Zillow Still Doesn't Get It: Second Letter About McMansion Hell Is Still Just Wrong
from the not-fixing-things dept
One of the big stories of the week so far was Zillow's mind-numbingly bizarre decision to have a recent-hire lawyer send out a completely bullshit threat letter to the website McMansion Hell. Things have not gone well for Zillow in the wake of this. Multiple news articles have been mocking Zillow's decision, and my own Twitter feed has been filled with people saying unkind things directed at the company. And then there's whatever this is:
These signs plastered all over outside of Zillow HQ in Seattle today after Zillow threatened to sue McMansion Hell https://t.co/uAj4ctQJgy pic.twitter.com/qGFPhJoKm8
— Mike Rosenberg (@ByRosenberg) June 27, 2017
Given that, as we discussed in our original post, there is no legitimate legal claim here, the only thing that the threat letter seems to have done is piss off a ton of people about Zillow. That's bad.
And it doesn't seem to be getting better. Rather than doing what I thought the company would do on Tuesday (i.e., admit that it fucked up, slap the lawyer on the wrist, apologize profusely and promise to put in place better processes to avoid this sort of thing from happening again), the company is trying to justify its decision. The Verge has the followup letter that was sent by Zillow's VP of Communications & Public Affairs, trying to better "explain" the reasoning for the original letter. It doesn't help. It actually makes things worse.
Dear Kate,
Over the past day, we’ve had a lot of questions from the media about the cease and desist our legal team sent to you. I understand why – your blog is well-loved by its many fans.
Okay. There's no apology in that first line, so we're already off on the wrong foot. And... seeing as Zillow admits the blog is "well-loved," didn't anyone at Zillow think that maybe sending a ridiculous and misleading threat letter was a bad idea?
I wanted to write to both thank you for taking down the photos, but also to give you a little bit of context around the request.
She didn't take down the photos. She took down the whole blog. Because you sent a completely bogus threat letter than never should have been sent.
Mostly, though, I want to stress that we do not want you to take down your blog. We hope you will be able to resume your writing and find other sources for photos.
Except... it's totally reasonable for someone scared by a bogus threat letter to pull down the whole site, rather than go back and individually ruin each story which all rely on images.
Second -- and more importantly -- she doesn't need to find other sources for photos because (1) Zillow has no copyright interest here and should shut up about the copyright and (2) FAIR USE protects what she is doing. So this letter is just... still wrong.
As for why we requested you remove the photos from Zillow – we do not own the rights to many of the photos on our site, and therefore can’t give permission for third parties, such as yourself, to take the photos from our website for any purpose. We get them from brokerages and MLSs who are advertising homes for sale and through those agreements we have an obligation to protect the interest of the copyright holders who license the images to Zillow.
And this paragraph... makes things even worse. First off, you didn't "request" that she remove the images, you sent a silly, misleading and simply wrong legal threat letter. That's a massive difference. It wasn't a "hey, please could you..." it was "if you don't do this we're going to sue you and ruin you." Second, you're admitting again that you don't hold the rights, which means you also don't need to worry about "giving permission" to others, because it's not yours to give. Third, thanks to fair use, no one needs to give or even ask for permission. So what's your point here other than that Zillow doesn't seem to comprehend the most basic concepts of copyright law?
Fourth, since Zillow freely admits that it has no copyright in these images, then, no, it does not have any "obligation" to protect the copyright holders. In fact, under the DMCA you can get into trouble for falsely trying to represent a copyright holder when you have no legitimate right to do so. And, fifth, just because it covers this line too: FAIR USE means that you're not protecting the interest of copyright holders anyway.
We are happy to answer any questions about this, and I sincerely hope you are able to find other sources for photos.
Best,
Katie Curnutte
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.
Meanwhile, another organization that does understand copyright and fair use much better than Zillow is EFF. And EFF is now representing McMansion Hell. I get the feeling Zillow is going to keep regretting this until someone there grapples with just how dumb the company has been this week from both the legal and the communications side.
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Filed Under: cease and desist, cfaa, copyright, mcmansion hell, threats
Companies: mcmansion hell, zillow
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A Fair Use Proposal
What if we made the harasser first pass through a court system (their paying their own expenses) to first prove that a given use can be reasonably assumed NOT to be fair use before getting the infringer involved.
I would say this is similar to the grand jury indictment that most police officers must go through before being charged with misconduct... You weed out the cases that have no merit or would be too hard to litigate, and only the worst offenders make it through.
Only after that point could a law firm say that there is reasonable suspicion of infringement and could only then send a threatening letter of this type.
At that point the infringing party would know that there is a POTENTIAL for not being fair use with the exact merits of why it may be reasonable to assume that it is not within the guidelines. They could choose to take down their content at this time or litigate knowing exactly which tenant they are reasonably suspected of breaking.
I think it would ultimately make fair use more fair and less about how much money a person has. Make the onus back on the one claiming damages rather than on the speaker defending themselves...
...Or you could just make a stronger federal anti-SLAPP law... but even then, you still have to litigate which makes it less appetizing to most people.
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Re: A Fair Use Proposal
If you have to "pay" for justice, then you can't get it!
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Re: Re: A Fair Use Proposal
Yeah, see how well people do when they represent themselves.
I'm...not sure what you mean by this.
If you're talking about public defenders in civil suits, I could get behind that.
If you're talking about allowing anyone to sue anyone, at any time, without having to spend any money on it, I think that's a very bad idea.
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Re: Re: Re: A Fair Use Proposal
"If you're talking about allowing anyone to sue anyone, at any time, without having to spend any money on it, I think that's a very bad idea."
What an incredibly short-sighted statement that completely disregards reality. I do not think there is a reason to discuss this further with you. Your mind is clearly closed.
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Re: Re: Re: Re: A Fair Use Proposal
That's a fair criticism. What do you propose as a solution?
You'd have to discuss it in the first place to discuss it "further", Mr. Coward. Passive-aggressively insulting me without actually making any substantive criticism of what I said is not discussion.
You really don't see the potential problems with removing the barrier to entry for lawsuits?
Let me put it this way: what if anybody could sue you, right now, for any reason, at no expense and with no fear of consequences for filing a meritless suit? You see how that might pose a problem? Or are you too busy shortsightedly disregarding reality?
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Re: Re: A Fair Use Proposal
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Re: A Fair Use Proposal
The problem is, as the saying goes, you can get a grand jury to indict a ham sandwich. Grand juries indict whoever the prosecutor wants them to; they're not really a significant barrier.
I do think a preliminary step requiring a takedown filer to make a case for having cause would be a good idea, though. I'm just not sure if your suggestion would be an effective way of doing it.
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Re: Re: A Fair Use Proposal
That's why, in my next life, I hope to not come back as a ham sandwich. The legal fees must be outrageous.
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Re: Re: Re: A Fair Use Proposal
naw.... you just get eaten alive.
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Re: Re: A Fair Use Proposal
This is ONE of the reasons that every Nation gets the government they deserve.
Most people view court as a trap where you will be judged by people too stupid to get out of jury duty. Every person that holds this view and gets fucked by the courts deserves that fucking without lube! As a citizen, your time as a member of a Jury, ANY Jury counts MORE than your vote for your representatives and definitely more than who is President. It is the one change you truly have to block tyranny, but most citizens coward out and avoid it. I used to be that coward, but not any longer.
I no longer serve on jury as a biased and ignorant citizen. I will not hesitate to acquit a citizen, even if they are technically guilty of breaking that law, if I think the government is abusing that law to rail road citizens with.
It's called Nullification, every citizen should know what it is! If you don't then you are worthless as a citizen and more valuable as a mindless serf!
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Re: Re: Re: A Fair Use Proposal
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Re: Re: Re: Re: A Fair Use Proposal
Yea... go ahead and keep asking people to play with those dolls. It looks like they have been touching you and plenty from the looks of it!
The founding Fathers created the Jury system for a reason. The government does not work for us, because we don't know how to work for ourselves. If we citizens were truly tired of it all we could fix it.
I am thinking you like getting touched! Admit it!
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Re: Re: Re: A Fair Use Proposal
I will agree that 1) jury duty is important, and 2) it is important to do a good job.
Many people lack critical thinking skills, or have them overwritten by other more compelling things like slogans and ideology... so yeah that affects citizens in many ways, even the ones who feel voting and jury duty is important. (Having someone reasonable to vote for is important also.)
Jury nullification is pretty important also, but seems to generally be abused more than used when it comes into play, whether or not they know what they are doing is nullification.
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Re: Re: Re: A Fair Use Proposal
I hate regulations but I love anti-Englightnment monarchists like Joseph de Maistre! I love Them almost sas mauch as I love Capital letters, "quotation marks", exaclamation marks, and Paint chips!
If we had a King like France had a King like de Maistre thought every Nation should have a King, everything would be Better. He would be a Benevolent King who would't have to worry about an Ignoratn and "rotten" electorate! He would never try to regulate Leaded Paint, and would let me eat all the "apint chips" I want!
Every nation eats the Paint chips it Deserves!
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Re: Re: Re: Re: A Fair Use Proposal
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Re: Re: Re: Re: Re: A Fair Use Proposal
Every antion eats the Paint chips it Deserves!
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Re: Re: Re: Re: Re: A Fair Use Proposal
He reaps what he sows.
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Re: Re: Re: Re: Re: Re: A Fair Use Proposal
I think he's talking about Maistre, and suggesting that even if Maistre was a monarchist religious nut, he was right when he said "Every nation" blah blah fucking blah.
The thing is, though, when Maistre said that (an earlier, more accurate translation has it as "Every nation has the government which it is fit for"), what he meant was that countries have monarchs for a reason, that kings have God on their side and ordinary people are not competent to govern themselves. He was specifically making this point in regards to Alexander I of Russia's proposal to institute a constitutional parliament in Georgia. Maistre was against that; he felt that people should be governed by emperors, not elected officials, and that Georgia's government should stay the way it already was -- "Every nation has the government which it is fit for," get it?
It's a garbage quote by a garbage person, that ignorant people like our paint-eating friend quote out of context because they think it makes them sound smart. And because, not to put too fine a point on it, they think it means the opposite of what it actually means.
To say "Okay, so Joseph de Maistre was wrong about theocratic monarchies, but he was right with that 'every nation' quote" is incoherent. Because that 'every nation' quote is about supporting theocratic monarchies.
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Re: Re: Re: Re: Re: Re: Re: A Fair Use Proposal
What you're saying amounts to "de Maistre didn't really say that". I agree there.
But that doesn't mean the misquote doesn't convey some truth.
I think nations do tend to reflect the character of their inhabitants.
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Re: Re: Re: Re: Re: Re: Re: Re: A Fair Use Proposal
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Re: Re: Re: Re: Re: Re: Re: Re: Re: A Fair Use Proposal
(I've spent a lot of time around those parts...)
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: A Fair Use Proposal
There are, demonstrably, nations that get governments they do not deserve.
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Re: Re: Re: A Fair Use Proposal
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Re: A Fair Use Proposal
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Just on percentages, I predict that Masnick will end up entirely wrong here too.
Anyhoo, I'M NOT SURE on this case -- however, if your biz depends on using someone else's work, then it's on the verge at best. From Meltwater to Aereo, it's been proven an untenable basis.
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Re: Just on percentages, I predict that Masnick will end up entirely wrong here too.
out_of_the_blue just hates it when fair use is enforced.
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Re: Just on percentages, I predict that Masnick will end up entirely wrong here too.
If you're including a case of this "magnitude" as major, we have to consider cases that are just as "major", if not bigger. Considering the above, it's hardly the slamdunk you like to think it is.
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Re: Just on percentages, I predict that Masnick will end up entirely wrong here too.
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Re: Just on percentages, I predict that Masnick will end up entirely wrong here too.
But right on the many cases you're deliberately not thinking of. Strange that, if you remove all the times you've been wrong from the equation, you've been right 100% of the time!
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Re: Just on percentages, I predict that Masnick will end up entirely wrong here too.
I suspect that the final opinion on the EO will take a while to produce, and be a rather nuanced creature at that...
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Re: Just on percentages, I predict that Masnick will end up entirely wrong here too.
The opinion was unsigned, Whatever; it didn't list which justices voted which way (aside from Thomas, Alito, and Gorsuch, who wanted to keep the entire immigration ban without restriction).
There is no evidence that it was 9-0; it was very likely 5-4.
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Wait.
If they do not own the copyrights to those images, what the hell gives them any legal standing to request a copyright takedown?
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Re:
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Re:
That would be the fact that chilling effects are usually effective.
Hope This Helps!
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Re:
It's possible that the rightsholders have authorized Zillow to act on their behalf -- but I haven't seen any evidence of that, and if it were the case you'd think Zillow would just come out and say so.
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Re: possible that the rightsholders have authorized Zillow
But that doesn't give them any power, or obligation, to claim rights that don't exist in the first place.
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Re: Re: possible that the rightsholders have authorized Zillow
Even if they do, this is frivolous.
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Re: Re: Re: possible that the rightsholders have authorized Zillow
Adding:
Per EFF, Zillow is indeed claiming that it is obligated, by contract with the rightsholders, to enforce their copyrights.
EFF responds:
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Fair use doesn't mean that
Fair use only covers copyright. It doesn't mean she can continue accessing a website after being asked to stop. That may or may not be allowed but has little to do with copyright law, and of course Zillow's lawyers should have known that.
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Re: Fair use doesn't mean that
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Re: Fair use doesn't mean that
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Re: Re: Fair use doesn't mean that
No, they can't stop people from reading stuff "on the [public] Internet", but it might be possible to ban people from reading stuff on Zillow's private servers. In most US states other than California, people can be banned from effectively-public areas that are technically privately owned.
It would be a total waste of Zillow's time and money to be a test case for a "digital notice of trespass". They'd look bad, and even if they win they'd get nothing useful.
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Re: Re: Re: Fair use doesn't mean that
It would. But, all the information in question here is public.
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Re: Re: Re: Re: Fair use doesn't mean that
It's public now, so Zillow can't do anything about images already copied. But the user who got the C&D had been getting the images from Zillow's privately-owned servers, and that's what they could maybe put a stop to.
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Re: Re: Re: Re: Re: Fair use doesn't mean that
That puts a new spin on this I haven't heard, do you have a source?
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Re: Re: Re: Re: Re: Re: Fair use doesn't mean that
It's also possible that in that case the terms of the agreement you have to accept in creating such an account would state that you aren't allowed to take the images to use elsewhere - in which case Zillow might have a breach-of-contract case, and would certainly be entitled to close the account.
As I've never had any real interaction with Zillow myself, I can't speak to the accuracy of either of those suggestions.
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Re: Re: Re: Re: Re: Re: Re: Fair use doesn't mean that
Well, I have no problem browsing listings and saving images if I go to the site without a login. So, if that's the suggestion then he's wrong, unless there's evidence that some other method was used.
"It's also possible that in that case the terms of the agreement you have to accept in creating such an account would state that you aren't allowed to take the images to use elsewhere - in which case Zillow might have a breach-of-contract case, and would certainly be entitled to close the account."
Well, that would be irrelevant in the current case since the accusations are related to copyright and not breach of contract. Regardless, you don't need an account before browsing listings, so if they intended there to be security it's not there, at no fault of the person browsing.
"As I've never had any real interaction with Zillow myself, I can't speak to the accuracy of either of those suggestions."
Me neither, but I had a quick look before questioning the AC, and I found zero problems getting images without registering.
I suspect that he's one of those people who doesn't understand that when you put content on to a public server, you can't then claim it's private property when someone accesses or uses it in a way you don't like. Whatever the preferred status of the content, it was delivered publicly.
His talk about trespassing suggests that's he's confused in this way (assuming that's the same AC), but I like to be sure I'm reading the correct argument before tearing it down if possible.
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Re: Re: Re: Re: Re: Re: Re: Re: Fair use doesn't mean that
Well, some people have argued (and I think still do argue) that putting up a "terms of service" page on your Website stating the terms under which you are offering the site's contents, and also stating that "by using/browsing/etc. this Website, you are indicating your acceptance of the terms of this agreement; if you do not accept this agreement, do not use/browse/etc. this Website", creates a valid and enforceable "do not cross" line. The proposition seems dubious to me (except perhaps under the CFAA...), but if they've ever been proven wrong in court, I don't recall the incident.
That said, you're very likely right, all in all.
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Re: Fair use doesn't mean that
Actually, it does. If the website is public and there's not been anything put into place to block her, she can access it whenever she wants.
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Regretting? Do the letter they sent to 'clarify' things sound like "regretting"?
On a side note, when I read things like "And EFF is now representing McMansion Hell." or involving Popehat, Randazza and other heavyweights in the area it sounds like https://youtu.be/xm7CkJ-D4cM
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Passing the buck theory
FYI, My opinion is that that McMansion is using fair use correctly, that Zillow is being a weak minded bully that doesn't understand the bigger PR picture, and that this type of issues scares everybody who creates content but can't afford to retain a legal team.
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pro tip: It's best to scrub the pan AFTER it's out of the fire
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My dyslexia really messed up her last name.
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So you aren't even sure they hold the actual copyrights on the images submitted to you.
"we do not own the rights to many of the photos on our site"
So you are operating in the same area where McMansion Hell is legally?
"we have an obligation to protect the interest of the copyright holders who license the images to Zillow"
Who appointed you copyright cop? You know it is settled law that you can't just transfer the right to make legal threats... donja? This is actually settled copyright law.
Under copyright law you'll have no interest in the photos, because you don't hold the copyrights to them. Any agreements you made with the actual copyright holders (or the random person who claimed to have copyright, because you'd NEVER make sure they were the actual copyright holder) sound nice in contracts, but legally are dubious.
As I am want to do...
Bye Felecia.gif
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Re: "Who made you copyright cop..."
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Re: Re: "Who made you copyright cop..."
A realtor could have a teenager shooting the pictures, who holds that copyright? Is a proper transfer executed?
Zillow takes none of the pictures. Zillow has NO copyright interest in the images. Zillow has NO legal basis to make threats from.
See comment below about the agent using a picture taken by the homeowner, did they execute a contract to assign the copyright to the realtor? If not the realtor could be in serious trouble if they put that image on other services representing they hold the copyright.
Zillow - Stupid lawyer, stupid talking head....
They should get employees who know the law they attempt to speak about & hire competent lawyers who don't always give you the answer you want to hear.
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Re: Re: Re: "Who made you copyright cop..."
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Re: Re: Re: Re: "Who made you copyright cop..."
It's certainly a possibility.
Zillow looks like the bad guy because Zillow is the bad guy.
Even if Zillow is only pursuing a frivolous, meritless lawsuit at its clients' insistence, it's still pursuing a frivolous, meritless lawsuit.
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Re: Re: Re: Re: "Who made you copyright cop..."
Someone figured out that McMansion Hell was getting the photos from Zillow and started screaming.
Zillow did the "smart" thing & sent a "legal" notice.
Listening to lawyers isn't always the best idea, their income depends on tell you yes we can do this.
After the huge backlash some PR hack decided she could spin this with quasi-legal assumptions and made it worse.
MLS & Realtors could try to screw Zillow over, and that will end as well at the threat letter to McMansion Hell. Just look at those industries that screamed Google had to do more & then begged Google to come back when they had huge drops in traffic because Google picked the non-insane option of walking away rather than cough up cash for having sent them traffic.
Zillow needs to pull their heads out of their collective asses. Your brand should be important, but you just shredded it twice. Sometimes it helps to take a breath & not assume everything is a business destroying attack.
You thought your business was taking a hit from McMansion Hell??
People are printing signs supporting McMansion Hell and posting them around your headquarters, roasting you online, and sending you tweets informing you that some asshole is signing your name to stupid letters...
Trying to bully McMansion Hell into silence... How's that working for you?
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Name change
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Zillow's so-called "Contact Us" page
I was hoping they'd have some eMail link or text box that would accept comments... but they don't. How the hell do they expect people to tell them about their censorious douchebaggery? Homing pigeons? Smoke signals?
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Re: Zillow's so-called "Contact Us" page
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Maybe Zillow Is Just Mad at Copyright
http://realtormag.realtor.org/daily-news/2017/02/13/zillow-ordered-pay-83m-in-copyright-case
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Re: Maybe Zillow Is Just Mad at Copyright
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Oh boy... this is the same kind of logic that brings us people slapping NC licences on derivative works they "don't own" part of because they think they'll get in trouble for "granting" the public all the freedoms to use something... because they think that using a permissive licence with no explicit don'ts carved out of it could be seen as encouraging infringement.
(When really, an NC licence is designed to reserve their exclusive rights, effectively claiming more ownership over the thing they claim not to own. It's as good as stating they outright plan to make heaps of money on the thing they're afraid to infringe.)
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