There are few things I hate more than when tech platforms -- which have benefited from key rights provided to internet platforms and the public -- turn around and abuse the law to try to silence or kill off others. And the latest company to dive headfirst into this unfortunate pool of shame is Zillow, which is threatening to sue the person behind McMansionHell.com based on a number of different awful interpretations of the law that can be summed up as: "hey, you can't use our images to make fun of homes."
This threat against McMansion Hell is particularly dumb. On multiple levels. The threat letter offers up a bunch of theories for why McMansion Hell is illegal, none of which make any sense at all when you dig in. Zillow just looks like a particularly assholish, censorial thug.
McMansion Hell, if you didn't already know about it, is basically exactly what it says on the tin. It's a website that looks critically at some trends in home design. I've visited the site a few times in the past, but not in a while -- and because of the threat, the site is currently down. This is what you see as I write this:
But, before that, it looked something like this (via Google Cache):
I realize there's a lot there, but the site would take a bunch of images, of houses, sometimes adding annotations and captions and the go into great detail critiquing a trend, or style, or architectural or real estate idea. It was informative and funny. And, at least for the time being, it doesn't exist.
Zillow's legal theories here are... mostly of the crazypants variety. First, the letter says that McMansion Hell is violating Zillow's terms of service, because the terms of service forbid reproducing or modifying images on Zillow.
You are in violation of the Terms, and admit to this Yourself in certain posts on Your Site, wherein You state that "[a]ll photographs in this post are from real estate aggregate Zillow.com..." and reference the fact that Your posts feature "[m]anipulated photos."
First off, Zillow cannot use its terms of service to wipe out fair use as a legal defense. The only remedy for Zillow is to stop the person behind McMansion Hell, Kate Wagner, from having an account on the site. But since many of the images are publicly available, she absolutely has a right to make non-infringing fair use reproductions and derivative works. This general threat that if you violate the terms that the company comes up with itself you've run into legal trouble is nonsensical (even though some try to make CFAA arguments about this -- but we'll get to that).
Next, Zillow's lawyer insists that this is not fair use. The argument here can basically be summed up as "No Fair Use Allowed."
In addition to violating the Terms, Your actions infringe on the rights of each copyright holder of the images. You state that the Images are used "for the purposes of education, satire, and parody consistent with 17 U.S.C. § 107," which appears to be a claim that Your use constitutes fair use. Courts weight four primary factors in determining whether use of a copyright work is fair use. When those factors are applied to Your use of the Images on Your Site, none support an argument that Your use is fair use.
That's it. Say there are four factors, mention none of them, then say that none of the factors apply. While it is true that merely saying that you're using the images for fair use purposes is not enough to shield you if you are infringing, here it seems to pretty clearly be fair use under all of the factors. The use is clearly transformative. Whereas Zillow is about selling houses, McMansion Hell is about providing commentary and criticism about real estate and residential architecture. That's a very different use, and showing images of actual homes seems perfectly key to that, and we have multiple cases that have said similar uses are fair use. On top of that, there's tremendous commentary and criticism to go along with the images, which makes it an even stronger fair use argument.
And, let's not forget that, as far as I know -- and as the letter more or less admits -- Zillow doesn't hold the copyright in these images. It's merely licensing them from the actual copyright holders, and thus it can't make any credible copyright threat against McMansion Hell, as it doesn't even hold the rights in question. What a joke.
Finally we get to the CFAA argument which, of the three arguments made, is the dumbest. But at least there's an actual legal issue there -- unlike the previous two:
Furthermore, Your activities may violate the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and state laws prohibiting fraud and interference with Zillow's business expectations and interests.
Of course, note the lack of any explanation for how this violates the CFAA. That should be a pretty strong statement that Zillow's lawyer knows there's no substance to this argument, but wants to make the threat letter sound as scary as possible (which worked). The only argument that the company could probably come up with is the claim that violating the terms is what violates the CFAA -- but those arguments have mostly (though not entirely) failed in court. Even when the argument has been accepted, I fail to see how the situations in those cases would apply here to a blog doing commentary.
In other words, all three of the supposed arguments against McMansion Hell are silly in the extreme. Zillow and its lawyer, Christopher Poole, (note: not moot) should feel bad. It appears that Poole (the lawyer one) just joined Zillow last month. Hopefully, this was the overeager new guy thinking he was doing something good, rather than shitting all over Zillow's brand as a supporter of a free and open internet.
Hopefully as this gets out, and people realize just how ridiculously censorial and obnoxious Zillow appears, the company will reconsider and apologize. This is not just bad behavior. This is attacking free speech on an open internet -- the same open internet that allowed Zillow to exist and thrive in the first place. The company should be ashamed.