East Bay Regional Data, Inc bullying me under DMCA
This isn't worth the fight for me, so expect to see some content disappear this afternoon. I'll get on the phone with them and find out what exactly they want removed.
I believe quoting excerpts from property descriptions and public records is fair use, but I'm not a lawyer, so stay tuned.
Update 1: Here's an email I sent to Becky Tobin, President & CEO of East Bay Regional Data, Inc, the person from whom the complaint originated (here it is: O1367 - knifecatchers com.pdf):
I read up on fair use and spoke to some folks who've had to deal with similar complaints from MLS, and the general consensus is "they're full of it". I reserve judgment until I hear from Becky.Hello,Your DMCA infringeme
nt notice
I own and operate the knifecatchers.com blog. I have received a DMCA removal request from my ISP and wanted to let you know I have removed all content that I understood to be covered by your request.
Because most of the content on that blog is opinion-based and public records, I would like to restore as much of it as possible while remaining in compliance with your request. To that end, I would appreciate clarification from you about what exactly must be removed, specifically:
I believe that excerpts from copy that is publicly available on Web sites like pacunion.com may be freely posted on other publicly available sites under the fair-use doctrine, as long as proper attribution is made, which I make every effort to do whenever possible. Please let me know if you feel this is not correct.
- MLS numbers themselves?
- MLS numbers associated with property addresses?
- EBRD watermarked pictures?
- Excerpts from property descriptions as posted on publicly available MLS-affiliated sites like pacunion.com or ziprealty.com?
- Excerpts from property descriptions as posted on publicly available non-MLS-affiliated sites like craigslist.org?
I appreciate the courtesy of a reply.
L. Opine
Update 2: I rephrased the title of this post and struck out some of the original language at the top to reflect the situation more accurately. As far as I understand it, I have not been threatened with a lawsuit. However, instead of getting in touch with me and resolving this issue amicably, the CEO of East Bay Regional Data, Inc. sent a 3-page DMCA complaint to my ISP demanding that a large amount of unspecified content on my blog be removed. I apologize if the language I had originally used was misleading. That wasn't my intent, and I attribute the inaccuracy to my being rather flabbergasted by the news.
Interestingly, EBRD, Inc. describes itself as "The Best MLS Value in the East Bay" yet deems it fit to spend their members' dues on legal fees to compile vague DMCA complaints against little ol' me. You'd think their members would be better served by either a discount on their dues in the amount spent on this little kerfuffle, or $x worth of promotion (where $x is what this is costing EBRD, Inc.) in some Web or print medium. I'm not linking to their site, which can be found by Googling them, because that might be prohibited by some fine print somewhere. Quoting that slogan is undoubtedly covered by fair use--what good would a slogan be if nobody was allowed to quote it without prior authorization? But if they show me a convincing precedent blocking me from quoting that slogan, I'll happily remove it.
Update 3: Here's the exchange I've had with Becky Tobin so far. I left a message on her office voice mail this afternoon as well.
I wrote back:L. Opine,
Thank you for resending the email, this is my first receipt of an email from you. I will forward your email on to Staff for review and I will contact you with a response as soon as we have completed a review of your site.
Becky Tobin
President & CEO
East Bay Regional Data, Inc.
Hello Becky,Becky wrote back:
Thanks for getting back to me. As I mentioned in my earlier email, I have removed almost all the content on my blog, so there's really nothing for you to review at this point. Would you like me to restore that content so you can review it?
Thank you,
L.
At this time, I do not need you to restore anything to the site. My response back to you will contain the information that you can/can’t display.
Becky Tobin
President & CEO
East Bay Regional Data, Inc.
Update 8/27/08: after not hearing anything for a week, I emailed Ms. Tobin this morning. Hopefully we'll see a resolution soon.
I wrote:
Ms. Tobin,
It has been a week and I haven't heard back from you regarding the content on my blog. I complied immediately upon receipt of your complaint, and my content has been off my blog to my readers' chagrin. I have spent a good deal of time making sure what content is published does not infringe on your copyright claims to the best of my knowledge, but without a very specific list of what I may and may not display, I'm not sure that's time well spent--I might be removing too much, too little, or the wrong type of content.
I would like to request to hear from you with a very specific list within 24 hours (end of business day on Thursday, August 28, 2008). If I haven't received a detailed list of what you want me to remove, or at least a reply from you with a firm date by which you will provide me with such a list, I will consider your complaint dropped and restore my content the way it was, which I understand to be protected by the fair-use doctrine.
I would also be happy to consider other options than outright content removal, since it is difficult to justify on legal grounds (as I understand fair use), time-consuming for me (I acted in good faith and am being punished and/or censored), and essentially pointless for both of us, since I do not stand to make any money by using that content, and you and your organization don't stand to lose any money--I'm not trying to sell those homes I write about and bypass the commission-sharing rules of the MLS, for example, and I find it inconceivable (and difficult to prove convincingly) that anybody would decide not to buy a property I write about on the sole basis of my writings.
With that in mind, I am open to discussing some kind of agreement with you governing the use of photos and snippets of content from publicly-accessible MLS Web sites (which, again, would be mostly pointless due to the fair-use doctrine). For example, I am willing to consider signing a document granting me non-exclusive license to use some of that content on my blog for the purpose of market analysis, critique and commentary.
Please let me know how you would like to proceed at your earliest convenience.
Thank you.
L.
Update 8/28/08: Ms. Tobin responded. I wonder what could possibly take that long. It sure didn't take long to draft the DMCA complaint and harass me through my ISP.
Mr Opine,
I will respond to you on or before September 5th with details on content that can be displayed on your Knifecatchers website.
Update 9/5/08: Ms. Tobin emailed back and needs a little more time. Stay tuned for (hopefully) the final word on 9/9.
L Opine,
I need a little more time before I have completed my research and response to you regarding the Knifecatchers website. I will be in touch with you early next week, probably Tuesday, September 9th.
I apologize for the delay,Becky Tobin
President & CEO
East Bay Regional Data, Inc.
Update 9/12/08: I'm done with these folks.
Ms. Tobin,
It's been over three weeks since your request to remove content within 24 hours. I complied immediately in spite of the vagueness of the request and its cavalier treatment of the fair use doctrine.
I requested more details about what is acceptable to use, and I have yet to receive them. You claim you need more research to determine what's acceptable, yet you filed a DMCA complaint claiming my use of publicly-available content was not acceptable. This means either you're disingenuous about needing the research, or your claim was an intimidation tactic based on unsubstantiated claims.
At any rate, because I believe my use of publicly-available content is protected by the fair-use doctrine (I do not make any money from that use, and I use the content for criticism and parody, among other things), and because you have failed to provide evidence that your claim is substantiated or even matters to your organization, I now consider your request to be de facto null and void.
Regards,L. Opine
Update 9/12/08: Gee, all I needed was to tell them I would consider their request dropped for them to finally get back to me.
Mr. Opine,
Thank you for your recent inquiry regarding the reproduction and use of certain material obtained from the East Bay Regional Data, Inc. (“EBRD”) website and the website of licensees of our content or other authorized users of such content. In particular, you had asked whether MLS listing information, such as photographs of properties for sale and associated descriptions of these properties were protected by copyright law or whether such material could be freely copied and reproduced on your public blog either from our website or the websites of our licensees, without our consent or the consent of the licensee or authorized user.
We have given careful consideration to your request. Should you wish to reproduce EBRD material or content, you must first provide EBRD with a written request to use or reproduce such material. We will promptly and carefully consider such requests in good faith. Please identify the source from which you obtained the material or content and a representation to EBRD that reproducing or copying that material does not breach the contractual agreements entered into in using the particular website from which the material was obtained (e.g “Terms of Use” or “Terms of Service” agreements of the website). So long as the source information is supplied, and we can verify that no legal agreements were violated, we will entertain your written request. Consent shall be determined on a case by case basis.
For you information, we have confirmed with legal counsel regarding relevant copyright law, including the “fair use doctrine”, that the use of photographs are protected by copyright law. Additionally, property descriptions accompanying photographs of a property for sale are considered original creative content and therefore protected from unauthorized use. Finally, the compilations of factual information describing the property are likely to receive copyright protection in so far as the visual arrangement or presentation or formatting of that material has an element of uniqueness. For these reasons, you are advised that a photograph and the accompanying property descriptions are protected by copyright law and thus the use or reproduction requires the prior consent of the owner.
Also, as you are likely aware, members of EBRD do pay a fee to obtain and review the MLS listing materials, and the use and dissemination of that information is protected content. As a matter of course, we do therefore survey the public domain, including the Web, in order to ensure that we honor the commitment we make to our members.
I hope that this letter addresses your questions. If not, or if you have any further questions or concerns, please feel free to contact me to discuss.
Sincerely,
Becky Tobin
President & CEO
East Bay Regional Data, Inc.
(925) 906-5125 office
(925) 938-8337 fax
My reply:
Ms. Tobin,
Thank you for your reply. I will no longer use any EBRD-watermarked photos on my site (I have already removed them). I don't suppose there's any point in asking for a blanket agreement that would let me use, say, one EBRD-watermarked photo per property I write about on my blog, but I will anyway--will you grant me a non-exclusive right to display EBRD-watermarked photos on my blog at the rate of one per property, provided I give full credit such as a link back to the originating site? I typically refer to www.pacunion.com and www.ziprealty.com, both of which display some of your photos.
I understand any non-watermarked photo, public-records property information and excerpts from publicly-available property descriptions may be borrowed from non-MLS-affiliated sites (including but not limited to trulia.com, zillow.com, craigslist.org, google.com, etc) under the fair-use doctrine, and I intend to continue using those sources for the purpose of not-for-profit critique and/or parody. I may also use photos of buildings I take myself during walks or which are made available by their owners under permissive licenses such as the licenses by Creative Commons.
Because that content is not your intellectual property, you have no standing to object to their use. I'm just telling you this for your information so you don't waste your time or mine by sending me spurious DMCA content removal requests in order to silence my blog, which was pretty transparently your intent in this whole situation. I haven't heard of any such complaints against other public real estate Web sites as long as they are aligned with your interests.
Regards,L. Opine
In other words, there goes absolutely nothing. Tossers (as they say in the UK).
L.Opine, I just called Becky to register my personal complaint that she's shutting down KnifeCatchers, and she said she's not yet received your email, and is looking forward to discussing this with you. I'd suggest you call her and resend the email!
Mark, thanks so much for taking action! Hopefully this can be resolved amicably. I resent Becky my original email and left a message on her voice mail, so we'll have to see what happens.
WTF? When did freedom of speech become such a threat?I consider your site the "Consumer Report of Alameda Real Estate", and since my husband discovered your site, we always come to your site for information. There are enough realtors out there misinforming buyers and your site provides accurate information cited from different and independent sources. I don't think there are any copyright infringement issues here, if you are just quoting public information. This is crazy, I know we live in a litigious state and all but when did expression of opinion and citing information becomes copyright infringement? If this was any other blogger site, this would never been an issue. I would hate for this site to go down and for this site to stop aggregating information. I'm very upset as a consumer of your site. Hope you continue with your good work!
Sad, really sad... Amazing how threatened they are by you.
Have you thought about checking with curbedSF, socketsite and burbed to see how they're operating? They've probably been threatened too at some point.
I am willing to kick in $100 so our blogger can consult with a good lawyer. Anyone with me?
I agree with Alamedamom: This site is the first place I consult when I check out a property. It's invaluable.
I can't see how any MLS information would be copyright protected since it's publicly available through so many forums. DoctorHousingBubble has a terrific blog that also quotes MLS info, so they may be a resource for advice.
Fascinating considering all information you provide CAN BE FOUND ON PUBLIC SOURCES!
Take note realtors: the buyers have information on your seller's home. When they bought it, what kind of trouble they may be in, whether they're near foreclosure, facts, facts, facts.
The observations by L. Opine and others are just that -- observations! Just because we have a good grip on the market, have a smart enough BUYING SENSE to question what we're getting into doesn't mean you have some ownership right.
Think shutting this site down will make a difference? Not at all. I'll still find all the information L. Opine has, I'll go to your open houses or get inside your home with my agent and present the offer I think the home is worth which is usually way less than what you've allowed your client to think it's worth.
L. Opine: let us know if you need a group signed letter stating our dismay.
Everyone,
Thanks so much for your support. I firmly believe the law is on our side, and Becky at EBRD promised to send me a list of what I may and may not use, so we should see a quick and amicable resolution. I have no interest in violating copyright, as evidenced by my immediate removal of all the content I thought might be in infraction.
Because it is obvious that the great majority of the content on this blog is my opinion (the public statement of which is protected by the constitution of the United States) and/or verifiable facts easily available from public sources, I suspect the most I'll have to do (and I'll do it happily, although it's a lot of grunt work for no appreciable benefit to anybody) is replace the watermarked images with smaller thumbnails (which is fair use; there are several precedents upholding this).
If push comes to shove, I'll drive around and take my own pictures. If you have any pictures of the properties I write about that you took yourself (and will state in writing that you own copyright to those pictures, and that you grant me some kind of non-exclusive license to use them on the blog), then I'll happily collect them to replace the EBRD pictures with. You know where to find me: name-of-this-site-without-dot-com-AT-gmail-DOT-com.
I have contacted the Electronic Frontier Foundation who also offered helpful suggestions.
I am not encouraging or discouraging anything that you might want to do, and decline any and all responsibility for any of your actions, past, present or future, but I also realize I cannot stop any of you from communicating your feelings with EBRD if you so desire. It is fairly easy to find a way to get in touch with them, because their contact information is publicly available in various places on and off the Web.
I am confident the old content will reappear in some form in the near future. It'll take a little while, because I don't yet know exactly what EBRD wants me to remove, and because I actually have a job to attend to during the day. I will keep posting updates on this subject, and keep writing about any properties I find out about on the Alameda market, with no copyrighted information.
I am 100% committed to upholding applicable laws and copyright. I am also 100% committed to not being steamrolled by anybody who thinks a C&D scare tactic is a good way to establish good relations with folks on the Web.
You are all so great! Thanks again for all your support, and stay tuned!
Keep up the good fight. They don't have a leg to stand on but I can understand how rough it can be to fight someone like this without your own pack of lawyers.
The fact is, the more consumers know, the less value is there for realtors. They have been getting paid a lot of money for very little work they do for buyers in the boom housing market years and they want to protect their territory. Before MLS was public information, they preserved their territory and guarded it as if it's some sort of secret, once the information is out there, then smart buyers will ask what is the value in the information they provide if we could get it on the internet. It's been a big issue for the realtors and no doubt they are threatened. I am sure realtors can justify their worth and think buyers are full of it, but we all know that realtors' value has diminished somewhat in the years when MLS information becomes public knowledge. I'm not saying that they do not provide value, and when we sold our homes we went to very knowledgeable realtors, but as buyers, we always did our homework and bought our own properties, given that my husband has a real estate broker license and a lawyer in his previous life. All set and down, we feel that good realtors are far few and in between and sometimes they come off as car sales person. For those who go to open houses a lot, you know what I mean. A blogger site likes this helps us really gain invaluable information, and truth be told, it's quite entertaining as well due to the writer’s eloquent and succinct writing style. All this is telling me is that realtors are threatened, which means the site is proven to be valuable. If they could just think outside of the box for a second, they may see there may be an actual value-added component to be partnering up with this site. But then again, we may be giving them too much credit to think like that.
I LOVE this blog and hope you keep it going in as close to its original form as possible. I'm looking to buy in Alameda right now and have been reading it daily for many months as I familiarize myself with the market. I'm also an intellectual property attorney and am glad to hear that you talked to EFF. They are fantastic and should be able to get you the help and information you need. Keep us updated on the results of your communications with Becky!
Maybe the recent ruling regarding fair use will put the fear of lawsuits into 'em!
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/08/20/BAU412FKRL.DTL&tsp=1
Just grab the information off Realtor.com and use propertyshark.com for the rest of it.
If I was running this site I'd tell that cunt Becky Tobin to go fuck herself.
Everybody, thanks for the comments and the support. Let's please keep everything civil and avoid calling people names, thank you.
I have some experience with copyright infringement lawsuits. Although I'm unfamiliar with your blog, I assume you're posting MLS information with the sole purpose of commenting on the state of the real estate market, using specific MLS listings as examples. THIS IS NOT LEGAL ADVICE, JUST OBSERVATIONS:
There are four factors that courts look to in determining whether copying falls into the fair use exception to copyright infringement. These factors are balanced against one another, and the overall outcome, though somewhat subjective, is based on how each of these factors weigh in favor of or against fair use. The factors are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use upon the potential market for the copyrighted work. Also, one cannot own copyrights in facts. One can only own a copyright in the manner in which the facts are presented or displayed.
Factor 1 (+)
Assuming that the purpose your posting of the MLS information is to disseminate facts in order to comment on a newsworthy subject, this factor probably weighs in favor of fair use. You aren't just posting the MLS listings and leaving it at that; you are discussing and commenting on the information contained in the listings. If you are not profiting from the display of the MLS information, you're probably OK. And even if you're indirectly profiting (e.g., selling ad space on your blog) in part based on attracting readers by the content of your blog (MLS listings), the primary reason you're posting the info is to discuss a newsworthy topic, not to make money from posting the MLS listings or from stealing EBRD's customers.
Factor 2 (+ or neutral)
The nature of the copyrighted work here is compiled factual data. The factual data can only be presented and arranged in a limited number of ways. Perhaps you are also displaying photographs of the properties in conjunction with the factual data (MLS listing). Although the photos are protected by copyright law, the facts (property information) are not. (The arrangement and presentation of the facts is prtotected as well.) And since the photos are presented in a factual manner and are not fanciful or artistic, it can be argued that the photos are factual in nature, and the watermark clearly atrributes the photos to EBRD. So your posting of the MLS information probably weighs in favor of fair use, although your posting of the photos is somewhat iffy. This factor probably weighs in favor of fair use, or is neutral. Again, NO ONE OWNS FACTS - they can only own the unique manner in which those facts are presented.
Factor 3 (-)
You have probably copied the MLS listings in their entirety and have not changed or reorganized them in any way. Thus, this weighs against fair use.
Factor 4 (+)
Posting MLS information on your blog probably has little effect on the demand for the copyrighted MLS listings, because no one is going to your blog looking to buy a house based on the MLS info you've posted. You're not taking away the demand for that information in the context from which you copied it. People will still go to EBRD and look at the MLS information there if they're in the market to buy a house. They'll go to your site and look at MLS information there if they're looking to comment on the state of the housing market. You aren't luring away EBRD customers by posting the MLS info and you aren't destroying demand for the MLS info in its original context. Thus, this factor likely weighs in favor of fair use.
Balancing of all 4 factors = LIKELY FAIR USE
sanchito, many thanks for the informed reply. That is also how I interpreted fair use. As for (3), I rarely if ever post the entirety of the data in an MLS listing, and usually excerpt it and only show snippets, so that should also help.
Thanks!
L.Opine, congratulations on standing against EBRD, and I'm thrilled that you've restored most of your content!
Look up the California Anti-SLAPP Project. You have protections in this situation.
It's funny that Ms. Tobin is trying to stop the sharing of public information online, but her own contact information takes about 20 seconds to find online at businessfinance.com. Here's the email address for Becky Tobin: becky@ebrdi.com.I sent her a nice email asking her to revoke her request and issue an apology. I pointed out what a bad PR move a stunt like this makes. Maybe if enough of us complain, she will get the hint!
Here is her direct information if anyone wants to contact her directly:
Attn: MS. Becky Tobin
101 YGNACIO
WALNUT CREEK, CA 94596
Anything new on this issue?
Not a peep. I will send a reminder later this week.
I'm hoping you'll be able to come to a solution with the EBRD folks. Legal protection of copyrights is an important aspect of our legal system.
Having said that, local media are hungry for "David vs. Goliath" stories, especially when they concern local entities. If you feel the demands of EBRD are unjust, I encourage you contact the media with your story.
Given the local focus of your blog, combined with the media's insatiable appetite to report on our current housing slump, the story would get the kind of PR one dreams about (and EBRD has nightmares about).