East Bay Regional Data, Inc bullying me under DMCA

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I just got a notice from my ISP that EBRD is threatening to sue me for copyright infringement demanding in no uncertain legal terms that I remove content they feel infringes on their intellectual property, under the 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):

Your DMCA infringement notice

Hello,

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:

  • 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 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.

I appreciate the courtesy of a reply.

L. Opine
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.

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.


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.

I wrote back:

Hello Becky,

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.

Becky wrote back:

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.

becky@ebrdi.com

(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).




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This page contains a single entry by L. Opine published on August 20, 2008 12:39 PM.

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