McMansion Hell Back Online After Zillow Withdraws Threats

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By Anandashankar Mazumdar

Online real estate listing company Zillow Group Inc. has decided not to pursue copyright related claims against McMansion Hell, an architectural criticism blog.

The blog is back online after owner Kate Wagner took it down following a cease-and-desist letter from Zillow over her use of photos from the real estate website. Zillow issued a statement June 29, saying that after discussions with the Electronic Frontier Foundation, which agreed to represent Wagner, the company would not sue.

Three days earlier, Wagner, a Johns Hopkins University graduate student, posted a plea for help on her website after receiving a letter from Zillow demanding she take down any post that used a picture from their website. Wagner posts pictures of houses along with criticisms of their architectural features. The posts are illustrated with photographs and markings by Wagner highlighting what she describes as inferior design choices.

The “About” section of the McMansions Hell blog states: “If you love to hate the ugly houses that became ubiquitous before (and after) the bubble burst you’ve come to the right place. Be sure to check out McMansions 101! “

Daniel Nazer of EFF, which responded to Wagner’s plea for legal representation, said he hadn’t heard directly from Zillow but was forwarded a statement that Zillow gave to the media saying they wouldn’t pursue action. He said that for future posts, Wagner will no longer use images from Zillow.com.

Copyright, Other Claims Threatened

Federal copyright law’s fair use doctrine allows for the unauthorized copying of creative works for some types of uses, such as criticism, commentary, and educational uses. Another law passed last year protects consumers’ rights to post reviews of businesses. Photographers in general, however, have expressed frustration at the difficulty and expense of policing infringing uses of their works.

Nazer told Bloomberg BNA that not only did Wagner have a strong claim for fair use, but also said Zillow had admitted it didn’t own the copyright interest of the photographs, making any copyright claim unlikely. He said that any claim based on the terms of use would be unenforceable under the Consumer Review Fairness Act of 2016, which protects online criticism.

In its original letter, Zillow said that Wagner’s use of images from its website violated Zillow.com’s terms of service and may have violated the Computer Fraud and Abuse Act, a law that prohibits unauthorized access to computer systems.

Zillow said that it posts its images—whose copyrights are held by agents and others who submit them to Zillow—subject to restrictions against re-use, and that it was obligated to defend its affiliates’ copyrights.

“We acted out of an abundance of caution to protect our partners—the agents and brokers who entrust us to display photos of their clients’ homes,” Zillow said in its statement.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at AMazumdar@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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