I'm having a hard time seeing what exactly Zillow hopes to achieve? Do they think it's working?
All she has/had to do was take out that statement that 'it's from Zillow' and the problem goes away, Zillow doesnt care where you get pics from as long as they have no liability.
However, to be fair to the lawyer, the copyright claim is secondary. The primary claim in the C&D is a violation of the terms of service.
*In the legal sense, not in the moral sense. Though maybe that too.
You seem to be just guessing about what might be in the contract, but I'll run with it. Unless there's some affirmative duty to police in the contract, why couldn't they just ignore McMansion Hell? Ignoring is not the same as giving license.
Even if there's no affirmative duty to police, if you become aware of something that potentially makes you in breach in a contract, you're supposed to try to stop it. Otherwise if you get sued for breach it looks even worse for you - "they knew about it and were too lazy to do anything to stop it"
Is that true? If Zillow doesn't own the copyright, presumably they have some kind of license. Perhaps it has clauses like "we, Zillow, won't allow/abet/facilitate the use of these images on sites other than zillow.com, and/or for purposes other than advertising houses for sale".
Now, when you take these images and use them on another website for another purpose, who has standing to sue, and for what?
To put it another way, when you visit zillow.com, under what license are you downloading their images to render on your device? Surely under an implied contract you have with Zillow. Does the fact that they don't own the copyright prevent them from enforcing any limitations on your usage at all?
"Except as expressly stated herein and without limitation, you agree that you will not, nor will you permit or encourage any third party to, reproduce, publicly display, or otherwise make accessible on or through any other Web site, application, or service any reviews, ratings, and/or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services."
So yes, McMansion Hell could be violating their terms of use.
You're missing one. Do the modifications to the images as presented on her blog count as a "transformative work?" In that light, I do think this is a bit more straight forward than you suggest.
What confuses the issue is that they additionally offered advice that the use violates copyright law, but they specifically do no claim standing in the matter -- "... Your actions infringe the rights of each copyright holder ..." They don't claim to be one. Additionally (IIUC, and I am not a lawyer) fair use is still infringing. It is not a defence, it is used for calculating damages. So, I think their advice is factually correct, if misleading.
Similarly they claim that "... Your activities may violate the federal Computer Fraud and Abuse act", which is mostly irrelevant. It's the state that decides this, and if they want to complain, they have to go to the police.
To sum up, my reading is that Zillow feels this violates the terms of service that the person agreed to. They sent a C&D as is required for that kind of contract dispute. They added a whole bunch of scary, but meaningless crap to make is sound threatening. Not fantastic, but arguing about the meaningless crap does not address the actual issue -- did the person violate contract terms that they had agreed to? If so, no amount of discussion about fair use is going to be relevant.
Only the state can enforce the criminal parts of the CFAA, but there are civil parts as well.
Either way, I am not a lawyer and my understanding, ultimately, is limited.
seriously get out of your keyboard rage and ask yourself if you or someone you cared about couldnt sell your/their house because a blogger was making money by degrading it. What if the place gets vandalized due to this activity?
hate is hate. there is no 'good' hate.
Besides, your hypothetical dangers have literally never happened.
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.
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.
> 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.
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.
It's obviously an opinion piece, the way it's written does not communicate that it's attempting to be informative other than collecting a number of other more informative articles, and offering the author's viewpoint. Contrary to what some on here believe, it is alright to both bring information forth about a topic and express an opinion on it, and personally I find that type of content much more engaging than exercising false equivalency nonsense and making a stupid company's stupid position look less stupid in the name of "fairness."
> As for Zillow not owning the rights
If it owns the rights or is licensed to exercise the rights, that doesn't change the fact that it has no case. That was my point.
MST3K has to clear copyrights for the original films, even though they "mark up" those originals in the same way that McMH does. RiffTrax did not have to clear rights with anyone, at the cost of some customer convenience.
I don't know for certain whether MST3K licensed things because they had to, or because they didn't want to be sued to Hell by film catalog rights-holders. It certainly seems like ridicule, commentary, and parody to me. I don't think it matters all that much whether anyone makes money from it or not. A professor can fairly use photos for educational purposes in a class where all the students pay tuition, right?
As a potential juror, I am prejudicially biased that McMH's use is fair use. If I were a judge looking for a test, I think I would ask "Is it sufficiently transformative that this use does not compete with the original?" For MST3K, you're making motion picture entertainment from existing motion pictures. Watching the MST3K version of a work competes with watching the original. So MST3K is not fair use. But reading McMH does not compete with browsing those real estate listings. So it's probably fair use.
No facet of the fair use defense is based on the fact that one is exploiting a market for the work that the rightsholder currently isn't. On the contrary, the fact that one is exploiting any market at all with the work is a strike against any fair use defense.
Attempting to argue that to a judge that does not employ the same boundary test is therefore likely to fail.
I get these types of responses all the time, whenever someone detects that I am crossing onto foreign turf. The law does not belong exclusively to legislators, judges, and lawyers. I am entitled to have an opinion that conflicts with established precedents. And as many of us are painfully aware, the law is sometimes an ass.
This person is co-opting the images, but not to sell the homes or defame the work of the photographer, but to mock the (ugly) style of the homes. There is no impact to the rights holders or even the people using the photos by virtue of this silly little blog existing.
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."