The laws are based on the number of parking places. If we're going by federal law that would mean your Home Depot has between 550 and 600 parking places. How big is this store?
Nope! Your logic is faulty, as access to the parking spots needs to be 24x7 regardless of any shopping habits
Access to some spots needs to be 24x7 (or at least during business hours), but not necessarily the same number at all times. An ideal approach would recognize these patterns (if they, in fact, exist) and do something sensible, such as having certain parking places that are handicapped-only during specific times of day, plus others that are handicapped-only all the time.
but even aside from that, they make sense when you realize that the handicapped often need bigger spots due to wheelchairs.
This is one way in which the current laws are, IMO, broken. Lots of folks who are not wheelchair-bound, but merely have difficulty getting around (e.g. folks with walkers, canes) qualify for handicapped permits. Requiring all of the handicapped spots to be wheelchair-accessible makes little sense. There should really be a percentage that is proportional to the percentage of handicapped people who are wheelchair-bound (except that this would mean most stores would have zero, so it should probably have a lower limit in addition to the percentage).
Up to a certain dollar amount ($1,170 per month, or $1,920 if you're blind), working doesn't cause you to lose disability benefits. That's almost full-time at minimum wage (or more if you're blind).
Furthermore, when minimum wage first began under FDR, it was 25 cents an hour. Adjusted for inflation, that is $4.25 an hour today.
Well, that really depends on what things you factor in when adjusting for inflation. I would argue that the primary metric when setting minimum wage should be based on the cost of getting an education to allow someone to move beyond a minimum wage job. In 1938, tuition at Harvard was $420 per year. Using that as a metric, minimum wage should be $25.76 per hour today, or about $54,000 a year.
Other possible metrics range from significantly less than minimum wage to significantly more:
Median house price: $12.10
Average movie ticket price: $8.73
Average cost of fuel: $7.50
Price of eggs: $4.08
That first one is pretty important, because both that and the cost of education are solid indicators of whether someone can possibly make enough money to make a crucial leap in personal financial development—from minimum wage to better wage, from renting to home ownership. When low-end wages fail to keep up with inflation in those areas, even though the day-to-day survival items remain affordable, it means that the people at the bottom are more likely to be kept permanently at the bottom with no opportunity for advancement, effectively growing the divide between rich and poor and eroding the middle class. This, in turn, leads to much more serious societal problems.
And there's also another critical number that this ignores: 15. That's the improvement in years of life expectancy since 1938. In 1938, on average, people lived only about 63 years, which means most people never reached what we would consider retirement age. Now, they live for more than a decade after retirement, on average, and those years are significantly more expensive in terms of average healthcare costs.
I can't find average healthcare cost statistics for the 1930s, but if we compare against 1958, the cost has roughly quadrupled after adjusting for inflation. So if we used the cost of healthcare in 1938 as the metric for computing inflation, I could easily see thirty or forty bucks an hour as a reasonable minimum wage.
Really, minimum wage is way too low. Way, way too low. And if that means that there are jobs that aren't worth what businesses have to pay, they will have to adapt—either by finding more efficient ways to use personnel or by adding automation to replace personnel with machines. And the result will be that certain categories of jobs will cease to exist. And it will ultimately be the government's responsibility to find a way to subsidize the cost of their education so that they can be qualified for jobs that pay more. But that's really the only realistic future. We simply cannot continue to live in a society where a sizable percentage of workers can never realistically afford to go to college.
*shrugs*. The question then becomes whether it is meaningful that there are differences between the photos. If there is no value in using one photo over another essentially identical photo for a given purpose, and if the effort required to create a near-identical reproduction is essentially zero (apart from the cost of physically driving there), then how could someone reasonably find that even a modicum of creativity was involved in its creation?
I'm not saying that it is, in fact, not copyrightable, just that it could reasonably be argued using Feist as a model, and arguing that the image of what a room or building looks like from a given spot is an objective fact, not an act of creativity.
Why would you think that? The times normal parking spots are full are based on people's work schedules. The handicapped are much more likely to be unemployed or self-employed... and moreover, crowds are particularly difficult if you're a slow mover so you're going to purposely avoid going to stores at the times they're most busy. It makes perfect sense that the disabled spots are all empty at a time when it would be very difficult for a disabled person to safely shop.
If we start from that assumption, then it makes no sense to have the handicapped parking places at all. During peak load, those spaces could be put to better use as normal parking spaces because the handicapped aren't going to be shopping, and when people with handicaps choose to shop, there will be plenty of empty spaces close to the building anyway without those spaces. Literally, the only way having 24x7 handicapped parking places makes any sense at all is if we assume that the shopping habits of the handicapped at least roughly match those of the rest of the public....
In fact, there are many potential jobs that are worth less than a living wage, and there are people who don't need a living wage who would like to have those jobs.
But are there, really? I can only think of two groups of people who don't need a living wage: People who get paid disability by the government (e.g. people with serious mental disabilities) and high school students. The problem is that most high school students don't really want a job, and more importantly, can't do a job during the most critical part of the workday except three months out of the year. So depending on them is not a viable way to sustain any sort of business.
Ostensibly, you could extend that to recent high school grads living with their parents, but the problem is that eventually those folks have to be able to move out of their parents' houses, which means they need additional education, which costs money—way more than a basic living wage if you want to afford even a basic two-year community college degree. And if you they don't earn enough money for that, then you've effectively created a permanent underclass that can never move out of their parents' houses, who thus eventually end up homeless when their parents retire and can no longer afford to pay their rent. This is simply not sustainable, either.
The notion of a group of people that doesn't need a living wage is, frankly, absurd. What you're really arguing is that there is a group of people who don't have enough clout to demand a living wage and/or don't understand that they're getting screwed. And that's not the same thing as not needing to make ends meet.
(Well, okay. Pedantically, there are a fair number of independently wealthy people who have enough money that they can afford to work for less than a living wage and still make ends meet. But they also don't need the money, and sure as h*** won't work for less than minimum wage, which makes that moot.)
I think there was a movie about this. (Note: I'm not saying this is a good idea; it's a horrific idea. I'm just taking this thought experiment to its natural and grisly conclusion.)
SF and surrounding bay McD's pays something like $12-15/hr because no one (not even the kids) will work for less due to the insane cost of living.
And yet, I guarantee in a few years, the right-wing media will have stories saying things like "raising minimum wage to $15 per hour is destroying restaurant jobs" even though that has been the de facto wage for some time now. It is impossible to overestimate how far removed some parts of the media are from reality.:-/ But I digress.
The only reason people can survive on $15 an hour is because of rent-controlled apartments. If those did not exist, they would end up paying the average price for housing, which they could not possibly afford. To give some hard numbers, the average rent for a one-bedroom apartment in San Francisco is $41,376. A childless married couple with both people making $15 an hour would bring in only $46,187 after taxes. At average area rent, even if they were able to walk to work, used no electricity, had no cell phone bills, etc., they would still have to survive on only $6.59 per person per day, which won't even pay for one meal in San Francisco.
IMO, the minimum wage in a region should be indexed to the cost of food and housing. Given the exorbitant price of housing in the Bay Area, a more reasonable minimum wage would be about $50 per hour, and rising. Needless to say, all the retail businesses would collapse under the weight of such a wage, but that is what needs to happen. The Bay Area is simply unsustainable over the long term with the housing market in its current condition. If all of the Bay Area's retail businesses collapsed, two-thirds of the population would say, "I don't want to live here anymore," and all the tech businesses would stop clustering themselves along a tiny twenty-mile stretch of 101 and 280. As branches opened farther outside the Bay Area where land is cheaper, people would move there, the cost of Bay Area housing would collapse to sane levels, and the minimum wage would also drop to a sane level because people could afford to live here again.
And when I say that the current situation is unsustainable, I mean that workers are demanding higher and higher wages before they'll even apply for jobs here. So it's only a matter of time before the whole retail market in the Bay Area collapses even if we don't explicitly tie the minimum wage to the regional cost of living. It will just take slightly longer for the market to naturally correct itself. IMO, the only chance the Bay Area has of not completely coming apart within the next two decades is if robots are able to take over all of those jobs before the businesses themselves completely self destruct.
We simply allowed the minimum wage to remain too depressed for too long, thus preventing the market from correcting itself by failing to provide services, which would otherwise have driven people and tech businesses out of the area and brought the cost of living back down. Now some folks might argue that we allowed way too much tech to be concentrated in way too small an area, but under a cost-of-living-indexed minimum wage, that problem would have taken care of itself long before the minimum wage reached $50 an hour, because no tech company would be willing to spend such crazy amounts of money on their cafeteria workers, janitorial staff, security personnel, receptionists, etc. merely for the supposed "convenience" of having all their R&D employees in one place.
So really, the Bay Area's problems are entirely caused by allowing the minimum wage to remain way too low for too long, and at this point, we're probably past the point of no return. The best we can hope for is that clueful politicians (hah!) will eventually create an automatically-local-cost-of-living-adjusted minimum wage on a national level, so that future cities that eventually take the place of the Bay Area after its collapse won't eventually have the same problems. That or robots everywhere. We can hope for that. I, for one, welcome our new robotic overlords^H^H^H^H^H^H^H^H^Hburger flippers.
Here you seem to be extrapolating phone book case law into broader strokes than those rulings can support. The selection of facts can be itself subject to copyright.
Fair enough. This wasn't really intended to be a legal theory, but rather an attempt to challenge the assumption that it exists, therefore it must be protected.
Additionally, selection of facts is not really what is happening here. Zillow is a glorified content aggregator. The content was almost certainly authored by the person selling the house. To the extent that anyone owns a copyright interest, it isn't Zillow. If they own anything, it is the selection of which houses to feature, which is not something that was copied by the blogger.
Of course, whether they registered a copyright in the photos before they were taken down is not something you or I know, but it's certainly possible statutory damages are available.
That harm comment was in the context of assuming that the use of the material would qualify as fair use (and thus would not yield any statutory damages). Within that context, if someone wants to somehow obtain a damage award based on a hypothetical breach of contract suit (in the unlikely event that a browsewrap license somehow was ruled to be an actual binding contract), they would have to show that they were materially harmed by that breach of contract. (Ostensibly, you could get punitive damages, but that's usually reserved for cases involving gross negligence or other serious malfeasance, not for mere breach of contract cases with no extenuating circumstances.)
Not really, and I doubt you have any case law to support that proposition. There's no "sweat of the brow" copyright, so 'paying attention to the composition, angle, lighting, etc.' is similarly not relevant.
Those are examples of ways in which a photographer adds creativity to the process. And copyright is only vested in creative works (Feist, etc.), not in largely mechanical creations. There's case law in which judges have made comments that appear to fall on both sides of this issue (e.g. INS v. AP, Time v. Geis, Bridgeman, etc.), but nothing that really qualifies as sufficient precedent to make this an open-and-shut case either in favor of or against the material being protected, so far as I'm aware.
It just has to be created by someone with some effort.
Not in the United States. See Feist. Copyright protection has nothing to do with effort and everything to do with whether the work actually involves a meaningful amount of creativity.
That rather begs the question. Can point us to established precedent, or are you engaging in conjecture here.
There's plenty of precedent that licenses require some sort of conspicuous click through to be binding. Specht v. Netscape, for example.
It makes the content available to those who visit the site, Zillow would assert, by agreeing to the Terms of Use. I'm not completely sure what you mean by "de facto rights" here. Are you claiming it is a right (such as would allow you to seek a remedy from a court of law were it to be infringed) to view any website on the internet?
I am saying that it is a right to view any website that is not protected by a password or other authentication mechanism. Any legal theory that assumes anything else would pretty much destroy the very foundation upon which world-wide web is based.
Again Zillow would assert that use of the site implicitly constitutes the acceptance of the Terms of Service. Outside the internet terms and conditions such as these are routinely incorporated by the behaviour of parties. Although a tick box might remove any ambiguity, I wonder if on-line acceptance in particular needs to be explicit. Do you have any authority speaking to this?
Yeah. In re Zappos.com, Inc., Customer Data Security Breach Litigation basically held that browsewrap licenses are unenforceable. What's funny is that this had been the general consensus of every lawyer I talked to on the subject since Specht—a good decade prior to that case going to court. That any company's legal team would still assume otherwise in this day and age borders on bizarre.:-)
Why would you need actually to read terms to agree to them? (You're not a lawyer, are you?)
A contract requires a meeting of the minds. In the absence of that, there's wiggle room for arguing that no contract exists. This is why the general recommendation has been (again for many years) to require customers to at least scroll through the terms of service before clicking "I Agree" so that they cannot claim to have not been at least presented with the entire document. You can't force them to read it, obviously, but if they never even clicked the link, that's a totally different matter.
(You're not a lawyer, are you?)
No, but I play one on Slashdot.:-D
But what is the relevance of the lack of "actual harm?" This is a not a claim in tort law, but a claim in contract law.
You're correct, but as I understand it, outside the context of tort, damage awards arising out of breach of contract actions are almost invariably compensatory, not punitive, so if there's no actual harm, then the judge is probably going to throw them out of the court for wasting his/her time. I mean, what are they doing, suing to recuperate their lawyer fees for suing?
Again I think the more dangerous point for Zillow is one of consideration. My questions would be: what legal detriment does Zillow suffer by permitting users to view their site?
Yes, that's what I was alluding to with my comment about it being a right to view a public website. There's no obvious consideration above the right that one would presume to have by virtue of the page being posted publicly. And that right is fundamental to the functioning of the web, because without the right to load a page, there's no way to see the terms of service that would grant you the rights to see a page. So again, any legal theory that presumes the lack of the right to merely load and look at a page would be nonsensical at best, and at worst would mean the end
I would argue that superimposed commentary is not really creating a derivative work, but rather a new work that merely references the original; from a technical perspective, yes, you're modifying the file, but that's strictly a matter of technical limitations rather than a matter of the nature of the work itself.
Either way, though, you can have a copyright on annotations. That's fairly well established by case law in cases regarding annotated versions of the legal code. And this appears to just be a set of visual annotations.
Regarding the copyright issue, had you actually read the C&D notice, you would see that Zillow is claiming copyright infringement, and further falsely claiming that fair use doesn't apply, when it very clearly and obviously does.
Second, the terms of use on their website are immaterial. The publication of content on a website inherently makes that content available to the world. In the absence of a user performing some action that forces the user to agree to the terms and conditions (e.g. signing up for an account), I can't see any plausible way that merely viewing the website would cause that person to be legally bound by those terms in any way, because all rights that would be granted under those supposed terms of use are de facto rights that the user already has. And as best I can tell, Zillow does not require users to sign up for an account to see pictures of houses. So unless the blogger explicitly agreed to the terms of use, the blogger is not bound by them.
Further, even if you somehow could twist the law to somehow interpret those terms of service as binding upon people who did not explicitly agree to them and may not have even read them, in the absence of the copyright claim, Zillow cannot show any actual harm from the use of these specific photos in criticizing the homes in question. In the absence of such actual harm specific to the use of these photographs (harm that would not have occurred if the blogger had gone out and taken his/her own photos of the same houses instead of theirs), Zillow has no standing to sue for a violation of the terms of service in the first place.
In short, Zillow's lawyers might as well have sent this C&D on toilet paper, because it is so full of you-know-what that it stinks from top to bottom.
Oh, but it gets better. There is reason to doubt whether the material in question is even protected by copyright. Ostensibly, a photograph is copyrightable by virtue of the artistic nature of its composition, etc. However, arguably, photographs of a house on a real estate website are typically just whatever shots some real estate agent took, probably more with an eye for showing specific things in the photo, rather than with any attention paid to the composition, angle, lighting, etc. of the photograph itself. Chances are, anybody could walk by and take a very nearly identical photograph with a modicum of effort, which puts it in basically the same category as photographs of artwork, which are generally held to not be protected by copyright.
Further, there's reason to question whether anything on Zillow's website other than their own graphics is actually protected by copyright. It is, after all, just a collection of facts. Nobody would be even asking that question if Zillow's lawyers hadn't stepped in it, but now, thanks to their ineptitude, folks are going to start asking questions, and if they come to the same conclusions that I have, it's open season on all the data contained therein for anyone to use for any reason. In effect, this threat of a lawsuit is likely to backfire in any number of ways, many of which have very serious ramifications for Zillow's ability to remain in business.
Either way, unless I missed something major in my analysis (e.g. the blogger working for a Zillow competitor and using the blog to convince people that Zillow only sells crappy houses), this would appear to be prima facie a SLAPP suit intended to harm a blogger whose criticism of high-end homes has no doubt in their minds reduced the value of those homes, and thus their profits on those sales. This is exactly the sort of criticism that the fair use section of Title 17 was intended to protect. Zillow should be ashamed of themselves, and their lawyers doubly so.
So is Zillow, but not because they fear losing and having to pay everyones' legal fees. Worst case scenario risk they perceive for them is she settles out of court if she pushes back. Which fits onto the "cost of doing business" account for Zillow.
I think you're underestimating how much it could cost them. Assuming the blogger's lawyer earns his/her keep, he/she would file a SLAPPback suit the moment the case got dismissed. In many states, there are no specific limits to punitive damages in a SLAPPback suit, so given that this would be a particularly heinous case of a big corporation bullying an individual, I would expect a large multiplier attached to the damage award.
When combined with all the bad press this is going to generate, such childish behavior by corporate "lawyers" is likely to be a self-correcting (Chapter 7) problem.
It's a shame that since fair use is actually a part of copyright law, that those who attempt to suppress fair use do not get charged with copyright infringement, and all the penalties it entails.
Actually, in many states, they would. When a company uses a lawsuit to silence its critics (or, in this case, critics of its clients), that is considered malicious(/wrongful) prosecution, a.k.a. a SLAPP (strategic lawsuit against public participation). There's nothing preventing the courts from awarding punitive damages against a company engaging in that behavior. That's why competent legal departments don't play games like this.
This isn't even parody, which is a somewhat grey area because one man's parody is another man's ripoff.
No, this is criticism, and as such, falls so solidly into the fair use bucket that I'm embarrassed for Zillow's lawyers and seriously question how they could possibly have passed the bar exam if they think the infringement is actionable.
There's a lot of overlap between a good chiropractor and a physical therapist. They both use many of the same techniques (stretching, massage, exercises, etc. to stop and eventually reverse certain types of injuries).
There are also significant differences, of course. Physical therapists cover a broader range of issues, including things like learning how to walk again after a stroke. But as a result, they're also typically a lot more expensive, so for minor, chronic injuries (e.g. "programmers' back"), a chiropractor is generally a better choice.
Back cracking triggers an endorphin release that can reduce the pain involved with any disease. I doubt they're recommending a chiropractor in lieu of an oncologist, but rather in addition to one, for much the same reason that they would probably point you to medical marijuana places if you ask.
That's pretty much what I was going to say. Heck, I think I'd pay a mowing service come over and mow my artificial turf on a weekly basis if they left a cable running across my yard for two years....
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The laws are based on the number of parking places. If we're going by federal law that would mean your Home Depot has between 550 and 600 parking places. How big is this store?
Access to some spots needs to be 24x7 (or at least during business hours), but not necessarily the same number at all times. An ideal approach would recognize these patterns (if they, in fact, exist) and do something sensible, such as having certain parking places that are handicapped-only during specific times of day, plus others that are handicapped-only all the time.
This is one way in which the current laws are, IMO, broken. Lots of folks who are not wheelchair-bound, but merely have difficulty getting around (e.g. folks with walkers, canes) qualify for handicapped permits. Requiring all of the handicapped spots to be wheelchair-accessible makes little sense. There should really be a percentage that is proportional to the percentage of handicapped people who are wheelchair-bound (except that this would mean most stores would have zero, so it should probably have a lower limit in addition to the percentage).
Up to a certain dollar amount ($1,170 per month, or $1,920 if you're blind), working doesn't cause you to lose disability benefits. That's almost full-time at minimum wage (or more if you're blind).
Well, that really depends on what things you factor in when adjusting for inflation. I would argue that the primary metric when setting minimum wage should be based on the cost of getting an education to allow someone to move beyond a minimum wage job. In 1938, tuition at Harvard was $420 per year. Using that as a metric, minimum wage should be $25.76 per hour today, or about $54,000 a year.
Other possible metrics range from significantly less than minimum wage to significantly more:
That first one is pretty important, because both that and the cost of education are solid indicators of whether someone can possibly make enough money to make a crucial leap in personal financial development—from minimum wage to better wage, from renting to home ownership. When low-end wages fail to keep up with inflation in those areas, even though the day-to-day survival items remain affordable, it means that the people at the bottom are more likely to be kept permanently at the bottom with no opportunity for advancement, effectively growing the divide between rich and poor and eroding the middle class. This, in turn, leads to much more serious societal problems.
And there's also another critical number that this ignores: 15. That's the improvement in years of life expectancy since 1938. In 1938, on average, people lived only about 63 years, which means most people never reached what we would consider retirement age. Now, they live for more than a decade after retirement, on average, and those years are significantly more expensive in terms of average healthcare costs.
I can't find average healthcare cost statistics for the 1930s, but if we compare against 1958, the cost has roughly quadrupled after adjusting for inflation. So if we used the cost of healthcare in 1938 as the metric for computing inflation, I could easily see thirty or forty bucks an hour as a reasonable minimum wage.
Really, minimum wage is way too low. Way, way too low. And if that means that there are jobs that aren't worth what businesses have to pay, they will have to adapt—either by finding more efficient ways to use personnel or by adding automation to replace personnel with machines. And the result will be that certain categories of jobs will cease to exist. And it will ultimately be the government's responsibility to find a way to subsidize the cost of their education so that they can be qualified for jobs that pay more. But that's really the only realistic future. We simply cannot continue to live in a society where a sizable percentage of workers can never realistically afford to go to college.
*shrugs*. The question then becomes whether it is meaningful that there are differences between the photos. If there is no value in using one photo over another essentially identical photo for a given purpose, and if the effort required to create a near-identical reproduction is essentially zero (apart from the cost of physically driving there), then how could someone reasonably find that even a modicum of creativity was involved in its creation?
I'm not saying that it is, in fact, not copyrightable, just that it could reasonably be argued using Feist as a model, and arguing that the image of what a room or building looks like from a given spot is an objective fact, not an act of creativity.
If we start from that assumption, then it makes no sense to have the handicapped parking places at all. During peak load, those spaces could be put to better use as normal parking spaces because the handicapped aren't going to be shopping, and when people with handicaps choose to shop, there will be plenty of empty spaces close to the building anyway without those spaces. Literally, the only way having 24x7 handicapped parking places makes any sense at all is if we assume that the shopping habits of the handicapped at least roughly match those of the rest of the public....
But are there, really? I can only think of two groups of people who don't need a living wage: People who get paid disability by the government (e.g. people with serious mental disabilities) and high school students. The problem is that most high school students don't really want a job, and more importantly, can't do a job during the most critical part of the workday except three months out of the year. So depending on them is not a viable way to sustain any sort of business.
Ostensibly, you could extend that to recent high school grads living with their parents, but the problem is that eventually those folks have to be able to move out of their parents' houses, which means they need additional education, which costs money—way more than a basic living wage if you want to afford even a basic two-year community college degree. And if you they don't earn enough money for that, then you've effectively created a permanent underclass that can never move out of their parents' houses, who thus eventually end up homeless when their parents retire and can no longer afford to pay their rent. This is simply not sustainable, either.
The notion of a group of people that doesn't need a living wage is, frankly, absurd. What you're really arguing is that there is a group of people who don't have enough clout to demand a living wage and/or don't understand that they're getting screwed. And that's not the same thing as not needing to make ends meet.
(Well, okay. Pedantically, there are a fair number of independently wealthy people who have enough money that they can afford to work for less than a living wage and still make ends meet. But they also don't need the money, and sure as h*** won't work for less than minimum wage, which makes that moot.)
I think there was a movie about this. (Note: I'm not saying this is a good idea; it's a horrific idea. I'm just taking this thought experiment to its natural and grisly conclusion.)
And yet, I guarantee in a few years, the right-wing media will have stories saying things like "raising minimum wage to $15 per hour is destroying restaurant jobs" even though that has been the de facto wage for some time now. It is impossible to overestimate how far removed some parts of the media are from reality. :-/ But I digress.
The only reason people can survive on $15 an hour is because of rent-controlled apartments. If those did not exist, they would end up paying the average price for housing, which they could not possibly afford. To give some hard numbers, the average rent for a one-bedroom apartment in San Francisco is $41,376. A childless married couple with both people making $15 an hour would bring in only $46,187 after taxes. At average area rent, even if they were able to walk to work, used no electricity, had no cell phone bills, etc., they would still have to survive on only $6.59 per person per day, which won't even pay for one meal in San Francisco.
IMO, the minimum wage in a region should be indexed to the cost of food and housing. Given the exorbitant price of housing in the Bay Area, a more reasonable minimum wage would be about $50 per hour, and rising. Needless to say, all the retail businesses would collapse under the weight of such a wage, but that is what needs to happen. The Bay Area is simply unsustainable over the long term with the housing market in its current condition. If all of the Bay Area's retail businesses collapsed, two-thirds of the population would say, "I don't want to live here anymore," and all the tech businesses would stop clustering themselves along a tiny twenty-mile stretch of 101 and 280. As branches opened farther outside the Bay Area where land is cheaper, people would move there, the cost of Bay Area housing would collapse to sane levels, and the minimum wage would also drop to a sane level because people could afford to live here again.
And when I say that the current situation is unsustainable, I mean that workers are demanding higher and higher wages before they'll even apply for jobs here. So it's only a matter of time before the whole retail market in the Bay Area collapses even if we don't explicitly tie the minimum wage to the regional cost of living. It will just take slightly longer for the market to naturally correct itself. IMO, the only chance the Bay Area has of not completely coming apart within the next two decades is if robots are able to take over all of those jobs before the businesses themselves completely self destruct.
We simply allowed the minimum wage to remain too depressed for too long, thus preventing the market from correcting itself by failing to provide services, which would otherwise have driven people and tech businesses out of the area and brought the cost of living back down. Now some folks might argue that we allowed way too much tech to be concentrated in way too small an area, but under a cost-of-living-indexed minimum wage, that problem would have taken care of itself long before the minimum wage reached $50 an hour, because no tech company would be willing to spend such crazy amounts of money on their cafeteria workers, janitorial staff, security personnel, receptionists, etc. merely for the supposed "convenience" of having all their R&D employees in one place.
So really, the Bay Area's problems are entirely caused by allowing the minimum wage to remain way too low for too long, and at this point, we're probably past the point of no return. The best we can hope for is that clueful politicians (hah!) will eventually create an automatically-local-cost-of-living-adjusted minimum wage on a national level, so that future cities that eventually take the place of the Bay Area after its collapse won't eventually have the same problems. That or robots everywhere. We can hope for that. I, for one, welcome our new robotic overlords^H^H^H^H^H^H^H^H^Hburger flippers.
There's nothing preventing the courts from awarding punitive damages against a company engaging in that behavior.
And how often does this actually happen?
Not nearly as often as it should. :-)
Fair enough. This wasn't really intended to be a legal theory, but rather an attempt to challenge the assumption that it exists, therefore it must be protected.
Additionally, selection of facts is not really what is happening here. Zillow is a glorified content aggregator. The content was almost certainly authored by the person selling the house. To the extent that anyone owns a copyright interest, it isn't Zillow. If they own anything, it is the selection of which houses to feature, which is not something that was copied by the blogger.
That harm comment was in the context of assuming that the use of the material would qualify as fair use (and thus would not yield any statutory damages). Within that context, if someone wants to somehow obtain a damage award based on a hypothetical breach of contract suit (in the unlikely event that a browsewrap license somehow was ruled to be an actual binding contract), they would have to show that they were materially harmed by that breach of contract. (Ostensibly, you could get punitive damages, but that's usually reserved for cases involving gross negligence or other serious malfeasance, not for mere breach of contract cases with no extenuating circumstances.)
Those are examples of ways in which a photographer adds creativity to the process. And copyright is only vested in creative works (Feist, etc.), not in largely mechanical creations. There's case law in which judges have made comments that appear to fall on both sides of this issue (e.g. INS v. AP, Time v. Geis, Bridgeman, etc.), but nothing that really qualifies as sufficient precedent to make this an open-and-shut case either in favor of or against the material being protected, so far as I'm aware.
Not in the United States. See Feist. Copyright protection has nothing to do with effort and everything to do with whether the work actually involves a meaningful amount of creativity.
There's plenty of precedent that licenses require some sort of conspicuous click through to be binding. Specht v. Netscape , for example.
I am saying that it is a right to view any website that is not protected by a password or other authentication mechanism. Any legal theory that assumes anything else would pretty much destroy the very foundation upon which world-wide web is based.
Yeah. In re Zappos.com, Inc., Customer Data Security Breach Litigation basically held that browsewrap licenses are unenforceable. What's funny is that this had been the general consensus of every lawyer I talked to on the subject since Specht—a good decade prior to that case going to court. That any company's legal team would still assume otherwise in this day and age borders on bizarre. :-)
A contract requires a meeting of the minds. In the absence of that, there's wiggle room for arguing that no contract exists. This is why the general recommendation has been (again for many years) to require customers to at least scroll through the terms of service before clicking "I Agree" so that they cannot claim to have not been at least presented with the entire document. You can't force them to read it, obviously, but if they never even clicked the link, that's a totally different matter.
No, but I play one on Slashdot. :-D
You're correct, but as I understand it, outside the context of tort, damage awards arising out of breach of contract actions are almost invariably compensatory, not punitive, so if there's no actual harm, then the judge is probably going to throw them out of the court for wasting his/her time. I mean, what are they doing, suing to recuperate their lawyer fees for suing?
Yes, that's what I was alluding to with my comment about it being a right to view a public website. There's no obvious consideration above the right that one would presume to have by virtue of the page being posted publicly. And that right is fundamental to the functioning of the web, because without the right to load a page, there's no way to see the terms of service that would grant you the rights to see a page. So again, any legal theory that presumes the lack of the right to merely load and look at a page would be nonsensical at best, and at worst would mean the end
I would argue that superimposed commentary is not really creating a derivative work, but rather a new work that merely references the original; from a technical perspective, yes, you're modifying the file, but that's strictly a matter of technical limitations rather than a matter of the nature of the work itself.
Either way, though, you can have a copyright on annotations. That's fairly well established by case law in cases regarding annotated versions of the legal code. And this appears to just be a set of visual annotations.
You're wrong on both counts.
Regarding the copyright issue, had you actually read the C&D notice, you would see that Zillow is claiming copyright infringement, and further falsely claiming that fair use doesn't apply, when it very clearly and obviously does.
Second, the terms of use on their website are immaterial. The publication of content on a website inherently makes that content available to the world. In the absence of a user performing some action that forces the user to agree to the terms and conditions (e.g. signing up for an account), I can't see any plausible way that merely viewing the website would cause that person to be legally bound by those terms in any way, because all rights that would be granted under those supposed terms of use are de facto rights that the user already has. And as best I can tell, Zillow does not require users to sign up for an account to see pictures of houses. So unless the blogger explicitly agreed to the terms of use, the blogger is not bound by them.
Further, even if you somehow could twist the law to somehow interpret those terms of service as binding upon people who did not explicitly agree to them and may not have even read them, in the absence of the copyright claim, Zillow cannot show any actual harm from the use of these specific photos in criticizing the homes in question. In the absence of such actual harm specific to the use of these photographs (harm that would not have occurred if the blogger had gone out and taken his/her own photos of the same houses instead of theirs), Zillow has no standing to sue for a violation of the terms of service in the first place.
In short, Zillow's lawyers might as well have sent this C&D on toilet paper, because it is so full of you-know-what that it stinks from top to bottom.
Oh, but it gets better. There is reason to doubt whether the material in question is even protected by copyright. Ostensibly, a photograph is copyrightable by virtue of the artistic nature of its composition, etc. However, arguably, photographs of a house on a real estate website are typically just whatever shots some real estate agent took, probably more with an eye for showing specific things in the photo, rather than with any attention paid to the composition, angle, lighting, etc. of the photograph itself. Chances are, anybody could walk by and take a very nearly identical photograph with a modicum of effort, which puts it in basically the same category as photographs of artwork, which are generally held to not be protected by copyright.
Further, there's reason to question whether anything on Zillow's website other than their own graphics is actually protected by copyright. It is, after all, just a collection of facts. Nobody would be even asking that question if Zillow's lawyers hadn't stepped in it, but now, thanks to their ineptitude, folks are going to start asking questions, and if they come to the same conclusions that I have, it's open season on all the data contained therein for anyone to use for any reason. In effect, this threat of a lawsuit is likely to backfire in any number of ways, many of which have very serious ramifications for Zillow's ability to remain in business.
Either way, unless I missed something major in my analysis (e.g. the blogger working for a Zillow competitor and using the blog to convince people that Zillow only sells crappy houses), this would appear to be prima facie a SLAPP suit intended to harm a blogger whose criticism of high-end homes has no doubt in their minds reduced the value of those homes, and thus their profits on those sales. This is exactly the sort of criticism that the fair use section of Title 17 was intended to protect. Zillow should be ashamed of themselves, and their lawyers doubly so.
I think you're underestimating how much it could cost them. Assuming the blogger's lawyer earns his/her keep, he/she would file a SLAPPback suit the moment the case got dismissed. In many states, there are no specific limits to punitive damages in a SLAPPback suit, so given that this would be a particularly heinous case of a big corporation bullying an individual, I would expect a large multiplier attached to the damage award.
When combined with all the bad press this is going to generate, such childish behavior by corporate "lawyers" is likely to be a self-correcting (Chapter 7) problem.
Actually, in many states, they would. When a company uses a lawsuit to silence its critics (or, in this case, critics of its clients), that is considered malicious(/wrongful) prosecution, a.k.a. a SLAPP (strategic lawsuit against public participation). There's nothing preventing the courts from awarding punitive damages against a company engaging in that behavior. That's why competent legal departments don't play games like this.
This isn't even parody, which is a somewhat grey area because one man's parody is another man's ripoff.
No, this is criticism, and as such, falls so solidly into the fair use bucket that I'm embarrassed for Zillow's lawyers and seriously question how they could possibly have passed the bar exam if they think the infringement is actionable.
There's a lot of overlap between a good chiropractor and a physical therapist. They both use many of the same techniques (stretching, massage, exercises, etc. to stop and eventually reverse certain types of injuries).
There are also significant differences, of course. Physical therapists cover a broader range of issues, including things like learning how to walk again after a stroke. But as a result, they're also typically a lot more expensive, so for minor, chronic injuries (e.g. "programmers' back"), a chiropractor is generally a better choice.
Crystals? What the heck kind of chiropractor are you going to?
Back cracking triggers an endorphin release that can reduce the pain involved with any disease. I doubt they're recommending a chiropractor in lieu of an oncologist, but rather in addition to one, for much the same reason that they would probably point you to medical marijuana places if you ask.
I call it the electromechanical superhighway (or, colloquially, the Interstate).
Use a cell phone, email it to yourself, and you're done.
That's pretty much what I was going to say. Heck, I think I'd pay a mowing service come over and mow my artificial turf on a weekly basis if they left a cable running across my yard for two years....