog." It also says any "breach" of the Social Media Addendum will result in a $10,000 fine, to be paid within ten business days. Finally, it assigns the renters' copyrights to the owner—not just the copyright on the negative review, but "any and all written or photographic works regarding the Owner, the Unit, the property, or the apartments." Snap a few shots of friends who come over for a dinner party? The photos are owned by your landlord.

The Florida apartment complex claims the stupid clause is needed to prevent "unjust and defamatory reviews." It makes this claim -- not in a statement given to Ars Technica (which was tipped off by a resident) -- but in the introductory paragraph of the Addendum. From there it gets worse. Doing any of the following triggers a $10,000 fine, with $5,000 added on for each additional "infraction."

This means that Applicant shall not post negative commentary or reviews on Yelp!, Apartment Ratings, Facebook, or any other website or Internet-based publication or blog. Applicant agrees that Owner shall make the determination of whether such commentary is harmful in Owner's sole discretion, and Applicant agrees to abide by Owner' determination as to whether such commentary is harmful.

Then come the copyright demands.

Additionally, each Applicant hereby assigns and transfers to Owner any and all rights, including all rights of copyright as set forth in the United States Copyright Act, in any and all written or photographic works regarding the Owner, the Unit, the property, or the apartments. This means that if an Applicant creates an online posting on a website regarding the Owner, the Unit, the property, or the apartments, the Owner will have the right to notify the website to take down any such online posting pursuant to the Digital Millennium Copyright Act.

Of course, when confronted by Ars about the Addendum, the property managers claimed this was all someone else's fault.

Asked about the Social Media Addendum by Ars, Windermere Cay's property manager sent this response via e-mail: "This addendum was put in place by a previous general partner for the community following a series of false reviews. The current general partner and property management do not support the continued use of this addendum and have voided it for all residents."

I would imagine the support was removed and addendum voided shortly after Ars publicized it, and not a moment before. According to Ars, the resident who contacted the site was asked to sign this suddenly-unsupported addendum only "days before." But Windermere Cay's management now very likely regrets ever including it in the first place. Like so many others before it, Windermere Cay is learning that attempting to preemptively shut down criticism with bogus clauses and high fees almost always results in more criticism. Its Yelp page is swiftly filling up with negative reviews and -- like every other emotionally-charged incident on the internet, has already achieved Godwin.

Obviously, there are better ways to handle allegedly defamatory reviews. A $10,000 fine and a preemptive usurpation of tenants' copyright isn't one of them.

[And neither is this bizarre Craigslist ad from another, unrelated rental property -- which makes vague claims about "defamation" while shouting "LAWSUIT LAWSUIT LAWSUIT" across the ether.]

As multiple entities have learned over the years, you can't stop criticism on the internet. You can only hope to contain it. Legal threats and punitive fines tend to blow the walls right off the containment scheme. What should be handled with exceptional customer service and the rare lawsuit (for truly defamatory statements) is instead turned over to hamfisted legalese and intimidating dollar amounts -- both of which make things worse for the entities they're ostensibly in place to protect.

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Filed Under: apartment complex, apartment ratings, censorship, copyright, fees, florida, gag clause, reviews, social media
Companies: windmere cay

25 Comments

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limbodog (profile), 11 Mar 2015 @ 11:54am

Simple answer
"I did not take the photos, nor did I post the review. My friend Bob did."
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- Anonymous Coward, 11 Mar 2015 @ 12:16pm
  
  Re: Simple answer
  Just remember that if Bob was inspired just enough by your experiences and apartment, that he may be infringing on your copyright, which is actually the landlord's copyright.
  
  Man does copyright lead to some serious Blurred Lines.
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  - limbodog (profile), 11 Mar 2015 @ 12:23pm
    
    Re: Re: Simple answer
    I don't believe your experience is copyright protected, I think you have to actually commit to recording it somehow.
    
    Of course, I could be wrong. The law as it stands *is* nonsensical.
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    - DannyB (profile), 11 Mar 2015 @ 12:36pm
      
      Re: Re: Re: Simple answer
      You may not be able to copyright your thoughts (not fixed in tangible form), but you can patent them!
      
      Of course, you have to put them into the form of a patent application. But you can keep it 'submarined' for years and years where nobody can see it.
      [ link to this | view in chronology ]
  - Peter (profile), 11 Mar 2015 @ 1:37pm
    
    Re: Re: Simple answer
    I was inspired not by Bob or the original tenant, but by an internet blog. In the absence of any contract with Windermere Cay's, I should be safe to post my opinion about Windermere Cay's, and any photographic impressions I may associate with that honorable society.
    
    Where could I post these?
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  - Anonymous Coward, 12 Mar 2015 @ 3:35am
    
    Re: Re: Simple answer
    "Man does copyright lead to some serious Blurred Lines."
    
    Abolish copyright. Period.
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  - mojavewolf (profile), 12 Mar 2015 @ 12:58pm
    
    Re: Re: Simple answer
    A friend's telling would not be covered. Copyright only protects expression, not underlying facts. A friend's photo would not be covered, either. This was more intimidation than anything else. There are a lot of problems with this dumb policy and it couldn't withstand even a trace of sun light.
    [ link to this | view in chronology ]
    - Anonymous Coward, 14 Mar 2015 @ 10:52am
      
      Re: Re: Re: Simple answer
      "There are a lot of problems with this dumb policy and it couldn't withstand even a trace of sun light."
      
      It doesn't have to if you can't afford the lawyers to fight it.
      [ link to this | view in chronology ]
Nilt (profile), 11 Mar 2015 @ 11:57am

What's interesting to me, at least, is that the "consideration" for this transfer of copyright is the apartment owner condescending to lease the apartment. Is the rent somehow unrelated to that act?! I'd love to see a legal analysis of if that's even actually consideration, under the law, at all.
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- TasMot (profile), 11 Mar 2015 @ 12:11pm
  
  Re:
  Well, Of Course there is, in consideration of me, the tenant, paying you, the landlord, an ungodly amount of money every month to live in your pigsty, you, the benevolent landlord, also get to have all of my current and future copyrights in any creative work that I produce.
  [ link to this | view in chronology ]
  - Nilt (profile), 11 Mar 2015 @ 12:23pm
    
    Re: Re:
    In fairness, the place is hardly a pigsty. It's brand new and the guy originally reporting this to Ars is the only one to have ever lived in the unit. Not that this excuses the stupidity, but ...
    [ link to this | view in chronology ]
orbitalinsertion (profile), 11 Mar 2015 @ 12:34pm

Hey, is that 8x LAWSUIT subject to copyright or some sort of registered mark? because I have some vacant apartments to rent and I'm thinking this might be the way to go when advertising.
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Roger Strong (profile), 11 Mar 2015 @ 12:35pm

From Domestic Spying to Asset Seizure
The next amendment to US Constitution will not only ban accusations that the government has violated it, but will impose fines for making those accusations.
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- DannyB (profile), 11 Mar 2015 @ 12:41pm
  
  Re: From Domestic Spying to Asset Seizure
  Fines? Forget fines. Streamline it. Asset forfeiture is the way to go man!
  
  Concurrently with asset forfeiture proceedings, you can also 'disappear' the accuser. They don't need representation at any asset forfeiture proceedings, because, hey, they've been detained for allegations of accusing the government.
  [ link to this | view in chronology ]
Anonymous Coward, 11 Mar 2015 @ 12:46pm

Thats it buddy!
You have just lost that billion-to-one chance that I would ever rent or buy an apartment from you. Take that!
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Anonymous Coward, 11 Mar 2015 @ 12:58pm

WHAT WHAT, WHAAAAAAAAAAAAT??????

This so would NOT fly in Canada. Goddamn, we may have a worse Prime Minister than your President, but that's where it ends. Your nation's average IQ of 75 is really starting to piss me off. As a young'n I was impressed with the Clinton admin and even wanted to move down south, since taxes were much lower etc.

Man have my priorities changed since around ..well when I stayed up all night to see if that Bush guy was going to win. I just knew that if he was going to win Presidency in 2000, this new century would be one hell of a dystopia.
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- Anonymous Coward, 11 Mar 2015 @ 1:00pm
  
  Re:
  And I have to mention that I knew very little compared as to now but I knew enough, political hardcore punk had already shaped my mind by 1996 and goddamn, I even thought what they were singing about was a bit pushy then. Not anymore.
  [ link to this | view in chronology ]
- Doowleb, 12 Mar 2015 @ 10:31am
  
  Re:
  I see you rate your leaders by how close and cozy they are with Marx. Canadians are upset that you didn't move south.
  [ link to this | view in chronology ]
- Anonymous Coward, 12 Mar 2015 @ 10:39am
  
  Re:
  Obviously, it's not flying here either.
  [ link to this | view in chronology ]
- David, 12 Mar 2015 @ 12:02pm
  
  Re: What What
  Having elected a moron even worse than 0v0mit would take an IQ lower than 75 or intent to inflict lethally suicidal cultural wounds? Pick AH.
  [ link to this | view in chronology ]
Blackfiredragon13 (profile), 11 Mar 2015 @ 1:54pm

At it again.:(
Call me crazy but something tells me kleargear moved into the business of owning apartment complexes. How many Bitcoin does someone want to bet?
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- Anonymous Coward, 11 Mar 2015 @ 2:23pm
  
  Re: At it again.:(
  I just hope you do not live in California.
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tom (profile), 11 Mar 2015 @ 4:26pm

I guess the lawyers for this complex have not fully thought this out. Say as part of my comments on the apartment, I state how awful a site it is for producing child porn, complete with many vivid examples. By this contract, the apartment complex is now the legal owner of these images and subject to the laws for possession of same.
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Anonymous Coward, 11 Mar 2015 @ 5:16pm

Mike Masnick and Google just hate it when copyright law is enforced.
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Anonymous Coward, 11 Mar 2015 @ 7:32pm

The apartment complex has no idea how the Internet works.
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