【Japan Archives】

Kate Wagner is Japan Archivesa 23-year-old grad student and the writer behind McMansion Hell, a blog that catalogues and critiques the ostentatious cookie-cutter houses that became emblematic of the U.S. real estate bubble.

She's also, rather suddenly, the newest symbol of the fight for media freedom.

Wagner's blog, in which she would add text to point out the various brutal design choices of McMansions, disappeared on Monday after she received a cease-and-desist letter from real estate website Zillow. The company claimed that Wagner's use of photos from Zillow's website constituted a breach of copyright rules as well as Zillow's terms of use.

The good news is the blog is not gone. Wagner said in an interview that the site is down for maintenance but will be back "relatively soon."

The bad news is that Wagner can't say much more on advice from her lawyers at the Electronic Frontier Foundation, the nonprofit organization that is taking up her cause.

"We are representing Kate Wagner and will be sending a detailed response to all of Zillow's contentions soon," wrote Daniel Nazer, EFF staff attorney, in an email. "We hope that Zillow comes to appreciate that it made a mistake and withdraws its threat."

Such is life on the internet in 2017. It's not hard to imagine what would happen if Wagner had to face Zillow and its lawyers without an organization like the EFF backing her.

But here's the thing about Zillow's claim—it's not very strong. Wagner's reproduction of the photos with additional commentary is a pretty good example of "fair use" for the purpose of commentary and criticism.

That said, there's not a ton of great legal precedent around photos on the internet. In a perfect world, Wagner and her lawyer would be able to simply point to previous examples in which similar uses were given an OK by a court. That doesn't exist, yet.

The issue here, however, isn't around copyright law. It's that a writer on the internet who is pretty clearly within the law is easily convinced to shut down her blog because a large company just might consider legal action that has two outcomes: Spend a lot of money and lose, or spend a lot of money and win. But either way, it's a lot of money that a writer probably doesn't have. This is the chilling effect that legal action can have on writers—and even larger media organizations.

Chip Stewart, a professor of media law at Texas Christian University, said cases like these tend to attract lawsuits due to the ambiguity of fair use. Even if a situation seems one-sided, it can still result in an expensive legal battle.

"As I teach my students, fair use is just the right to get sued and argue in court against someone else's expensive lawyer," Stewart said. "The mechanics of defending yourself are a mess."

The use of the legal system to silence disagreeable opinions has received renewed attention thanks primarily to the downfall of Gawker in 2016 as a direct result of a lawsuit brought by professional wrestler Hulk Hogan and backed by billionaire Peter Thiel.

The lawyer for Hogan isn't done yet. He's now representing the CEO of a sports betting website who is suing Deadspin. Separately, Techdirt is being sued by a person who has claimed to have invented email.

Gawker was a far bigger operation than Wagner's blog, but they both share a vulnerability common to media companies—they don't have terribly deep pockets to fight off legal trouble. The EFF certainly helps, though as a nonprofit it will also have to figure out its breaking point. Legal costs can pile up quickly.

Wagner is worth championing for one big reason—actually going to court with Zillow and getting a decision could help clarify copyright law for photos and help avoid future lawsuits.

Zillow, for its part, has tried to soften its stance since the initial letter. The company said it did not want to shut down the blog, just for Wagner to stop using the photos.

The case is far from seeing the inside of a court room just yet, but

"I would love to see this actually litigated," Stewart said. "We're short on good court opinions on online photos and copyright. The law is underdeveloped in this area."

McMansion Hell, it turns out, is worth fighting for.