Zillow Sends Totally Bullshit Legal Threat To McMansion Hell
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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.Zillow's Terms of Use (the "Terms") specifically prohibit reproducing, modifying, distributing, or otherwise creating derivative works from any portion of the Zillow Site. The Terms further prohibit reproduction of any underlying images from real estate listings on the Zillow Site, as well as any use of the Zillow Site that could harm Zillow or its suppliers.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.
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posted at: 12:00am on 27-Jun-2017
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NJ Mayor Can't Stop Streisanding Himself After Being On The Receiving End Of The Crying Jordan Meme
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Of all the wonderful gifts the internet has bestowed upon humanity, there is perhaps none more precious to me than the now famous Crying Jordan meme. After Michael Jordan's tearful Hall of Fame induction speech, an image of him in tears took on the secondary purpose of being photoshopped onto anyone the internet wanted to portray as being sad or upset about pretty much anything. The creativity of some of the memes is nearly unmatched, leading to it becoming so popular that then President Obama brought it up when giving Jordan the Presidential Medal of Freedom. In other words, as far as internet memes go, the crying Jordan meme is nearly as prolific and celebrated as the basketball career of Jordan itself.Which is why it's somewhat odd that the loser of a local township committee election went completely bonkers when he himself got "crying Jordan'd."Cinnaminson (N.J.) mayor Anthony Minniti lost his bid for re-election to the township committee Tuesday when a retired police sergeant defeated him in the Republican primary. When a Facebook user Crying Jordan’d Minniti’s campaign flyer and posted the image to the Cinnaminson Friends & Neighbors page, well, the mayor got real mad:“Obviously, I’m disgusted by this post, but sadly not surprised,” Minniti said about what he described as the “inflammatory, outrageous rhetoric” of the Facebook page. “It was only a matter of time before someone took this moblike behavior too far, and this is definitely too far,” he said. “Hate has no place in Cinnaminson, and this needs to be treated with the seriousness it warrants.” In other communications, Minniti has suggested not just that the meme is an output of some demonic hate-engine, but that it's racist. Why? Because the Jordan meme is barely known in common circles and its true purpose is to put white people in "blackface." Yeah, seriously.Portraying any white person in blackface is racist and unacceptable. There’s no question about that,” he said. “If this was such a well-known meme and this is something everybody knows about, why did the Facebook administrator pull it down? It was flagged as racist by others. It was taken down because it was racist, or deemed racist by the administrator. We'll do the easy part of this first: the crying Jordan meme is most certainly not racist. Jordan himself has noticed the meme and has reportedly received it with somewhere between a shrug and mild annoyance. Also, I'm fairly certain our first ever black President would not toss around jokes about a racist meme while celebrating an African American award recipient. In addition to all of that: shut up, it's not racist. It's just not.But it's worth noting that this is a story about a person who lost a mayoral election at the primary stage in a small town in New Jersey. I'm not certain how many people would be aware of the story at all, nor would they have seen the following meme in question, had Minniti not chosen to throw his shit fit about it all. But I'm fairly certain that answer could be stated as "less", with so much media coverage over Minniti Streisanding this into the mainstream.Anger about being the subject of a meme that then makes that meme go viral is not anger well spent.
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posted at: 12:00am on 27-Jun-2017
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