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$81M lawsuit claims Zillow illegally scrapes real estate listing pics

(BUSINESS NEWS) Real estate giant Zillow is being sued by a California photographer who intimates that the company has scraped the images without anyone’s permission.

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California photographer, George Gutenberg filed a lawsuit today against Zillow, alleging copyright violations for their use of his real estate photos, indicating that Zillow scrapes images from Multiple Listing Services (MLSs) rather than using listing data syndicated to them.

Court documents request a bench trial, damages (plus attorney’s fees and court costs), and that Zillow stop using Gutenberg’s copyrighted images. Under 17 U.S.C. § 504, Gutenberg is seeking “an amount to be proven or, in the alternative, at Plaintiff’s election, an award for statutory damages against Defendant in an amount up to $150,000.00 for each infringement pursuant to 17 U.S.C. §
504(c), whichever is larger.”

If Gutenberg were to win, Exhibit A of the lawsuit cites 543 images in question across 17 listings on Zillow, which would total $81,450,000 or more.

The issue of real estate photography copyrights has long been convoluted. There are six stakeholders that have consistently argued that they own images used in real estate listings: homeowners, real estate photographers, the listing agent, the broker, MLSs, and real estate listing websites.

The argument that homeowners own the rights to images taken of their property has very little merit, and we have uncovered no copyright lawsuits that a homeowner has won regarding photography.

One can see why an agent or broker believes they have the right to the images they’ve paid for, but those parties don’t always read their photographer’s agreement prior to paying their invoice, while MLSs and websites have slid into their Terms of Service that they own the copyright once it is uploaded to their servers (be it directly or via syndication).

But what is different about Gutenberg’s position than many others is that he retains the copyright to all photographs taken of each property, allowing the agent a “limited license to use the photographs for up to one-year purposes of marketing the property.”

Wouldn’t that include Zillow? Nope.

The license “expressly states that it is not transferrable and prohibits third party use without permission from Gutenberg.”

Unlike many photographers, Gutenberg actually registers his images with the U.S. Copyright Office.

Mathew Higbee of Higbee and Associates issued the following statement to The American Genius:

“Mr. Gutenberg has a robust working relationship with many top real estate agents in southern California and across the nation. Mr. Gutenberg’s clients gladly pay to license his work knowing that Mr. Gutenberg’s high-quality photographs and signature style add significant value to their listings. In addition to real estate listings, Mr. Gutenberg also licenses of his photographs for editorial and commercial use in print and online publications, advertisements, and retail and commercial businesses.

The agents that engage Mr. Gutenberg understand that they are permitted to use his photographs for the limited purpose of promoting their real estate listing, which includes placing the photographs on the MLS. Content placed on the MLS is only available for the life of the listing and is immediately removed when the listing is sold or otherwise taken off the market. Mr. Gutenberg is not aware of any of his real estate clients directly syndicating his photographs to Zillow, nor is Mr. Gutenberg aware of any of his real estate clients exceeding the scope of rights granted in their individual licensing agreements with him.

Rather, it appears that Zillow, owner of the largest real estate website in the world, indiscriminately copies millions of photographs per day off of the MLS in an effort to build what they refer to as their ‘Living Database of All Homes,’ which Zillow has leveraged into multi-billion dollar company. Zillow’s unlawful copying comes at the expense of creators and rights holders such as Mr. Gutenberg who depend on payment of reasonable licensing fees by those who exploit their works.”

The implication is that the clients are not in violation of the copyright if they didn’t syndicate listings to Zillow or upload them directly. A claim that is far heavier than a standard copyright lawsuit, and stands to call into question Zillow’s practices.

The internet has long changed how people copyright images, who owns them, what agreements each party enters as they upload and/or syndicate data to third party sites. This isn’t the first lawsuit of this nature, nor the last.

We’ll keep you updated as this lawsuit progresses.

Lani is the Chief Operating Officer at The American Genius and has been named in the Inman 100 Most Influential Real Estate Leaders several times, co-authored a book, co-founded BASHH and Austin Digital Jobs, and is a seasoned business writer and editorialist with a penchant for the irreverent.

Real Estate Corporate

Zillow patent grab advances, now seeking patent on automated rental rates

(REAL ESTATE) Zillow has been applying for utility patents left and right, now adding rental Zestimates to the list.

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We recently reported that Zillow is scooping up patents faster than developers are bulldozing Central Austin single family homes to build two modern half-million dollar homes in their place.  And since then, Zillow’s showing no signs of slowing down.

The online real estate search giant applied for another utility patent for automatically determining market rental rate index for properties .

And what is that you ask?

This application patents Zillow’s ability to determine and index the market rental rate for homes in a geographic area. By accessing the current market rental rate of every home in each area, they can automatically compare them to similar homes to obtain aggregate results.

This functionality isn’t new. Other sites use similar functions to help renters find homes in the areas of their choosing at prices they are willing to pay. However, as we stated, utility patent applications are time intensive and the cost alone raises eyebrows.

Why?

Because if granted these patents, Zillow will be putting themselves at odds with their direct competition and other heavy hitters in the real estate search engine space. No biggie, it’s a free market, but brokers (who butter their bread) also feature automated rental rate tools, many not from Z.

As we mentioned before, this calls into question the unsavory practice of patent trolling. Patent trolls weaponize patents by scooping up patents from other companies instead of coming up with new ideas or technologies. In this case, it means grabbing patents for common technology, such as functionality that allows a user to compile a list of homes with desirable attributes in their prices range.

This kind of technology is already commonly used by several companies and some tell us they believe it shouldn’t need a patent in the first place. However, if Zillow’s applications for the patents go through, they can use them to threaten competing companies with legal action for infringement or failure to pay licensing fees for use of said tech.

Alternatively, this could be a brilliant move by Zillow to protect their intellectual property, their very own special way of automating this data, and that too is a smart business move.

We don’t know how this shakes out, but we’ll definitely be keeping a close eye out for updates.

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Real Estate Corporate

Zillow patent apps claim they invented AVMs, uploading home data via mobile

(CORPORATE) Zillow has applied for a handful of utility patents, and their invention claims will shock the real estate industry.

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It appears that online real estate search giant, Zillow, is applying for some pretty interesting utility patents. They currently have in four applications with the U.S. Patent Office, including automatically determining the current value for a home, the capture and use of a building interior data from mobile devices, and connecting and using building interior data acquired from mobile devices.

So, patents on AVMs and uploading data about a house via smartphone.

A claim that they invented both and should hold the patents.

First things first, what’s a utility patent?

Regarding inventions, U.S. Code defines a utility patent as “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Patents are instructions from inventors telling the public how to use their invention. 

There are two kinds of patents – utility and design. Design patents are less detailed requiring only drawings of one’s design and a very limited text explanation. Utility patents require drawings, diagrams and very detailed explanations of how the invention works.

Zillow has recently applied for four patents.

Two for separate patents for automatically determining a current value for a home. See here and here. Both of these include inventions that would have the ability to locate a home in a particular area as described by a user and thus offer the user the selling price and recently sold price through the evaluation of a home’s particular attributes.

The third is for the capture and use of a building’s interior data from mobile devices. This could mean using a phone’s camera to analyze the interior of a home to generate a representation of the home’s interior, for example.

The last patent is for connecting and using building interior data acquired from mobile devices which could mean automating the operations used to acquire images of a home’s interior such as using a phone to capture video for multiple views to put together a virtual representation of a home.

So, why is this important?

Utility patent applications are time intensive and super costly starting at around a few thousand dollars for simple inventions and leaping into the tens of thousands range for more complex ideas and technologies.

Considering the cost alone, one could assume that Zillow has something pretty big in store for the future or at the very least, some pretty lofty goals.

If granted, these patents would instantly put Zillow at odds with the majority of real estate tech companies and brokerages.

Could this have anything to do with rumors of their potentially being acquired in 2019?

Or could it having something to do with the expansion of Zillow Offers, the company’s direct home-buying and selling service?

Maybe Zillow’s just attempting to quash their competition?

Or maybe they’re looking to boost revenues with some good old fashioned patent trolling

Time will tell what Zillow’s patent rampage means, or if the Trademark Office will even grant these patents.

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Real Estate Corporate

New Zillow strategy – telling you to take your money and shove it

(REAL ESTATE) Zillow is adding a new feature that is raising eyebrows, but could go a long way toward consumers’ trust in their new direction.

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In college I would spend hours investigating what courses I would be taking the next semester. My university provided a flow chart of the kinds of classes I needed to enroll in, but it was completely up to me which one I chose. I used two main sites that helped my make my decision. One was a site that showed me every single variation of my potential schedule and the other was a crowd sourced rating site for the professor. Since then, several rating sites have come out all in different industries, and as you already know, real estate is no exception.

As a consumer, I have a very strange relationship with Zillow. I’ve never bought a house, but I’ve used Zillow to find multiple rental homes, to dream about homes I’ll never afford because I like avocado toast and to look at the before photos of a home my friends bought.

I also have a strange consumer opposition to them after their little Zestimates drama last year, their recent foray into alleged photo poaching, and their not so blatant attempt to run the table by buying a mortgage company.

That said, Zillow’s new strategy has my interest piqued.

With the purchase of Mortgage Lenders of America, Zillow has secured their place at the adults table of the real estate world. They’re now the search engine that will help you find a house, the company that will connect you to a Realtor and the lender that can help you buy it. Zillow is taking their one-stop shopping a step further and allowing you to rate your real estate agent (beyond their existing rating system) — just like I did with my professors.

Customers will be asked for input on agents’ communication style, responsiveness, trustworthiness, and expertise (sound like HomeLight? Yeah, I know).

In an effort to be customer satisfaction driven, Zillow’s Premier Agent customers will be privy to reports based on data that Zillow will collect from other customers that will gauge agents’ performance.

Zillow believes their customers are all about customer service and I can’t say they’re wrong. I don’t know of any industry where customers don’t want quality assistance. The irony is not lost on me, though, that they’re an online company trying to measure human interaction.

Zillow’s President, Greg Schwartz, explained, “we promise you this: we’re going to give you the greatest platform to make it happen. And we’ll keep pushing to get it right so you can deliver exceptional experiences.”

Solid promise, but how is it going to work? Will it be like the website I used to rate my professors where it was an option to do so or I could just lurk in the shadows and reap the benefits of the reviews? Or is it going to be like Uber / Favor / fill-in-the-blank-phone-app-service where I am required to submit a review before I’m allowed to do literally anything else? They’ve long had agent ratings, but insiders suggest that an Uber-esque rating is really what’s in play here.

Schwartz went on to talk about agents who aren’t performing up to customer standards — again, are there hard and fast guidelines? Because I can guarantee you that as a customer, I will have different standards than Mariah Carrey.

Schwartz said, “For agents who aren’t performing up to customers standards — Zillow will no longer be interested in taking their money. The company wants to be able to tell every consumer who comes to the site that the agent they select will deliver a high-quality experience.”

Whoaaaaaa. Schwartz is really swingin’ for the fences there. If you aren’t up to Zillow’s standards, they’ll tell you to take your money and shove it. Despite a shaky opinion of the mega-company, this speaks to me.

I’m not entirely sure alienating large groups of a people you’re trying to work with is the best strategy, but Zillow seems to have the appearance of trying to do good things. We’ll see what shareholders think, how brokers will respond to a potential Uber-esque rating for their agents, and ultimately, how consumers opt to trust the data in a sea of subjective agent ratings alongside endless lawsuits against that shake confidence in the brand.

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