Tag Archives: Fair Use

The Tyranny Of Terms: How Zillow Is Overreaching

“Never go full Corinthian.”

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.

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Of Course People Understand Trademarks

tmYesterday, Hank Green (@hankgreen) of YouTube vlogbrothers fame, published a post on Medium named The Trouble with Trademarks.  I think it needed to be addressed so I did so in a Hank Green-style video (except it’s too long–I am a lawyer after all).  Please enjoy.  Or don’t.  Totally up to you.

 

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Is BuzzFeed Worse Than Pinterest When It Comes To Copyright?

“We’re thinking of changing our motto to ‘Copy This!'”

BuzzFeed may be the most illegal site you’ve ever visited.  I say may be because I don’t know your full browsing history–I just work for a technology company, I’m no NSA Analyst.  But given that 40 million people visit the site a month, odds are likely that you’ve been to the site, seen an article shared from the site in your social media feeds, or possibly shared an article from the wildly popular site.  A recently filed lawsuit threatens the BuzzFeed business model and raises the question of whether BuzzFeed is the worst copyright infringer in social media today–potentially outstripping the issues that have been raised for Pinterest.

The lawsuit was filed by photographer Kai Eiselein, a 30+ year photographer who has worked as a photojournalist and other photography positions.  His photo, Contact, was copied by BuzzFeed for one of their lists The 30 Funniest Header Faces (which, if you visit, is now the 29 Funniest Header Faces…more on that later).  The lawsuit points out that BuzzFeed copied the image despite the photograph being protected on Flickr, where it was originally posted.  Typically, if you want to save an image while browsing a website you can right-click on an image and choose an option to save the image.  On Flickr, this functionality can be disabled–if you right-click on Eiselein’s image then a copyright notice pops up telling you that all rights are reserved.  The lawsuit also points out that BuzzFeed intentionally ignores not just pop-up notices like Flickr but also posts several images that contain watermarks (several are still present in the list).  Eiselein complained to BuzzFeed and they later removed the image and changed the name of the list but this wasn’t before dozens of other sites had copied the list.

Eiselein has sued not only for direct infringement by BuzzFeed but also for contributory infringement–knowing inducing another person to violate copyright protections.  This is an interesting angle on an otherwise typical copyright infringement lawsuit since BuzzFeed’s entire business model is built upon the idea of creating stories that will be shared by readers.  For BuzzFeed to succeed, it needs readers to copy and share its information.  This triggers a tricky area of law that the Supreme Court has weighed in on two significant cases.

In 1984, the Supreme Court decided Sony v. Universal Studios (link is to the syllabus of the case rather than the full text, because I’m just that nice).  Sony was accused of being liable for copyright infringement for uses of its VCRs (called VTRs by the Court back then, how quaint).  This led the Supreme Court to set a rule that distributing a product that was capable of substantial non-infringing use would not make the equipment manufacturer liable if users also used that device for infringement.  Since time-shifting (fancy term for recording a show that you watch later) was considered non-infringing then Sony was not liable for merely distributing VCRs.  This rule was used for decades by courts over newer technologies that might enable other intellectual property infringement but also had substantial non-infringing uses.

By the time the 21st century landed, technology had gone through significant changes and the Court was again asked to consider if a technology provider could be liable for infringement by its users in the 2005 MGM v. Grokster case (again, syllabus, you’re welcome).  Grokster was one of the early peer-to-peer file sharing services and evidence showed that they distributed their software with the suggestion that users distribute copyrighted music and movies via their tool.  The Court said that the Sony rule of protecting a technology that has substantial non-infringing uses does not require the law to ignore the intentional infringement and inducement by a technology provider. Following this unanimous ruling, Grokster ceased operations within months.

The issue here is whether BuzzFeed (and similar websites) is closer to Grokster or a VCR.  Several factors seem to go against BuzzFeed.  First is their intentional ignoring of copyright protections, whether watermark or popup notices informing users that the photographer doesn’t want their image placed everywhere possible.  Second is that the safest defense from these claims, the Safe Harbor provisions of the Digital Millennium Copyright Act, don’t apply because this was not an unknown BuzzFeed user posting the infringing content but BuzzFeed itself in the form of one of their paid staff writers.  Third is BuzzFeed’s founder.

Jonah Peretti already had a history with social media and viral content before founding BuzzFeed.  Arguably his most well-known viral content encounter was when he tried to order a pair of customized Nike shoes with the word SWEATSHOP stitched in the side.  The resulting email exchange with Nike went viral before going viral was even a term.  Peretti’s experiences with viral content and research at the famous MIT Media Lab influenced his outlook on media.  He has said that he is more concerned with information being widely distributed rather than it being high-quality:  “The biggest misconception people have is that quality is all that matters.  The truth is that quality helps, but there’s a ton of high-quality things that don’t go anywhere.”  This tone from the top may influence BuzzFeed’s business practices to their detriment.

Peretti also believes that BuzzFeed’s articles are protected by Fair Use.  That’s a very difficult case to make.  As any copyright lawyer will tell you, the moment that you’re hanging your hat on Fair Use, a notoriously fuzzy and difficult defense, you’re signing up to a lot of legal headaches.  In this case, Peretti believes that BuzzFeed articles are transformative and so they are protected.  That’s not exactly a sound legal theory for two huge reasons.

First, Fair Use is determined by analyzing four factors.  Yes, the first factor (purpose and character of the work) does look at whether the resulting work is transformative, but Fair Use requires analysis of all four factors.  It isn’t a legal sudden death where the first time you win a factor then it’s game over in your favor.  BuzzFeed would need to win the analysis on the whole, and given then other three factors I think it’s highly unlikely to do so.

Second, I’m not so sure BuzzFeed is transforming anything.  Copying a bunch of photos into a list does require some creative effort, but at best it is curation and not original authorship.  I’m not saying it’s easy, but it isn’t transformative to the extent the Fair Use exemption will protect its efforts.

To this end, BuzzFeed may be worse than Pinterest when it comes to copyright–they are infringing rights directly and ignoring intentional attempts by authors to prevent copying.  Whether this lawsuit is successful in changing BuzzFeed’s (or similar sites’) practices remains to be seen–a lot can happen in a lawsuit.  But rest assured that even if BuzzFeed loses the case I’m sure we’ll see 27 puppies reacting to the verdict within minutes.

 

 

 

 

 

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Filed under BuzzFeed, CopyFUD, Copyright, Fair Use, Pinterest, Social Content, Social Platforms

Top 4 Legal Myths about AP v. Meltwater

Just as the baconicorn is, so far, a mythical creature, there are a bunch of myths flying around about AP v. Meltwater. Sadly, those myths have 100% less bacon.

Translating legal opinions as they apply to social media is a difficult task.  It’s even harder when the opinion involves fair use.  Because even though fair use is something almost everyone has heard of, nobody really knows exactly how it works.  This is true for lawyers and courts as well.  Although there’s a well-known four-factor test, the factors aren’t easy and they aren’t designed to be simple.  One of the major cases where the Supreme Court spoke about these factors even stated that these are intended to be difficult questions to answer.

Last week the Southern District of New York (a very active and highly influential circuit when it comes to copyright questions) rendered summary judgment in the Associated Press’ lawsuit against Meltwater.  Meltwater is a site that clips thousands of news articles and distributes “summaries” (I hate putting words in quotes but necessary here as the summary could be just the first sentence of the article or up to 60% or more of the original article) of articles that match search queries set up by paying customers.

I’m not going to summarize the case for you here, sorry.  It’s far too complicated for a quick blog post.  Instead I just wanted to address a lot of  myths getting circulation right now around this case.

Myth 1: This case applies to you

Unless you are the Associated Press or Meltwater, except in rare circumstances, this case probably does not apply to you.  Yes, it involves a company that copied stories from the AP and if you are a social media practitioner you may have copied quotes from an article with or without links.  But what Meltwater did was several orders of magnitude different from a typical blogger or social media practitioner.  Their service pulled thousands of stories and used an automated program to copy relevant information and present it to people who had related search queries.  Unless you have a business engaged in this kind of systemic commercial copying, odds are that there are enough differences in what you do to this case that you don’t have an immediate need to worry (but if you do have a similar business, I’m guessing you’re talking with your lawyer anyway just to be safe).

Myth 2: This dispute is over

As much influence as the Southern District of New York has when it comes to copyright cases, this case is far from over.  It might be overturned.  It might be upheld for completely different reasons than the ones articulated by the court.  It might be upheld without comment, affirming the entire analysis already done.  It will be a few years before we know for sure.

Myth 3: The decision has a ton of problems

Techdirt wrote an article that claimed the opinion in this case had a ton of problems.  They even put the word ton in italics to really show the legal impact.  But their analysis was flawed and missed the point on several aspects.  I’m not even linking it here because I don’t want to encourage the spreading of bad info, but if you have read their take on the case just know that it was a total swing and a miss.  The court’s opinion may very well be overturned, that can happen with almost any case.  But Techdirt didn’t understand the legal analysis done for the fair use factors (for example, he confuses the concept of innovation with the first fair use factor of transformation–innovation in technology happens all the time, even by automating previously manual tasks, while transformation in fair use is a different and not necessarily related analysis).

Myth 4: This is a clean win for the AP

This myth came from a decent summary over at PaidContent as an entire section about AP’s victory at summary judgment.  Yes, the AP did win this phase of the case but any case that involves fair use isn’t a clean win.  It was a messy win filled with extensive electronic discovery, investigating five independent defenses put forth by the defendant, and enough billable hours to make at least a couple of law firms’ years.  There’s even some discussion in the 91 page opinion of the fight between the two sides over producing evidence of Meltwater’s click-through rate.  Any attorney with litigation experience will read those passages and grimace at the probable pain that both sides went through over several months to resolve that issue (if it was ever resolved).  There is a victory here, so far, but that isn’t clean.  It might not even be repeatable.

There might be more myths to come, but for now those are the biggest ones I’m seeing.

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