The blog McMansion Hell (if the link isn’t working, read on to find out why) is dedicated to pointing out the architectural problems with houses commonly called McMansions. Kate Wagner, an architecture critic, started the blog some time ago but recently received some mainstream press coverage in the form of a Washington Post video on her work and prominent inclusion in an article about McMansions. Her blog included pictures of McMansions with annotations of what made the house ugly in her eyes, pointing out the various common flaws inherent to McMansions.
Shortly after the video and article started making the rounds on social media, Zillow sent the following letter to Ms. Wagner:
Ms. Wagner is currently in the process of moving her website from Tumblr, the original host, to a new host which may be why the link isn’t working if you’re reading this shortly after I wrote it. And the good news is that Ms. Wagner was able to obtain legal representation in this fight (the EFF), because this is a fight worth having. While we’ve seen instances of social media platforms wrongly accused of overreaching with their terms, here is an example of a platform wrongly asserting rights that don’t belong to it.
Leaving aside the fair use argument that Ms. Wagner is providing commentary and criticism on these photos, which this Mashable article effectively summarizes, the biggest concern I have is Zillow’s letter itself and how it interprets its own terms of service.
Zillow’s biggest complaint is that Ms. Wagner admits to gathering these images from Zillow, a well-known website and app that provides house listings. But Zillow does not own the copyright to these images–they expressly said so in their letter as they attempt to address any potential fair use argument (although that’s not their issue to address because they don’t own the photos).
Instead, Zillow is alleging that Ms. Wagner’s act of copying photos that are on the Zillow website violated their terms. That’s what the case, if there is a case (and I highly doubt Zillow will continue to pursue this through judgment), is all about and it all depends on some rather broad readings of their own terms.
Here, for example, is one section of Zillow’s terms they claim Ms. Wagner violated:
You agree otherwise not to reproduce, modify, distribute, display or otherwise provide access to, create derivative works from, decompile, disassemble or reverse engineer any portion of the Services.
These clauses are common on social media platforms and refer to the platform itself. The buttons, the interactive features, all of the bits and pieces that make a functional platform are certainly right and proper for a platform to protect. But when you create a platform that hosts content, the content you’re hosting doesn’t become a part of your platform. This concept is what has allowed platforms to benefit from Safe Harbor provisions in copyright laws, for example–they conceptually draw barriers between a platform and the content so the platform doesn’t become an infringer.
It’s somewhat bizarre to see a platform destroy the barrier between content and functionality in one of its arguments. For Zillow to argue that the pictures they host are now part of their services is to ignore the ownership and proper use of the content itself, not to mention opening themselves to much greater exposure. If Zillow uses this clause to assert intellectual property rights in images posted by users, does that mean they are also subject to lawsuits for infringing content posted by their users? What if I copy a famous series of house interiors published in Architectural Digest and post those as a listing on Zillow? Should the rightful owner of those photos sue me or Zillow?
Zillow also references a provision in their terms that prevent the copying of images in their listings. They didn’t cite the specific language, but let me do so:
Except as expressly stated herein and without limitation, you agree that you will not, nor will you permit or encourage any third party to, reproduce, publicly display, or otherwise make accessible on or through any other Web site, application, or service any reviews, ratings, and/or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services.
Wow, that’s a mouthful, right? This is exactly the kind of term that makes most people’s eyes gloss over.
That clause has a lot of prohibitions in there, and yes it does include a prohibition about copying the images available, but there are two kinds of problems with this term. First, it’s a backdoor attempt to assert copyright protection without owning the copyright. Copyright holders get to decide when an image can be copied, not one of their customers. Copyright law allows the owner of the photographer to restrict how an image can be used and here Zillow is attempting to take those rights without informing the copyright holder. Quite to the contrary, when you upload photos to Zillow you give the platform a broad license to use the pictures, but you aren’t assigning to Zillow your rights to enforce or protect that photograph.
So if Zillow doesn’t have the right to prevent this copying in copyright law, does it have some kind of right to restrict how the copying is done on its own website? That’s possible, except that a user like Ms. Wagner who copies a photo from Zillow doesn’t use Zillow to make the copy. She uses her web browser or other software to copy the image that was already transmitted to her computer. Zillow is either taking over the rights of a copyright holder or is attempting to insert themselves into the terms of third party software they didn’t write. Either way, this is a stretch. This clause is designed to prevent someone from scraping Zillow’s website to set up a competing product–and that kind of activity shouldn’t be allowed but it’s a far cry from what Ms. Wagner was doing.
Also, taking this clause as Zillow interprets it against Ms. Wagner, Zillow would also have a potential case against everyone who has ever posted a link to a Zillow listing on Facebook or Twitter or other social media platform, as those links frequently pull associated images. Does Zillow really want to go down that road?
Beyond the technical arguments presented in Zillow’s second reason why Ms. Wagner violated their terms, they also present a third reason that connects with the second. This third reason is that Ms. Wagner’s activity harms Zillow or its suppliers. And yes, they absolutely have that term:
You agree not to use the Services in any way that is unlawful, or harms Zillow Group, its service providers, suppliers or any other user.
But the spirit of Zillow’s argument here isn’t the kind that most courts will find persuasive. The activity of viewing house listings and commenting on them happens, oh, EVERY DAY on Zillow. And off Zillow. Heck, without that kind of activity being permitted then the TV show House Hunters wouldn’t exist at all and I know several people who don’t want to live in a world without House Hunters. Posts liks Ms. Wagner’s blog don’t harm Zillow or the listing themselves. Do they think someone is interested in buying a multi-million dollar house but not if someone posted a snarky comment about it online?
It seems like Zillow was deeply upset that someone was using their website for anything but buying a house, and while I can understand that I can’t exactly sympathize. So long as a social media activity isn’t actually harming you, you leave it alone. Attempting to stifle the conversation only results in the Streisand Effect, as we’re seeing in full effect right now. Ms. Wagner’s blog had some interest among architecture fans and some mainstream interest after the WaPo article.
But that interest is NOTHING like the interest her blog is going to have now that Zillow has sent its nasty gram. If Zillow was truly interested in shutting down this kind of commentary based on their overly broad reading of their own terms, they have horribly miscalculated.