Is Zillow's Claim Against the Blog McMansion Hell Legit, or an Embarrassment?

“There have been no major issues regarding copyright complaints regarding the blog until this moment,” she wrote in a statement via Twitter. “It is my most sincere hope that this issue is resolved as amicably as possible.”

It’s worth digging into Zillow’s claims in the letter, however, to see if there’s any substance to them. The first wrinkle is that Zillow isn’t the copyright holder of these photos. While the Zillow terms of service grants the site a pretty broad license when you upload your photos as part of adding a listing, it’s not an exclusive license, notes Jeff Hermes of the Media Law Resource Center. So they wouldn’t have standing to file a copyright suit, because they don’t have exclusive rights to the images. Those remain with whoever took the photos—which are of course taken for the purposes of marketing and publicity and tend to be fairly broadly used across the internet, often without issue.

The bigger principle at stake is that of fair use.

“The important thing to understand is that copyright law strikes a balance between the rights of creators and the rights of others to use the work which creators produce,” explained Hermes. “In that context, fair use is one of the most important protections that the public has against copyright law creating an excessive restriction on their exercise of their First Amendment rights. Fair use is a doctrine that, among other things, protects the use of copyrighted works for cultural purposes, for the purposes of news reporting and commentary, for the development of new and interesting ideas, while at the same time continuing to protect the right of creators to recognize a return on their work.” While fair use very much depends on the specifics of each case, Hemnes said he thought that “there’s a strong argument” in this particular instance.

“There’s an obvious case for fair use is the way I would put it,” said Joshua Schiller of the firm Boies, Schiller and Flexner, who has litigated fair use cases representing the artist Richard Prince.

The way he sees it, the blog is both satire—“it’s reflecting on what our culture likes”—and also a form of cleverly presented architectural criticism. “What right do they have to censor someone for mocking how in suburban American architecture is cheap and poor and distasteful?” he added.

“This is where fair use is really important, is to protect people like this blogger, who is otherwise being threatened with censorship,” Schiller said—unless she can manage to get good legal help.

Then there’s Zillow’s mention of the Computer Fraud and Abuse Act, which is a hacking statute. It’s generally for offenses like your classic shadowy person forcing their way into somebody’s email and leaking the contents, but can also apply to, say, using your old login to slip somewhere and snag a previous employer’s proprietary information. We reached out to Zillow for an explanation of why they cited the act but they didn’t comment.

Of course, legal arguments are all well and good, but you can have the best case in the world and not have the money to defend yourself.

In Wagner’s case, her appeal to Twitter immediately garnered a number of offers of assistance, and yesterday she announced that the Electronic Freedom Frontier, an organization that often tackles this sort of digital rights question, would be representing her. In a statement, EFF staff attorney Daniel Nazer told Jezebel: “We are representing Kate Wagner and will be sending a detailed response to all of Zillow’s contentions soon. We hope that Zillow comes to appreciate that it made a mistake and withdraws its threat.”

Interesting to note: Zillow has itself been the defendant in a copyright case, after they were sued by real estate photography company VHT, who claimed they didn’t have proper permissions for using 28,000 photos on Zillow’s home design subsite Zillow Digs. Initially ordered to pay $8.2 million in damages, the Chicago Tribune reported June 23 that a federal judge cut the bill down to just under $4.1 million. According to Law360,

Zillow had also argued the submission of the photos by the real estate agents gave it an implied license to post them on the Digs site and advanced a fair use defense, arguing it was allowed to copy the photos from the main to the Digs site.

Zillow did provide the following statement to Jezebel this morning, which is rather gentler in its wording than the original letter:

Zillow has a legal obligation to honor 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.

Meanwhile Fortune notes that the case that birthed the term “Streisand Effect,” shorthand for attempting to quiet something via lawyering that results in infinitely more bad publicity thanks to the way the internet works, was originally about photographs of a mansion.