Zillow Threatens To Sue Blogger For Using Its Photos For Parody (theverge.com) 145
Kate Wagner is facing potential legal charges by real estate Zillow for allegedly violating the site's terms of service by reproducing images from their site on her blog. Wagner's blog is called McMansion Hell -- a Tumblr blog that "highlights the absurdity of giant real estate properties and the ridiculous staging and photography that are omnipresent in their sales listings," writes Natt Garun via The Verge. From the report: A typical McMansion Hell blog post will have a professional photo of a home and / or its interior, along with captions scattered throughout by Wagner. She also adds information about the history and characteristics of various architecture styles, and uses photos from the likes of Zillow and Redfin to illustrate how so many real estate listings inaccurately use the terms. Under each post, Wagner adds a disclaimer that credits the original source of the images and cites Fair Use for the parody, which allows for use of copyrighted material for "criticism, comment, news reporting, teaching, scholarship, and research." In a cease and desist letter to Wagner, Zillow claims Wagner's reproduction of these images do not apply under the Copyright Act. Additionally, the company claims McMansion Hell may "[interfere] with Zillow's business expectations and interests." As a result of the potential lawsuit, Wagner has temporarily taken McMansionHell.com down. In a statement to The Verge, Zillow said: "Zillow has a legal obligation to honor the agreements we make with our listing providers about how photos can be used. We are asking this blogger to take down the photos that are protected by copyright rules, but we did not demand she shut down her blog and hope she can find a way to continue her work."
Last I checked... (Score:5, Insightful)
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Yeah, well, those images are available without agreeing to any ToS or necessarily even noticing it. And the letter she got was claiming this is some violation of the CFAA, which is just over the top. It's something the EFF has been extremely critical of and I honestly thought that theory had already lost in court. Private companies should not be able to turn to turn disagreement about the use of their website into a federal crime.
Re:Last I checked... (Score:5, Insightful)
Just because a theory has already lost in court doesn't mean a big company can't use it to scare the average citizen.
Re:Last I checked... (Score:5, Insightful)
The blogger is a grad student. Most grad students don't have a spare $50,000 for attorney fees. Without an attorney, the grad student will likely not succeed in court (thanks to attorneys making court opaque and inscrutable in what's effectively a massive confluence of rent-seeking behavior).
American justice is often for sale.
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In many states the company would fall to anti-SLAPP laws and end up eating their costs, the EFFs costs, a piece for the defendant, and a nice big fine\sanction. At the federal level the Speak Free Act amended title 28 to grant anti-SLAPP protections to the little guy.
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See also unenforceable exculpatory clauses in leases, parking lots, and the like.
Re: Last I checked... (Score:1)
Progress:
1) Physical violence to deter actions which we don't like
2) Threats of physical violence to deter actions which we don't like
3) Threats of legal action to deter actions which we don't like
Yay! Civilization achieved!
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How about you just be a little more respectful?
How about you pour some hot grits down your boxer shorts?
An agreement was entered upon. It doesn't matter what the law is as long as there was an agreement. IAAL and this is how it works.
Web site "terms of service" are about as enforceable as click-threw EULAs.
IANAL, but I keep hearing this thing about parody being some kind of "protected class", so maybe as all the Slashdot Pundits say, "suck on it!"
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*mocking voice*
Hi, my name is Gay Boner Sex, I'll be your public defender this morning.
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*
IAAL and this is how it works.
Then you are a bad lawyer and are presenting legal advice to the public. A bad move.
An agreement was entered upon. It doesn't matter what the law is as long as there was an agreement.
You are certainly no lawyer. Firstly, agreements are not contracts. Contracts are not legally binding unless there is a "meeting of the minds". In non-lawyer speak, which I am sure is the only kind you understand: both sides must be able to negotiate the terms. Take it or leave it contracts with not even the opportunity to negotiate or even contact the other party for negotiation have been struck down time after time.
Second
Re:Last I checked... (Score:5, Informative)
You are certainly no lawyer.
I'm not OP, but IAAL (though not a US one).
Firstly, agreements are not contracts.
In the trade we use the two words almost interchangeably. If you want to be pedantic, a contract, is an agreement which the Law will recognise and enforce, but when a lawyer speaks about an "agreement" chances are it is a contract she is talking about.
Contracts are not legally binding unless there is a "meeting of the minds". ...
Yes, but that is to be inferred from the behaviour of the parties. Thus accessing photos on the site might suffice to evidence the requisite consensus ad idem. I wouldn't want to say.
OK Counsel, please explain Carbolic Smoke Ball on that understanding of the "meeting of minds," and how that would differ from accessing of web site.
Take it or leave it contracts ... have been struck down time after time.
By virtue of them being take-it-or-leave-it agreements, or by virtue of unfair terms hidden therein? Some curial authority here please!
Everyday life is replete with take-it-or-leave-it contracts: What real prospect do I have to negotiate the price of a container of milk with the bar-code scanner at my local supermarket, for example.
EULA and ToS contracts are unenforceable
As I'm not familiar enough with EULAs, nor with the case law surrounding online acceptance in my own jurisdiction, a fortiori in any others, I shall not comment specifically. Only to say that it is quite a strong claim to insist that all Terms of Use/Service etc are per se unenforceable. Are you certain you are a lawyer?
Imagine a "You must agree to the ToS before entering." line in small print at the bottom of a flower pot near a public business' front door.
Yet when prominently displayed conditions of entry are entirely enforceable. To return to my local supermarket, it is a (prominently displayed) condition of entry that any bags brought onto the premises may be inspected. The deal here is that the business will surrender their right to sue you in trespass for your agreeing to the conditions.
*By reading this post you legally agree to ...
Before we even get to the statutory safeguards against unfair terms it needs to be noted that this condition is void for appearing at the foot of the message, for which see Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2 ;) More generally, past consideration is no consideration, i.e. the comment having already been read one cannot thereafter attach conditions to the prior reading.
[For the avoidance of doubt, this comment is making no assessment as to the relative legal chances of the prospective parties in the present case.]
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[For the avoidance of doubt...]
Good indicator that parent is probably a lawyer.
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Precisely! that's what parody and sarcasm do. Make the underlying absurdity more apparent and obvious. These houses are ridiculous. Blogger is protected by the US constitution in calling them ridiculous.
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Consideration [nolo.com] does not have to be monetary. In this case, the consideration provided by the site is the content (IANAL, but this is basic stuff).
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I did. I'm still waiting to find out whether Zillow owns a single one of those photos, though. Seems that they were probably uploaded by real estate agents who either took the photos or hired a photographer - and Zillow probably wouldn't have exclusive ownership and at most a license to use and reuse.
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It had 3-month warranty from its manufacturer.
And you still bought it? That's a huge red flag right there.
Re:Last I checked... (Score:5, Insightful)
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"I Am A Lawyer" doesn't mean shit. It will take all of 10 minutes to find another lawyer who will say exactly the opposite.
Exactly. Any lawyer with half a brain will say IANAL if he's posting to /. .
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How about you just be a little more respectful? An agreement was entered upon. It doesn't matter what the law is as long as there was an agreement. IAAL and this is how it works.
I swear your honour, I had an agreement to commit this crime. Some guy claiming to be a lawyer on the internet says the law doesn't matter if there's an agreement so it's ok, right?
Re: Last I checked... (Score:1)
Nu-uh, it's:
* Do what I say because the law
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An agreement between Zillow and a photographer is non-binding to a third-party blogger.
It's probably not an assignment of copyright either. So Zillow has no standing to sue, as these aren't their images - just images that they've acquired a license to use.
Re:Last I checked... (Score:5, Insightful)
This isn't even parody, which is a somewhat grey area because one man's parody is another man's ripoff.
No, this is criticism, and as such, falls so solidly into the fair use bucket that I'm embarrassed for Zillow's lawyers and seriously question how they could possibly have passed the bar exam if they think the infringement is actionable.
Re:Last I checked... (Score:5, Insightful)
In the USA it is actionable. All you have to do is outspend your opponent, does not matter if something is legal or not.
This is how the US legal system works now.
Re:Last I checked... (Score:5, Funny)
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It's not quite as simple as that, as there are substantial anti-SLAPP statutes in many states which allow people who are sued to get the case dismissed quickly and sometimes get their legal fees paid for it. But it's not the greatest situation, either.
Re:Last I checked... (Score:4, Informative)
The site is down, mission accomplished. High fives all around.
Re:Last I checked... (Score:5, Insightful)
This isn't even parody, which is a somewhat grey area because one man's parody is another man's ripoff.
No, this is criticism, and as such, falls so solidly into the fair use bucket that I'm embarrassed for Zillow's lawyers and seriously question how they could possibly have passed the bar exam if they think the infringement is actionable.
It's a shame that since fair use is actually a part of copyright law, that those who attempt to suppress fair use do not get charged with copyright infringement, and all the penalties it entails.
Re:Last I checked... (Score:5, Interesting)
Actually, in many states, they would. When a company uses a lawsuit to silence its critics (or, in this case, critics of its clients), that is considered malicious(/wrongful) prosecution, a.k.a. a SLAPP (strategic lawsuit against public participation). There's nothing preventing the courts from awarding punitive damages against a company engaging in that behavior. That's why competent legal departments don't play games like this.
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There's nothing preventing the courts from awarding punitive damages against a company engaging in that behavior.
And how often does this actually happen?
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There's nothing preventing the courts from awarding punitive damages against a company engaging in that behavior.
And how often does this actually happen?
Not nearly as often as it should. :-)
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my divorce attorney had a good point for me to ponder...
me:"... but it's the principle"
attorney: "Principles are expensive"
the blogger is probably keenly aware of this. So is Zillow, but not because they fear losing and having to pay everyones' legal fees. Worst case scenario risk they perceive for them is she settles out of court if she pushes back. Which fits onto the "cost of doing business" account for Zillow.
They're hoping the threat of a (SLAPP) lawsuit gets the blogger to "see the error of her ways".
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I think you're underestimating how much it could cost them. Assuming the blogger's lawyer earns his/her keep, he/she would file a SLAPPback suit the moment the case got dismissed. In many states, there are no specific limits to punitive damages in a SLAPPback su
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Oh, I'm not so sure... Zillow will probably have some choice where it files its lawsuit - not in California, but in a state with a listing or few the blogger disparaged that has weak or no anti-SLAPP statutes. Thats how Zillow will get to claim some degree of "damages", and therefore have standing, and will make it more onerous to defend.
I'm not really seeing much of a Stresand effect happening here. Zillow is too diffuse/faceless of an entity. It doesn't have an outsized personality (ala Uber) making the n
All publicity is good publicity (Score:1)
First, Zillow has invoked the Streisand Effect. A previously unknown blogger suddenly gets tons of media attention, and Zillow gets bad press.
“There is only one thing in the world worse than being talked about, and that is not being talked about.”
--Oscar Wilde
There is no upside for Zillow even if they win. I certainly have no intention of visiting their site ..
I doubt you are in the market. For myself, I would feel much more comfortable listing with a company that I know would do its best to stop smarmy little SJWs making fun of my house on tumblr just because it's too large, and has too many interesting architectural
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Political statement (Score:1)
Both parody and political statements are usually protected by fair use and other laws.
But that still doesn't prevent a deep-pocketed prick from dragging you through the court system using well-paid and intense lawyers whose goal is to wear you down.
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Yes, but onus of proof is on the defense.
Which means Zilow is fully within their rights to sue. Then the blogger presents proofs this falls under safe harbor of fair use, and soundly wins the lawsuit, period.
Zilow can't hope to sue and win. But they can still sue and lose, and that alone is often deterrent enough.
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No, this is criticism, and as such, falls so solidly into the fair use bucket that I'm embarrassed for Zillow's lawyers and seriously question how they could possibly have passed the bar exam if they think the infringement is actionable.
I have no problem with her used of photos from Zillow as part of fair use. However, I don't feel comfortable with the way she attempted to make a claim on photos on the site. She did some derivative works on photos, and then posted a copyrighted statement right below them. I am not sure that you can take a copyrighted product, do something with it (derivative work), and then claim a copyright on your derivative work (remember, it should be a fair use)...
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I would argue that superimposed commentary is not really creating a derivative work, but rather a new work that merely references the original; from a technical perspective, yes, you're modifying the file, but that's strictly a matter of technical limitations rather than a matter of the nature of the work itself.
Either way, though, you can have a copyright on annotations. That's fairly well established by case law in cases regarding annotated versions of the legal code. And this appears to just be a set
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My understanding from reading some of Zillow's statements about their intent is that they're doing it because they think not doing so may open them up to suits from the actual copyright owners of the photos (since Zillow's license does not allow them to allow others to use the photos). Essentially it's a proactive due diligence kind of thing. If that's actually the case, they wouldn't mind if it got ruled as fair use, as long as it keeps them off the hook.
Re:Last I checked... (Score:5, Informative)
You're wrong on both counts.
Regarding the copyright issue, had you actually read the C&D notice, you would see that Zillow is claiming copyright infringement, and further falsely claiming that fair use doesn't apply, when it very clearly and obviously does.
Second, the terms of use on their website are immaterial. The publication of content on a website inherently makes that content available to the world. In the absence of a user performing some action that forces the user to agree to the terms and conditions (e.g. signing up for an account), I can't see any plausible way that merely viewing the website would cause that person to be legally bound by those terms in any way, because all rights that would be granted under those supposed terms of use are de facto rights that the user already has. And as best I can tell, Zillow does not require users to sign up for an account to see pictures of houses. So unless the blogger explicitly agreed to the terms of use, the blogger is not bound by them.
Further, even if you somehow could twist the law to somehow interpret those terms of service as binding upon people who did not explicitly agree to them and may not have even read them, in the absence of the copyright claim, Zillow cannot show any actual harm from the use of these specific photos in criticizing the homes in question. In the absence of such actual harm specific to the use of these photographs (harm that would not have occurred if the blogger had gone out and taken his/her own photos of the same houses instead of theirs), Zillow has no standing to sue for a violation of the terms of service in the first place.
In short, Zillow's lawyers might as well have sent this C&D on toilet paper, because it is so full of you-know-what that it stinks from top to bottom.
Oh, but it gets better. There is reason to doubt whether the material in question is even protected by copyright. Ostensibly, a photograph is copyrightable by virtue of the artistic nature of its composition, etc. However, arguably, photographs of a house on a real estate website are typically just whatever shots some real estate agent took, probably more with an eye for showing specific things in the photo, rather than with any attention paid to the composition, angle, lighting, etc. of the photograph itself. Chances are, anybody could walk by and take a very nearly identical photograph with a modicum of effort, which puts it in basically the same category as photographs of artwork, which are generally held to not be protected by copyright.
Further, there's reason to question whether anything on Zillow's website other than their own graphics is actually protected by copyright. It is, after all, just a collection of facts. Nobody would be even asking that question if Zillow's lawyers hadn't stepped in it, but now, thanks to their ineptitude, folks are going to start asking questions, and if they come to the same conclusions that I have, it's open season on all the data contained therein for anyone to use for any reason. In effect, this threat of a lawsuit is likely to backfire in any number of ways, many of which have very serious ramifications for Zillow's ability to remain in business.
Either way, unless I missed something major in my analysis (e.g. the blogger working for a Zillow competitor and using the blog to convince people that Zillow only sells crappy houses), this would appear to be prima facie a SLAPP suit intended to harm a blogger whose criticism of high-end homes has no doubt in their minds reduced the value of those homes, and thus their profits on those sales. This is exactly the sort of criticism that the fair use section of Title 17 was intended to protect. Zillow should be ashamed of themselves, and their lawyers doubly so.
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There is reason to doubt whether the material in question is even protected by copyright. Ostensibly, a photograph is copyrightable by virtue of the artistic nature of its composition,
Something doesn't have to be art to earn a copyright - see college textbooks. It just has to be created by someone with some effort. No matter how bad you are at photography, your composition is slightly more than just a collection of facts (which is not copyrightable).
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Not in the United States. See Feist. Copyright protection has nothing to do with effort and everything to do with whether the work actually involves a meaningful amount of creativity.
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Did you not see that I already said that a "collection of facts" is not copyrightable? Facts are going to be bit-for-bit the same no matter how you copy them. If you take an "identical" photo it will not be the same.
Minimal amount of creativity, not really meaningful amount.
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*shrugs*. The question then becomes whether it is meaningful that there are differences between the photos. If there is no value in using one photo over another essentially identical photo for a given purpose, and if the effort required to create a near-identical reproduction is essentially zero (apart from the cost of physically driving there), then how could someone reasonably find that even a modicum of creativity was involved in its creation?
I'm not saying that it is, in fact, not copyrightable, just
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You're wrong on both counts.
Regarding the copyright issue, had you actually read the C&D notice, you would see that Zillow is claiming copyright infringement, and further falsely claiming that fair use doesn't apply, when it very clearly and obviously does.
Second, the terms of use on their website are immaterial. The publication of content on a website inherently makes that content available to the world. In the absence of a user performing some action that forces the user to agree to the terms and conditions (e.g. signing up for an account), I can't see any plausible way that merely viewing the website would cause that person to be legally bound by those terms in any way, because all rights that would be granted under those supposed terms of use are de facto rights that the user already has. And as best I can tell, Zillow does not require users to sign up for an account to see pictures of houses. So unless the blogger explicitly agreed to the terms of use, the blogger is not bound by them.
Further, even if you somehow could twist the law to somehow interpret those terms of service as binding upon people who did not explicitly agree to them and may not have even read them, in the absence of the copyright claim, Zillow cannot show any actual harm from the use of these specific photos in criticizing the homes in question. In the absence of such actual harm specific to the use of these photographs (harm that would not have occurred if the blogger had gone out and taken his/her own photos of the same houses instead of theirs), Zillow has no standing to sue for a violation of the terms of service in the first place.
In short, Zillow's lawyers might as well have sent this C&D on toilet paper, because it is so full of you-know-what that it stinks from top to bottom.
Oh, but it gets better. There is reason to doubt whether the material in question is even protected by copyright. Ostensibly, a photograph is copyrightable by virtue of the artistic nature of its composition, etc. However, arguably, photographs of a house on a real estate website are typically just whatever shots some real estate agent took, probably more with an eye for showing specific things in the photo, rather than with any attention paid to the composition, angle, lighting, etc. of the photograph itself. Chances are, anybody could walk by and take a very nearly identical photograph with a modicum of effort, which puts it in basically the same category as photographs of artwork, which are generally held to not be protected by copyright.
Further, there's reason to question whether anything on Zillow's website other than their own graphics is actually protected by copyright. It is, after all, just a collection of facts. Nobody would be even asking that question if Zillow's lawyers hadn't stepped in it, but now, thanks to their ineptitude, folks are going to start asking questions, and if they come to the same conclusions that I have, it's open season on all the data contained therein for anyone to use for any reason. In effect, this threat of a lawsuit is likely to backfire in any number of ways, many of which have very serious ramifications for Zillow's ability to remain in business.
Either way, unless I missed something major in my analysis (e.g. the blogger working for a Zillow competitor and using the blog to convince people that Zillow only sells crappy houses), this would appear to be prima facie a SLAPP suit intended to harm a blogger whose criticism of high-end homes has no doubt in their minds reduced the value of those homes, and thus their profits on those sales. This is exactly the sort of criticism that the fair use section of Title 17 was intended to protect. Zillow should be ashamed of themselves, and their lawyers doubly so.
Is Zillow even the origin of the photos on the Zillow website? Here in Houston, they are the same photos you find on HAR.com. HAR.com has listings 3-7 days before Zillow gets them. I assumed that Zillow is just a scraper and aggregation service. They scrape the tax record information from the relevant city/county website. They don't employ their own photographers. I don't see why they would have rights to any property photos anyway.
Re: Last I checked... (Score:2)
Apparently not. So did they issue a DMCA notice, is now the million dollar question, because if they did we might finally be able to get some one for falsely declaring they owned the copyright. Especially given they freely have admitted they don't own the copyrights in a follow up letter.
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There's plenty of precedent that licenses require some sort of conspicuous click through to be binding. Specht v. Netscape [harvard.edu], for example.
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That harm comment was in the context of assuming that the use of the material would qualify as fair use (and thus would not yield any statutory damages). Within that context, if someone wants to somehow obtain a damage award based on a hypothetical breach of contract suit (in the unlikely event that a browsewrap license somehow
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Fair enough. This wasn't really intended to be a legal theory, but rather an attempt to challenge the assumption that it exists, therefore it must be protected.
Additionally, selection of facts is not really what is happening here. Zillow is a glorified content aggregator. The content was almost certainly authored by the person selling the hou
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"commentary" and "criticism" are also criteria for "fair use". this is so obviously both of those and not "parody", but still an open-and-shut case for the blogger. eff will jump on board, zillow will go cower in a corner.
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Having not seen the blog, it's hard for me to make a guess about how well it would be considered parody. TFA quotes "criticism, comment, news reporting, teaching, scholarship, and research."
Re:Last I checked... (Score:5, Informative)
Having not seen the blog, it's hard for me to make a guess about how well it would be considered parody.
You can catch it on archive.org.
It's not parody. It's not vaguely related to parody. Anybody who thinks it's parody desperately needs to bone up on their reading comprehension skills.
It is, however, bona fide commentary and criticism for which the pictures are the obviously essential base element. Very clearly fair use.
https://www.copyright.gov/titl... [copyright.gov]
"the fair use of a copyrighted work [..] for purposes such as criticism, comment [...] is not an infringement of copyright"
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You can catch it on archive.org.
[1] [archive.org]
The Internet Archive and a new robots.txt (Score:3)
Yesterday at least the main page was accessible in the internet archive. This morning,that page is no longer available. So, it looks like the new site just added a restrictive robots.txt? There were three crawls from yesterday in the archive that each had the new site with the black-background main page, so the site was being crawled frequently just now.
Or perhaps the archive itself has been pressured to make the content not accessible?
In any case, it is sad that domains that are let go can have new owners
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The only thing that sounds questionable to me is the parody angle. Why would you choose to defend your work as parody unless you were deliberately imitating a copyrighted work? That's the thing that just doesn't quite mesh with what I would expect in this kind of situation.
Probably because you're not a lawyer (or rather, she's not a lawyer).
You're right, it's not parody. It is, however, review, commentary, and educational material, and protected by Fair Use beyond any doubt.
Fair Use Exists if you can afford it (Score:2)
Fair use is based on a multi-factor test. It is evaluated by a court in the context of a lawsuit.
Even if you win, it will cost you a minimum of around $50K+ to defend if the copyright owner claims it isn't fair use and sues you. It will cost more if you lose.
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OK. (Score:3)
I'd cover 2% of that and I'm sure 50 other people would step up to do the same.
OK. So set up a nonprofit or a coop to to provide fair use defense and/or IP insurance.
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Why do you think this ended up in the news? Guy went to the press hoping someone will fund him.
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Streisand effect... (Score:3, Funny)
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... in 3, 2, 1...
How so?
The original site is down, the site that talks about it doesn't exactly receive 2 million hits a day, and random whining on Slashdot really means very little.
So I'm just wondering where this "Streisand Effect" is going to take place? Facebook? My understanding is Slashdot readers don't use Facebook...
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Slashdot has about 1000 unique visitors a day.
Snowflakes, every one of them.
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Oh no, us international folks already knew lots of rich americans live in disgusting houses. There are plenty of articles about them already, it's just that they say "look at this amazing place" where this guy said "house boner" and whatnot.
I just googled "top ten most expensive houses in la" and found this right at the top of the results: https://la.curbed.com/2017/1/2... [curbed.com]
Sadly, no arrows and slagging off, but you can still marvel at just how gaudy the rich seem to like their houses.
Thoughts on it... (Score:1)
Just leaving what I already wrote on Gizmodo's post here:
Yeeeaaahh.... unfortunately, and specially because of the comments on the matter, I don’t think Wagner has a chance here.
Well, not that I know a whole lot on law, but afaik, fair use only has a chance if she didn’t admit that she was turning a profit on it (directly or indirectly). And even so, photography can be pretty tricky on those matters.... fair use usually won’t stick in cases like this one.
Very rare exceptions for very famou
Re:Thoughts on it... (Score:5, Informative)
Yeeeaaahh.... unfortunately, and specially because of the comments on the matter, I don’t think Wagner has a chance here.
Well, not that I know a whole lot on law, but afaik, fair use only has a chance if she didn’t admit that she was turning a profit on it (directly or indirectly).
Respectfully, that's about as 100% wrong as it's possible to be, and even a moment's thought can provide thousands of counterexamples of entities who claim fair use defense from copyright infringement, and yet make a profit. For example, there's Siskel and Ebert, who used clips from movies in reviewing them, and certainly commercially profited from their show. There's the New York Times Review of Books, which includes snippets, and sells both subscriptions and advertising. There's Gizmodo, there's YouTube Let's Play videos, there's Metacritic, there's Rotten Tomatoes, there's the Onion's AVClub, etc., etc. There are literally thousands and thousands of entities that provide critical commentary and review of creative works, without requiring licenses from the works' authors, and most of them even make a profit.
You're right in one part:
And the thing is... for parodies and satire in fair use, the content infringed must be the direct target of it. Subtle difference, but Wagner wasn’t making satire or parody of the photographers’ work, Zillow’s service, or something in the effect of a criticism of cultural tendency. She was using the work done by others to make... architectural criticism, was it?
That is absolutely true, and the headline is wrong. Wagner's work is not a work of parody. However, it's also absolutely irrelevant, because Wagner's work is a work of architectural criticism. 17 USC 107 codifies Fair Use, and states:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Criticism is expressly included - even moreso than parody, which really falls under commentary. Wagner's posts are also teaching - while undeniably humorous, they are also undeniably educational about various aspects of architecture.
IAAL, and in particular, an IP lawyer, and frankly, I can't see any way in which Zillow has a claim.
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Re:Thoughts on it... (Score:5, Interesting)
Too bad I had mod points yesterday instead of today, I'd upvote you.
Thank you. Honestly, I feel a little bad for Zillow (having used them only a couple months ago in buying my house). They've got a brand new general counsel who only started there a month ago [techdirt.com], and who, as his first public action, proverbially sets fire to their front lawn. Between the fact that Wagner is obviously in the right, legally, and that she's an absolutely perfect defendant - JHU grad student, humorous in exactly the politically right ways, with a great "local girl makes good" backstory - this is a case that everyone from the EFF to Popehat to NYCL to giant law firms with pro bono departments will be slavering over. "Goliath extractive real estate middle-man attacks sweet, funny grad student" is the sort of case you hope they keep appealing all the way to the Supreme Court at every loss.
Re: (Score:3, Insightful)
Usual IANAL... I can see that this would be unlikely to win on a copyright basis. Though I could see one stretch in that the criticism is of the house in the photo - not on the merits of the photo itself.
I think that this is just plain stupid behavior on zillow's part.
One way that this might still be pursued legally is if the TOC for the site - as a contract - includes the term that you will not use images from the site for any / review purpose. As a result, you wouldn't be able to rely on a copyright defen
Re:Thoughts on it... (Score:5, Insightful)
Usual IANAL... I can see that this would be unlikely to win on a copyright basis. Though I could see one stretch in that the criticism is of the house in the photo - not on the merits of the photo itself.
That is an absolutely brilliant and nuanced argument, and the best I've seen on Slashdot or anywhere else on this topic. I think it likely fails because the counterargument is that it can be extended to, say, film, by saying that critics shouldn't be allowed to review movies, because they're criticizing the acting and script, rather than the cinematographic efforts of the camera operator. And yet, that's clearly fair use and inconsistent with 17 USC 107. I'd guess it would come down to something about how photography, in addition to being the efforts to take the picture, also includes the creative effort in choosing the subject.
I think that this is just plain stupid behavior on zillow's part.
One way that this might still be pursued legally is if the TOC for the site - as a contract - includes the term that you will not use images from the site for any / review purpose. As a result, you wouldn't be able to rely on a copyright defense - you'd be trying to fight a contract term (and I loathe TOCs and wish there was more on their validity or invalidity) instead.
Again, a good thought, but these images were all publicly available on the site, without any need to, say, create an account or agree to be bound by the TOS terms. In other words, a contract claim doesn't apply, because the contract was never actually formed. Zillow can say, "if you want to access my website, you agree to be bound by these terms," but if they also allow people to access the website freely, then there's no additional consideration paid by the person they're accusing of breaking the terms, and with no exchange of consideration, there's no contract.
Re: (Score:2)
In other words, they're trying to forestall the fact that copyright law allows it by
Re: (Score:2)
Unfortunately, Zillow aren't going for Wagner under the terms of copyright infringement, they're going for them under the auspices of "Breaking the Terms of Service" of Zillow's website, as copying the photos from their site is explicitly called out as not allowed. However, as it is a "by using this service you agree to..." style EULA, which is shaky legal ground at the best of times, this would be an interesting challenge.
In other words, they're trying to forestall the fact that copyright law allows it by challenging it with contract law instead.
Nah, that's a loser at the outset, Wagner doesn't need (and may not have) an account on Zillow to access the photos - they're publicly accessible, without any need to agree to their ToS. For there to be a contract, there must be a mutual exchange of consideration - you agree to these terms in exchange for access to my site, etc. In this case, at least with regards to publicly accessible photos, there's no exchange - it's just "you agree to these terms, the end." That's an unenforceable contract.
Re: (Score:2)
I'm surprised that no one has mentioned that in the meantime there is a simple solution:
Crowdsource RETAKING the pictures and donate the new pictures and copyright to the blogger.
That way Zillow's original photos are no longer being used.
Re: (Score:2)
Zillow probably didn't even take the photos. They have a irrevocable license and probably a right to sublicense and all that business according to their terms, but they would leave copyright in the hands of the real estate agent or photographer where it belongs.
Re: (Score:1)
Sure, he could rely on fair use, but I presume he doesn't want to spend all his time in court defending his rights.
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Weird Al gets permission though. Sure, he could rely on fair use, but I presume he doesn't want to spend all his time in court defending his rights.
Right for the wrong reason I think. He gets permission out of respect, and not wanting to burn bridges with artists - he has said many times that legally he does not need it, and would be fully in the clear if he didn't ask, but also has a moral compass that includes trying to make bonds with the people whose works he parodies.
Re: (Score:1)
Hilarious Zillow steals photos itself (Score:5, Interesting)
I had my house photos from a Craigslist ad suddenly appear in a zillow listing WITH my copyright notice on them(!). I attempted to contact Zillow with no success. Zillow seems pretty one-sided (aka crooked) if they suddenly find "their" photos valuable while they automatically seek out and siphon photos from other sites without permission.
The site was very good. (Score:4, Informative)
Re: (Score:2)
I don't understand why changing robots.txt on a site makes them disable (I hope not delete!) all past snapshots of the site. This is contrary to the purpose of robots.txt and anyway they are under no obligation to respect it.
It's because "We're the Internet Archive!" isn't an automatic license for unlimited violation of laws regarding copyright, privacy, child porn, etc.
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Implying retroactive application of robots.txt is about this - funny, I didn't know that a squatter taking over a domain automatically gave them the rights to all the past contnet that might have been hosted on the domain at one point or another... *facepalm*
dang (Score:5, Informative)
I love reading mcmansion hell.
For those who haven't seen the site, a typical post consisted of a set of images from a real estate listing with mocking text overlayed. Things like "art from a best western", "how many stuffed animals died to make this couch?", and "color swatch: unholy diaper change". Between these images were pieces of text that sometimes went into more detail about why particular things weren't good architecture.
There were also many posts about architectural history and theory, as well as posts in the 'Mcmansions 101' category, which were equally sassy and very educational.
To me, it looks like her site easily passed the four fair use tests, and skimming through Zillow's terms of use page I didn't see anything that she blatantly violated. afaik, Zillow doesn't actually hold any copyright on most of the images posted to their site. The terms state they do have license to do whatever they want with them, but not that ownership is transferred to them. Not sure if Zillow could enforce copyright on someone else's behalf... I don't know the nuance here, and I would love to hear Zillow's specific reasoning.
They may also just be bluffing, in the hopes that Wagner would rather give up on the site rather than risk an actual lawsuit. Some big companies will file lawsuits not because they can win on merit, but because they can bankrupt the defendant with court costs. It's scary to be on the receiving end of something like that. As much as I would love the site to continue, and see a free speech victory, Wagner may decide it's not worth the effort and risk.
Nub.
Re: (Score:2)
To me, it looks like her site easily passed the four fair use tests
And it need only pass one of them to be considered fair use.
Sad that she didn't fight it; I'd have chipped in a few hundo or more for her defense.
Re: (Score:2)
Zillow doesn't actually hold any copyright on most of the images posted to their site. The terms state they do have license to do whatever they want with them, but not that ownership is transferred to them. Not sure if Zillow could enforce copyright on someone else's behalf..
I really don't think they can. This will get really interesting if one of the photographers sees this story and grants permission for their photos.
W00t! (Score:1)
Add Zillow to streisandeffect.com
It's being restored (Score:2)
Per the official Twitter post she's bringing the site back up. It's just take a long time due to all the photos and links. So it should back tonight.
She's also getting legal counsel to handle this. She makes her living from this blog and referrals she's received so Zillow is threatening her livelihood over fully credited pictures used in critique and parody. Given the publicity they've received for trying to stomp on a student blogger they've probably been advised to quietly drop this and stay far, far away
Re: (Score:2)
No, you're a complete moron who hasn't a clue how Slashdot moderation works.