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.
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.
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.