Just because Zillow has something in their terms of use that doesn't make it enforceable.
The letter says:
"But Wagner is not bound by your Terms of Use and, even if she were, the relevant provisions are unenforceable. Courts routinely decline to enforce “browsewrap” agreements like Zillow’s Terms of Use, which fail to present terms except via a hyperlink and without a checkbox to signal assent. See, e.g., Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014); Meyer v. Kalanick, 199 F. Supp. 3d 752 (S.D. N.Y. 2016); Be In, Inc. v. Google Inc., No. 12-CV-03373-LHK, 2013 WL 5568706, at *9 (N.D. Cal. Oct. 9, 2013); Kwan v. Clearwire Corp., No. C09-1392JLR, 2012 WL 32380 (W.D. Wash. Jan. 3, 2012)."
Nguyen v. Barnes & Noble Inc., - court declined to apply arbitration clause (https://en.wikipedia.org/wiki/Nguyen_v._Barnes_%26_Noble,_In...) Meyer v. Kalanick, - court declined to apply arbitration clause (http://blog.ericgoldman.org/archives/2016/08/judge-declines-...) Kwan v. Clearwire Corp. - court declined to apply arbitration clause (http://blog.ericgoldman.org/archives/2012/02/kwan_v_clearwir...) Don't have a link to the Google case, but I would be shocked if it werent the same issue.
Do you see how the very first paragraph where they start citing has very little to do with the actual issue? Translation: "Hey Zillow, first of all your terms of service arent enforceable, see these 4 cases, all of which have to do with whether an arbitration clause could be applied and have nothing to do with the current situation."
2nd paragraph: "Even if an agreement were formed, paragraph 14 of the Terms of Use, asserting Zillow’s right to alter the contract without notice or justification, would render the agreement illusory and void for lack of consideration. See, e.g., Cheek v. United Healthcare of Mid-Atl., Inc., 378 Md. 139, 144, 835 A.2d 656, 659 (2003); Interchange Assocs. v. Interchange, Inc., 16 Wash. App. 359, 362, 557 P.2d 357, 359 (1976)."
Again, nothing to do with the situation at hand
Cheek v. United Healthcare of Mid-Atl., Inc. - arbitration clause in an employee handbook held unenforceable (http://www.whaylaw.com/employee-arbitration-agreement) Interchange Assocs. v. Interchange, Inc. - an agreement where directors agreed to serve 10 years or until they resigned was an "illusory promise" and did not provide sufficient consideration for a contract (http://courts.mrsc.org/appellate/016wnapp/016wnapp0359.htm)
Again, neither of these are really relevant to the situation. I'll stop here but I hope you get the gist of it. Here's what happened - some junior lawyer at EFF spend 4-5 researching all the cases they thought would be remotely relevant and threw them in there because hey it looks impressive, but if you spend some time digging into them the truth quickly becomes apparent.
(I don't work for Zillow or EFF)
You could try to draw a distinction by showing that this particular browsewrap agreement was more prominently featured than the one at issue in Nguyen, but you don't get to just hand-wave it away by saying that it was about an arbitration clause.
You dont have this situation when the issue is whether you have the ability to use a provider's images for non-permitted purposes. Your right to use someone's images how you like is not nearly as important as your right to a jury trial. I'm not aware of any case where non-arbitration provisions of a TOS were not applied due to browsewrap reasons, if you are aware of any I'd love to see them.
EFF's argument would be totally valid if Zillow was trying to force McMansion into arbitration. That's not the issue here, and it's misleading to start off with "your TOS are unenforceable [because courts have declined to apply arbitration provisions in certain browsewrap TOS contexts]"
As a reminder, Zillow cannot, here, file a DMCA notice because they lack the copyrights with which to do so, and pretending to represent a copyright owner you do not in fact represent is contrary to the statement you sign under penalty of perjury when filing a (non-defective) DMCA notice.
You never did address 15 USC 45b, either, which further undermines their claims of ToS enforceability -- https://www.law.cornell.edu/uscode/text/15/45b
And I'm really not clear why you think one's first amendment rights would have less weight than sixth amendment rights? You haven't really articulated a theory as to why one is important and the other is not.
If you're going to pick apart an argument why not Zillow's? Their claim under the CFAA is ridiculous and it was already shot down in US v. Nosal.
"The Ninth Circuit's first ruling (Nosal I) established that employees have not "exceeded authorization" for the purposes of the CFAA if they access a computer in a manner that violates the company's computer use policies—if they are authorized to access the computer and do not circumvent any protection mechanisms."
See for but one of many examples Kindred Nursing Centers Limited Partnership v. Clark from last month.
It's very clear (in everything but the Holding synopsis)) that court sees the ability for browserwrap to hold over a website visitor is contingent on affirmative action being required of a website visitor. That makes the citation more than just pertinent but a knockout if Zillow is arguing that McMansion Hell were bound by their ToS, and so ...
That said I can't see the court acceding that ToS overrule Fair Use for reporting/critique/parody/education as that would neuter Fair Use completely.
Fair use is a COPYRIGHT doctrine. It is part of the US copyright law that says, creators of a copyright can enforce their rights against people who misuse their creations, except in certain cases, fair use being one of them. So if Zillow brings a claim under the US Copyright act, McMansion can assert a fair use defense. (https://www.copyright.gov/fair-use/more-info.html)
Zillow's terms of service is a CONTRACT. It is separate from whether Zillow can bring a copyright claim. They could sue for both breach of contract and copyright infringement. Fair use is a legitimate defense for the copyright infringement claim (and I agree would likely be successful). It is NOT a defense for the breach of contract claim. There is no such thing as "TOS overriding fair use" because they are on separate and distinct tracks. ("However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.[21]" - https://en.wikipedia.org/wiki/Fair_use)
As for whether the arbitration cases show that restrictions on use of proprietary images on browsewrap TOS are enforceable, we'll agree to disagree - jury trials are a far more important right (as someone below pointed out) than whether you can use someone's proprietary images for your own purpose. I find it difficult to believe a judge or jury could (fairly) find that there is no 'meeting of the minds' on whether you can take and use any images, website content, code, etc. you feel like from someone's website or online product under a browsewrap license. It's a significantly different issue than whether an arbitration clause can be enforced. I would argue that most people know that 'taking things from other people is bad and not allowed' without requiring prominent notice on a website about it. But this case will be litigated, so we'll never know.
I don't know it to be certainly true, if you can cite something solid on the point I'd be happy: however in general there is such a principle, that certain rights can't be disclaimed.
Taking a logical approach - and law is not always logical - Fair Use could be disclaimed, eg in a ToS, then all Media corps would say words to the effect "this work can't be used under USC's Fair Use legislation" and the democratic law would then be subverted entirely.
Per your final para, most people do know infringement (no one 'took' anything, it's a copy) is not allowed [tortuous]. But, Fair Use very rightly allows copying for parody, reporting, education and similar purposes. They also know that no matter what you try to claim about not using images of your product, news and review, parody and education _are still allowed_ (not in all jurisdictions, however).
The established precedent is n that a browsewrap license needs affirmative action - checkbox, click-thru/interstitial, etc. - this precedent means nothing written in the license is pertinent, the viewer isn't party to the contract.