Hey, As an old copyright lawyer who has negotiated deals opposite Zillow and sued folks who have scraped real-estate listing data illegally from real-estate listing websites, I thought I might weigh in a bit. I'm not actually siding with Zillow here, but I think you're being unreasonably hard on the (possibly young) Zillow attorney.
In fact, Zillow IS legally able to restrict use of copyright-protected materials and even facts (which are not subject to copyright at all) on its website and apps through its terms of use or end-user license agreement (EULA), assuming that the EULA is really a contract (some certainly are not) and that it has language restricting these uses.
So it's not really a fair-use issue. I have fair use rights over images I find on the web, UNLESS I agree (through a EULA or otherwise) not to exercise those rights in return for something--like access to the website. The Seventh Circuit decided this in 1996 in ProCD v. Zeidenberg, and it has not seriously been challenged since.
The letter from Zillow's attorney emphasizes Zillow's rights under the EULA, and it does not claim copyright infringement from Zillow's perspective. Attorney Poole says only that "Your actions infringe the rights of each copyright holder of the Images." In fact, Zillow may be under contractual obligation with the folks who supply images to it to prevent those images being used elsewhere.
The CFAA argument is silly, but then, we teach lawyers (young and old) to throw in everything but the kitchen sink.
I like McMansion Hell, so I'd be sorry to see it come down permanently. But I'm not as ready to say its use of these photos is slam-dunk fair use as y'all are; and its operators are subject to the contract law surrounding EULAs just like the rest of us.
(P.S. No, I don't read all the EULAs that I'm purportedly entering into, either.)
-Brian
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Well, Zillow may really be within its rights here...
As an old copyright lawyer who has negotiated deals opposite Zillow and sued folks who have scraped real-estate listing data illegally from real-estate listing websites, I thought I might weigh in a bit. I'm not actually siding with Zillow here, but I think you're being unreasonably hard on the (possibly young) Zillow attorney.
In fact, Zillow IS legally able to restrict use of copyright-protected materials and even facts (which are not subject to copyright at all) on its website and apps through its terms of use or end-user license agreement (EULA), assuming that the EULA is really a contract (some certainly are not) and that it has language restricting these uses.
So it's not really a fair-use issue. I have fair use rights over images I find on the web, UNLESS I agree (through a EULA or otherwise) not to exercise those rights in return for something--like access to the website. The Seventh Circuit decided this in 1996 in ProCD v. Zeidenberg, and it has not seriously been challenged since.
The letter from Zillow's attorney emphasizes Zillow's rights under the EULA, and it does not claim copyright infringement from Zillow's perspective. Attorney Poole says only that "Your actions infringe the rights of each copyright holder of the Images." In fact, Zillow may be under contractual obligation with the folks who supply images to it to prevent those images being used elsewhere.
The CFAA argument is silly, but then, we teach lawyers (young and old) to throw in everything but the kitchen sink.
I like McMansion Hell, so I'd be sorry to see it come down permanently. But I'm not as ready to say its use of these photos is slam-dunk fair use as y'all are; and its operators are subject to the contract law surrounding EULAs just like the rest of us.
(P.S. No, I don't read all the EULAs that I'm purportedly entering into, either.)
-Brian
Techdirt has not posted any stories submitted by Brian Larson.
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