Monday July 03, 2017

How the McMansion Hell blogger fended off a lawsuit threat from real estate site Zillow

McMansion Hell posts images from real estate listings with snarky commentary added.

McMansion Hell posts images from real estate listings with snarky commentary added. (McMansion Hell )

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Kate Wagner was running errands last week when she received an email that made her fear she could lose her income and, possibly, her freedom of expression.

The real estate website Zillow had sent Wagner a strongly worded, cease-and-desist order over her blog McMansion Hell, where she pokes fun at the growing trend of lavish, but architecturally bizarre, U.S. houses.

A McMansion, she said, "is basically a house that is cheaply constructed, but is made to look ostentatious and huge."

"It's ugly. That's a big standard. I mean, I'm not here to define what most people think is ugly, but from a sort of architectural stance, yeah, they don't make much sense," the Baltimore blogger told As It Happens guest host Laura Lynch.

"They're really chaotic. They're kind of hobbled together. There's no sort of external or internal logic to how they work."

bathroom

Wagner says McMansions often don't make any sense. (McMansion Hell )

Wagner sometimes uses images from Zillow on her blog, re-posted with snide commentary drawn over the top.

In its letter, Zillow threatened to sue. 

"I was in the the laundromat, so I couldn't make a big scene, but it was pretty upsetting because, I mean, the blog is not only just a project that I've been doing for over a year now, it's also my main source of income," Wagner said. "So my first thought was: how am I going to pay my rent?"

What's more, the letter warned Wagner could be in violation of the federal Computer Fraud and Abuse Act.

"I was like, oh man, I really don't want to go to jail over this," Wagner said.

So she tweeted a plea for help.

The Electronic Frontier Foundation (EFF), a digital rights advocacy group, came to her rescue, offering up its lawyers.

The EFF wrote a letter to Zillow, arguing that Wagner is protected by fair use, an exception to copyright law for parody or commentary, and the Consumer Review Fairness Act, which prevents companies from blocking reviews as part of their terms of service.

What's more, the EFF found Zillow does not own the copyright to its photos — the real estate agents and homeowners who submit them do.

After facing pushback from EFF's lawyers — as well as backlash from the public — Zillow backed off and issued the following statement:

"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 be 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."

McMansions

The Electronic Frontier Foundation argues that McMansion Hell is protected under 'fair use' because of the way Wagner alters the images with text. (McMansion Hell)

Wagner said she will not take down Zillow images from her blog, but will not use them in the future.

She told As It Happens she has no intention of disrupting the company's business. 

"I don't want to make the houses more difficult to sell and I don't want anyone to be personally attacked because of the blog, so I work very hard to obscure the listings as much as possible," she said.

"It's more of a cultural commentary than anything else, about sort of the American perception of wealth and success and happiness and the … false narrative of, you know, the American dream owning a huge house and 10 cars."