Earlier this week, the real estate site Zillow sent a cease-and-desist letter to the writer behind McMansion Hell, a blog that makes fun of ugly suburban houses. McMansion Hell’s creator, Kate Wagner, uses Zillow photos in her posts — which Zillow claims is a violation of their terms of service. However, Wagner’s lawyers at the Electronic Frontier Foundation say that her blog is a “classic example of fair use” and that Zillow needs to back off.
Photo: Getty
In a lengthy letter to Zillow, the EFF said Zillow has no legal standing to threaten McMansion Hell. “Our client has no obligation to, and thus will not, comply with Zillow’s demands. Zillow’s legal threats are not supported and plainly seek to interfere with protected speech,” wrote Daniel Nazer, a staff attorney and Mark Cuban Chair to Eliminate Stupid Patents at the EFF.
Wagner, who launched the site in July 2016, adds commentary to promotional shots of tacky homes. A garage becomes “ye olde carhole”; a tub is simply “you” while a shower gets labelled “the plumbing fixture she tells you not to worry about”. After receiving the cease-and-desist, Wagner told the Verge that she would have to shut down her blog — which is her primary source of income — if Zillow pursued the issue.
EFF says that Wagner’s blog is protected under the US Consumer Review Fairness Act, a law passed by Congress last year that blocks companies from forbidding reviews as part of their terms of service.
“We think that applies here,” Nazer told Gizmodo. “If Kate is writing criticism of listings, Zillow can’t prohibit that. They can’t prohibit you criticising their listings through terms of use.”
Zillow claims that, in addition to violating its terms of service, Wagner may also be violating copyright law and the Computer Fraud and Abuse Act, a controversial anti-hacking statute.
Legal experts told Jezebel that Zillow isn’t likely to succeed on those claims, either — after all, Zillow doesn’t hold the copyright to most of the images it posts. EFF echoed the sentiment, saying Zillow’s letter to Wagner is filled with “highly dubious legal claims”.
Zillow told Jezebel that it’s required to protect the copyright of the photographers who provide images. “Zillow has a legal obligation to honour the agreements we make with our listing providers about how photos can be used. We are asking this blogger to take down the photos that are protected by copyright rules, but we did not demand she shut down her blog and hope she can find a way to continue her work,” a Zillow spokesperson told Jezebel.
Wagner took her blog offline when she received the cease-and-desist letter but she’s officially relaunching it today.
“It does appear to be standing by its demand that she remove all images sourced from Zillow’s website. Zillow has no basis for such a demand and our client will not be removing any previous posts,” Nazer wrote in a post on EFF’s site. However, Nazer said that Wagner would not use pictures from Zillow in the future.
If Zillow wants to pursue its case, the company would have to sue Wagner. “The letter was foolish enough. Filing suit would be the height of foolishness. We hope they see sense,” Nazer told Gizmodo.
Zillow has since decided to back down. The real estate site sent Gizmodo the following update:
We have decided not to pursue any legal action against Kate Wagner and McMansion Hell. We’ve had a lot of conversations about this, including with attorneys from the EFF, whose advocacy and work we respect. EFF has stated that McMansion Hell won’t use photos from Zillow moving forward.
It was never our intent for McMansion Hell to shut down, or for this to appear as an attack on Kate’s freedom of expression. We acted out of an abundance of caution to protect our partners — the agents and brokers who entrust us to display photos of their clients’ homes.