Zillow picked a fight with a one-woman blog and lost

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Zillow is backing down from the legal threats it’s issued against a blogger known for her searing critiques of McMansions – the large, extravagant houses that everyone loves to hate.

The real estate company said Thursday that it had decided not to pursue legal action over the photographs used by Kate Wagner, author of the blog McMansionHell.com, after Wagner sent a letter of her own on Thursday challenging Zillow’s claims.

Through the Electronic Frontier Foundation, a legal advocacy group, Wagner threatened Zillow with a potential counter-suit should the company continue accusing her of violating federal anti-hacking laws and the website’s terms of service.

“We’ve had a lot of conversations about this, including with attorneys from the EFF, whose advocacy and work we respect,” Zillow said in a statement, barely an hour after Wagner sent her letter. “EFF has stated that McMansion Hell won’t use photos from Zillow moving forward.”

The photos at issue – showing the exterior and interior of massive, suburban homes – were used by Wagner’s blog to skewer the celebration of wealth and conspicuous consumption that such developments have come to reflect.

Wagner’s blog points out the frills and flamboyant details that can often be found on McMansions, so-called because of their cookie-cutter appearance. But, cultural critiques aside, Zillow said in its initial letter that Wagner had no permission to use the images, which were originally hosted on Zillow’s site. Zillow had third-party contracts that forbade the use of the photos, it said.

The company also implied that in using the photos, Wagner risked violating the Computer Fraud and Abuse Act. Invoking the federal anti-hacking law is a serious matter: Prosecutors used the legislation to send a former Reuters journalist to prison for two years last year. That same law was at the center of a historic case involving Internet activist Aaron Swartz, who committed suicide after being accused of illegally downloading academic papers from a university server.

EFF lawyers wrote in Thursday’s letter that Zillow’s accusations were frivolous and unsupportable. It claimed that Zillow had no right to accuse Wagner of breaching business contracts she was not a party to. And, it said, the site’s terms of service could not be enforced against Wagner because of another recently enacted law, the Consumer Review Fairness Act, that legally shields individuals who share their “honest opinions” about a business online.

Because her use of the real estate photos falls under a category of the law known as fair use, EFF argued, neither Zillow nor the photographers whom the images belong to can accuse Wagner of violating copyright.

“To the extent Wagner’s commentary harms the market for real estate photography by making people realize that certain homes are poorly designed, that is not a cognizable copyright injury,” the letter adds.

Although Wagner briefly disabled her site to archive its contents ahead of what seemed like a looming legal battle, Zillow’s response Thursday appears to give the blogger the benefit of the doubt.

“It was never our intent for McMansion Hell to shut down,” Zillow said, “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.”

As for whether her site will return, Wagner said on Twitter: “Hello Friends! mcmansionhell.com is back up and running.”