Zillow Backs Down After Sending Cease and Desist Letter to Satirical Real Estate Blog McMansion Hell

Zillow made headlines this week when it sent a threatening cease and desist letter to the creator of McMansionHell.com, a viral architecture blog dedicated to poking fun at the poorly designed, oversized American homes that rose to popularity in the 1990s well into the late 2000s. Kate Wagner, a 23 year-old grad student studying architectural acoustics, and the author of the website, overlays hilarious snippets of text over images of “McMansions” grabbed from various online real estate listings. Beneath each post is a caption stating that all photographs used are “for the purposes of education, satire, and parody consistent with 17 USC §107.” A quick look through Wagner’s posts and it becomes clear that her posts are consistent with this claim. Her work is a textbook example of the four factors used to determine fair use by U.S. copyright law.

This however did not stop Zillow from sending her a threatening letter on June 26th, demanding that she “cease all access to and use of the Zillow Site,” and “delete all Images and derivates thereof.” They gave her three days to comply. Wagner was understandably terrified and took to Twitter asking for assistance: “Somebody help me, Zillow is threatening to sue me.” In another post she wrote “this blog is my entire livelihood, if it goes, I lose absolutely everything.” After a series of tweets, her fans were reasonably concerned. Within a day, the Electronic Frontier Foundation (EFF) volunteered to step up and represent McMansion Hell moving forward. Wagner was assured that Zillow’s alleged claims of copyright infringement were unfounded, as this was simply a weak attempt to get her to take down the images which criticized many of the website’s listings.

The main arguments put forth by Zillow were:

(1) McMansion Hell was violating Zillow’s Terms of Use, which specifically prohibits “(i) reproducing images from the Zillow site… (ii) modifying those images… (iii) and displaying such modified images.”

(2) Wagner’s claim that her work qualifies as fair use is not justified. Specifically referring to the four factors, Zillow asserts “none support an argument that Your use is fair use.”

(3) Wagner’s activities “may violate the federal Computer Fraud and Abuse Act 18 U.S.C. § 1030, and state laws prohibiting fraud and interference with Zillow's business expectations and interests.”

What played out over the next few days was an amusing exchange of letters between Zillow and the EFF, beginning with a defiant response written on behalf of Wagner, in which EFF Staff Attorney Daniel K. Nazer asserted that Zillow’s legal complaints are in fact “baseless.” The EFF's response to Zillow can be summarized as follows:

Firstly, the accusation that McMansion Hell has somehow violated Zillow’s Terms of Use is irrelevant since Wagner never agreed to them, and therefore is not bound by them. Even if she were bound by them, they would be unenforceable under the protections of the Consumer Review Fairness Act of 2016 (CRFA), which according to the EFF, “includes prohibiting any provision of Zillow’s Terms of Use that would purport to waive Wagner’s fair use rights in this circumstance… which expressly includes a “pictorial review.” This is all made even more absurd by the fact that paragraph 14 of Zillow’s Terms of Use asserts their “right to change these Terms of Use at any time in its sole discretion” - the very terms Wagner never agreed to in the first place.

Secondly, Zillow claims that her work does not meet any of the four factors which determine fair use, but does not explain why that is the case. “Wagner transforms the photographs with her critical annotation and uses the photographs for a radically different purpose than Zillow or the original photographers,” writes Nazer. The letter also points out that there is no market harm, as McMansion Hell is clearly not a competitor of Zillow (nor would anyone somehow confuse the two). The only conceivable “harm” being done here is by Wagner commenting on the architectural flaws in certain h