[ewanm89]

No, but under Lenz Vs. Universal a take down under the DMCA must considered in a subjective fair use analysis before being issued. This sounds like it wasn't done. As for how much of something allowed to be reused the law states the minimal amount needed for the critique or parody, if this is the whole thing as is sometimes the case in an image then that is something for a judge to decide.

[paulgb]

The letter sent to Kate was a C&D, not a DMCA takedown.

[mikekchar]

For me this is the main point. Personally I don't see a copyright issue here at all, and if there was I would expect a DMCA takedown request. Instead this appears to be a contract dispute with Zillow who claims that the person violated the terms of service.

What confuses the issue is that they additionally offered advice that the use violates copyright law, but they specifically do no claim standing in the matter -- "... Your actions infringe the rights of each copyright holder ..." They don't claim to be one. Additionally (IIUC, and I am not a lawyer) fair use is still infringing. It is not a defence, it is used for calculating damages. So, I think their advice is factually correct, if misleading.

Similarly they claim that "... Your activities may violate the federal Computer Fraud and Abuse act", which is mostly irrelevant. It's the state that decides this, and if they want to complain, they have to go to the police.

To sum up, my reading is that Zillow feels this violates the terms of service that the person agreed to. They sent a C&D as is required for that kind of contract dispute. They added a whole bunch of scary, but meaningless crap to make is sound threatening. Not fantastic, but arguing about the meaningless crap does not address the actual issue -- did the person violate contract terms that they had agreed to? If so, no amount of discussion about fair use is going to be relevant.

[paulgb]

Yes, I think the lawyer here is essentially admitting they don't have a copyright case directly. A C&D is basically just asking someone to stop doing something, so it makes sense that they would throw in every theory that sounds plausible. I don't blame them for this, it's not the C&D sender's job to be the recipient's lawyer.

Only the state can enforce the criminal parts of the CFAA, but there are civil parts as well.

[tareqak]

Does that make sense though? Why would the lawyer send a C&D that's so broad if the specific issue was a violation of Terms of Service. That would be similar to an engineer or technician saying that the Internet is broken when in fact it is just a cable modem and/or router that is at fault.

[paulgb]

I assume they think it's better to be thorough. A C&D isn't a lawsuit, it's a letter to persuade someone to change their behavior. It doesn't hurt to mention all the reasons you think they should stop even if some are a little dubious.