Zillow caused a whirlwind of controversy yesterday by issuing a fiercely worded cease and desist letter to Kate Wagner, who operates the popular McMansion Hell Tumblr blog. The letter accused Wagner of copyright infringement and walked right up to the line of claiming that using Zillow’s real estate photos for architecture criticism is a crime. Really!

The letter scared Wagner into pulling the blog down entirely and asking Twitter for help. She told us yesterday that McMansion Hell is her livelihood, through Patreon and merchandise sales. Zillow, predictably, took a massive PR hit, because sending nastygrams to popular Tumblr users before talking to them like human beings is always a terrible idea. And there was a lot of discussion about copyright and fair use, most of which centered on the fact that criticism and commentary like Wagner’s is generally regarded as fair use, regardless of how snarky or sarcastic it might be.

“No, we don't own the photos.”

But here’s the thing: Zillow doesn’t actually own the photos in question here. Seriously: I asked if Zillow owns the photos, and Zillow’s PR person Emily Heffter responded with “No, we don't own the photos.”

That means Zillow can’t really do anything about Wagner’s use of the photos on her blog. You can’t allege copyright infringement if you don’t own the copyright. That responsibility falls on the copyright owners themselves, which in this case are real estate agents, brokerages, Multiple Listing Services, and other users who upload photos to Zillow. “We can't give away what is not ours. It is our legal responsibility to those partners to enforce the contracts we have with them,” says Heffter.

You can’t allege copyright infringement if you don’t own the copyright

Of course, Zillow isn’t “giving” anything away. It’s a platform on which people publish real estate listings with photos, and Wagner is taking those photos and commenting on them. I asked Zillow to share with me any contractual language that would bind Zillow into sending this letter, or any theory that would let it enforce someone else’s copyright, and the company declined further comment on the issue.

They did send me a much nicer letter that Zillow VP of communications and public affairs Katie Curnette sent to Wagner today. I’ll reprint the whole thing below, but here’s the key line: “We do not own the rights to many of the photos on our site, and therefore can’t give permission for third parties, such as yourself, to take the photos from our website for any purpose.”

To be very clear, what Zillow is trying to say here is that people need permission to create commentary and criticism of photos on Zillow. That’s not how it works. You don’t need permission to make fair use of copyrighted materials — that’s the whole point. If you needed permission for every potential use of a photo, the internet would basically shut down: there wouldn’t be film criticism on YouTube or memes on Twitter or basically anything on Pinterest. Zillow might not have permission to give, but fundamentally the issue is that no permission is required.

That doesn’t mean it’s a free-for-all: a copyright owner might get mad at you for using a photo and you might end up arguing with them about whether your use was fair, but again, Zillow isn’t even the copyright owner here.

Speech on the internet shouldn’t be chilled by irritated real estate agents

I’m all but certain some brokerage or MLS provider saw Wagner’s blog, got mad that their photos were being used to make fun of the houses they were selling, and complained to Zillow. And Zillow’s lawyers probably thought sending a scary letter would solve the problem, because that’s what lawyers are paid to do.

But having platforms police copyright outside of their own domains like this is dangerous. You wouldn’t want another company like YouTube or Instagram unilaterally deciding how other people can remix or rethink your work on some other platform, just like you don’t want any of those companies selling your work to someone else without permission. These companies already mediate a huge amount of speech on the internet on their own platforms; allowing them to misapply copyright law to hit other platforms is entirely too much. Speech on the internet shouldn’t be chilled by irritated real estate agents.

Here’s the much nicer letter Zillow sent to Wagner today, in full: