McMansion Hell (previously at BB) was a hilarious, incisive and explosively popular blog detailing and mocking America’s dreadful suburban architecture. Zillow is a real estate site that exists to profit from it. Zillow used a grossly bogus legal threat to get McMansion Hell shut down, and everyone within sniffing distance of the law or media freedom is mad.
Zillow claims that McMansion Hell was ‘violating the Computer Fraud and Abuse Act (CFAA) and state laws prohibiting “interference with Zillow’s business expectations and interests”‘, a claim augmented by a curious theory of copyright whereby Zillow has “particular rights” to images it doesn’t own.
…The cease and desist letter was not a response to the type of content or commentary that [Kate] Wagner was offering, she said. Heffter went on to explain that Zillow does not own the photos it posts on its site and is not legally allowed to let others use them.
Zillow’s not even the copyright proprietor of the images it claims to “enforce”, but even if it was, a “fair use” defense would surely prevail. McMansion Hell literally obscures the images with editorial commentary!
The threat appears to be retaliation following Wagner’s featuring in a Washington Post story that turned a sharp eye on the trend back to cheaply-constructed houses slathered in subprime financing, counterposing her criticism against a battery of smarmily self-promotional quotes from Zillow spokespeople.
Legal experts are not impressed.
“Zillow’s suggestion that it’s a CFAA violation to take pictures from their public website is very weak,” Orin Kerr, a law professor at George Washington University, said in an email. “That’s probably why they made it only in passing.”
Jeff Becker, an entertainment and intellectual property lawyer, said that fair use arguments rely on whether or not a piece of media is transformative or offers commentary on the original work — in this case real estate photos. He said the “satire-parody issue may be present” in the case of McMansion Hell, and that the blog “very well could fall within fair use.”
Zillow’s argument “would be a very hard case to win in court,” Becker added.