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

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]