EFF trounces Zillow, McMansion Hell will return from copyfraud purgatory

Update: Zillow has dropped all its absurd copyright claims after hearing from EFF and McMansion Hell is coming back!

The Electronic Frontier Foundation has published its letter to Zillow, explaining in eye-watering detail how wrong the company was to threaten the McMansion Hell blog over its use of realtors' glam-shots of shitty houses.

Given Zillow's business model, its goods and services include its listings, real estate photographs, and the underlying properties, all of which are covered by McMansion Hell's reviews. Wagner's work and blog therefore constitutes, among other things, an assessment of the goods offered via the Zillow website and thus falls squarely within the protections of the CRFA. This protection includes prohibiting any provision of Zillow's Terms of Use that would purport to waive Wagner's fair use rights in this circumstance, given the restriction that would place on Wagner's ability to engage in a covered communication (which expressly includes a "pictorial review"). Zillow's attempt to enforce its Terms of Use to prohibit Wagner's activities is unlawful. See id. at (c).

Should Zillow seek to enforce its Terms of Use against Wagner in violation of the CRFA, Wagner will consider all possible remedies available to her including, without limitation, a counterclaim against Zillow for violation of Washington's Consumer Protection Act, RCW 19.86.020 et seq., and a request for an award of attorneys' fees and costs.

In our telephone conversation, you suggested that Zillow's agreements with third parties require it to demand that our client remove images from her blog. Of course, our client is not a party to any of those agreements and is not bound by them. Further, Zillow does not have any viable state law claims, such as interference with contract or business expectancies. Any such claim would be founded on Wagner's commentary and criticism and would be barred by the First Amendment. See, e.g., Jefferson Cty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 857 (10th Cir. 1999) (state law claim for interference with contract cannot be based on protected speech); SCO Grp., Inc. v. Novell, Inc., 692 F. Supp. 2d 1287, 1290 (D. Utah 2010); Search King Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 WL 21464568, at *4 (W.D. Okla. May 27, 2003); Eddy's Toyota of Wichita, Inc. v. Kmart Corp., 945 F. Supp. 220, 224 (D. Kan. 1996); cf., Aitken v. Reed, 89 Wn. App. 474, 491, 949 P.2d 441, 449 (1998) ("Where defamation and tortious interference with contract claims arise out of the same conduct, both claims are subject to the defense of privilege."). Zillow's agreements with third parties do not trump Wagner's right to free expression.

McMansion Hell Responds to Zillow's Unfounded Legal Claims [Daniel Nazer/EFF]

EFF letter to Zillow]