Likely copyright over the photographs. Realistically, it's fair use since it's transformative and used for critique. Unfortunately, fair use laws only apply in the US if you have lots of lawyer money, so they don't really matter for normal folks.
I wonder if Zillow even has standing to sue over copyright because, as far as I can tell, Zillow gains the right to use agents' photos but there is no copyright transfer.
Maybe their agreement allows them to act as an "enforcement arm" of the agents?
What I find interesting is the choice to threatening them rather than just sending a DMCA takedown to Tumblr. Then again, the people (bots?) sending these emails may have no idea where it's hosted.
Zillow is almost certainly not granted an exclusive license. Listing photos are posted on many sites simultaneously.
For example, this is the first listing I clicked on in Zillow. Immediately found the same listing on Redfin with the same photo watermarked by a 3rd party.
I'm sure it's on various other MLS sites with photos as well. The real copyright holder is most likely the listing agent or possibly even the photographer, and chances are they have no desire to send C&D notices because "any publicity is good publicity."
Many states have SLAPP laws that allow frivolous claims like this to be quickly shot down. It still costs money to defend against them, but it's a lot cheaper and the victim can win it back. Unfortunately, there's no Federal equivalent, so all it takes to get around it would be to sue in Federal court. A Federal SLAPP law would really help.
Why wouldn't a judge throw this out as spurious if it clearly falls under fair use? (procedural question; not asserting that it does or does not meet fair use in this case).
While people here are making an argument that this is fair use, it's not quite so simple. You have to pay money to argue in front of a judge, and unless no counter-argument is provided, summary judgement is far from an inevitability.
> Why wouldn't a judge throw this out as spurious if it clearly falls under fair use?
If there is no colorable argument against fair use, then it would presumably be thrown out at summary judgment on a motion by the defendant.
But fair use analysis is rarely cut-and-dried, unless the fact pattern and context very closely mirrors something that has been previously litigated, and typically involves disputed questions of fact regarding impact, which would call for a trial.
The goal of the plaintiff's lawyer is to make dozens and dozens of claims, so that hopefully one of them sticks while the others are thrown out. This is the common practice.
I'm curious how just using a photo makes it "transformative". Those photos look straight up taken from one site and used on the next.
(I ask as someones who's flickr photos ended up on the front page of a local paper... and was mildly annoyed, but it was promoting an event I work on.. had they just asked....)
News organizations and documentaries pay lots of money to clear and use old stock news photos.
For one, she frequently marks up the photos with arrows and text, most of which is uniquely humorous while also being educational. No one would mistake her images for a promotional piece, or anything other than satire, comedy, and education.
Her use does not compete with the copyright holder's use -- no one is going to buy her house or fail to license the photos because of the blog. (They may decide not to buy the McMansion because of the blog, but trying to use copyright to silence critiques of a house won't fly in court).
That argument does not apply to your photo, or stock photos from an archive. The distinction matters in the eyes of the law.
Does "used in critique" apply? If the critique was of the photos themselves that would seem to be in the spirit, but the photos are just lifted in order to critique the house.
There's still a few hits going to Tumblr and fonts.gstatic.com , but all the actual content is safely inside IPFS and being served from in there. I'll let someone else rip the external calls out.
That CFAA threat is absolutely disgusting. Seriously, what is wrong with Zillow that they think this response is even remotely okay? When you combine that threat with a response they gave the Verge, this is an absolutely chilling example of corporate malfeasance:
“Zillow has a legal obligation to honor the agreements we make with our listing providers about how photos can be used,” Zillow tells The Verge in a statement. “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.”
You hope she can continue her work....from a fucking jail cell?
At the same time a $600M company would be worried about bad publicity at least somewhat.
So there are many ways of fighting them. Maybe not a direct "let's see who can outspend who over a lawsuit" but something along the lines of "Are you sure you want your name on Twitter as bullying a fun and popular blogger?" kinda fight.
Most of the photos McMansion Hell posts are copyrighted by someone else. That's why most of their posts have this disclaimer in the middle:
Copyright Disclaimer: All photographs in this post are from real estate aggregate Redfin.com and are used in this post for the purposes of education, satire, and parody, consistent with 17 USC §107.
Zillow might simply be suing for infringement, in which case the Fair Use would have to hold up in court (as it is an affirmative defense)
Agreed. Looking at the wikipedia definition of fair use, it's hard to say that this doesn't apply. But zillow is not a very nice company imo so I am unsurprised.
> N.B. is an abbreviation for the Latin nota bene, which means "note well." It is normally used at the beginning of a sentence in order to inform the reader that the following words are of great importance.
It seems to save a lot of hassle to just say "Note:" instead, rather than an obscure acronym that already has a non-obscure, short equivalent.
Reminds me of a forum I was on, where people would edit posts and preface the edit with "ETA:" (edited to add). But virtually every time someone had to ask what it meant, and eventually people started using "Edit:".
Perhaps you are right - my 'problem' is that my parents are of an age were they studied Latin at High School, and as a result some of their education rubbed off on me; I no longer remember where I learned 'NB' (and other Latin miscellanea). Try living with parents who liked making witty and snarky comments in Latin about one and one's brother when one was trying to survive life as a nerdy teenager! :)
It's more like a class signifier. People who have certain educational backgrounds, or read a lot of certain types of writing, are more likely to use it.
Everyone in the UK would know what it means. I doubt it is particularly common in legal documents. Probably something to do with having a decent proportion (>0.001%) of the population educated in the classics...
