I am intrigued by the antipathy that is often expressed toward Airbnb in the very circles where technological changes is heartily approved. Much of this antipathy is centered around the issue of persons who use the service to circumvent local laws and regulations governing hotel and rental units, with the complaint being that illicit profiteers should be suitably punished and (impliedly) so should those whose services allegedly abet them. This piece makes that complaint without stating it directly dramatizing the fact that such a person is there, in the flesh, exploiting the system, while stating that Airbnb wants to deny his existence.
Legally speaking, Airbnb is like YouTube and similar services in offering a service that is perfectly legal to do in proper cases and that can be done today to the immeasurable benefit of many in ways that could not even have been dreamed of in the pre-internet age. When the service is used legally and properly, it transforms how millions of people do things in their lives and does so for the better: in YouTube's case, as an outlet for video display and in Airbnb's, as a way of helping all sorts of people make more efficient use of their residential holdings. When the service is misused, however, others can be hurt: in YouTube's case, with persons posting and potentially profiting by infringing the copyrights of others; in Airbnb's, with persons attempting to circumvent laws regulating uses of commercial rental space. In each case, there is legitimate reason for many to complain of the misuses because they hurt people and people react to being hurt, and the law has measures in place to punish the direct malefactors in various ways. Yet what does this mean, legally speaking, for the provider of a lawful and, indeed, exceedingly useful service that is seen to profit in part from the activities of those who not only use their service legally but also from those who do not.
When you get to such cases, you arrive at the intersection of law with public policy. Unless one is to bar technological progress and the change that it brings altogether, one must devise rules to address the illegal uses that are bad while preserving incentives to promote the technological progress that is good.
In the case of YouTube, this was done through DMCA, which (whatever its other problems) did a pretty good job of setting up safe harbors that enable services such as YouTube to continue to do what they do without incurring liabilities for the wrongs of malefactors while at the same time requiring them to build in safeguards to protect the rights of those who might be hurt by their wrongs. This was not an easy task and even today the courts are sorting through the frictions occurring at the edges. But, though not perfect, the law has set up fundamental rules that, in the end, have managed to curb a good number of the wrongs while enabling a worthwhile service to survive and prosper.
In the case of Airbnb, the fights are occurring at the local level and are at an early stage. As the players sort through the policy issues, though, the same sort of primary issue needs to be addressed as happened with YouTube in the video streaming area: how can the rights of victims of third-party wrongdoers be protected without barring or significantly impairing the new-found value for many in using a great new service wrought by technological advances (and, of course, by the skills and talents of those who have built the service)?
I don't know the New York rental market at all and have nothing to say about how the issue is best resolved for the various persons affected by Airbnb's service there. I sense intuitively, though, that things like "15% across-the-board tax" are innately retrograde solutions that would serve to choke the beneficial and legal side of the service. Occasional users really are not in the business of providing hotel lodgings and it is a pretty big leap to say that they should be required to pay taxes as if they were. Or to require them to be subjected to liabilities and risks in ways that hotels are. These "solutions" are really just a way of governmental regulators, should they adopt the, acting on behalf of some narrow lobbing interest or other to choke a service that benefits countless others. They are overkill and would be the same as if Congress, at the federal level, had passed laws saying that YouTube-style services should be banned because they can facilitate copyright infringement that hurts others. That sort of "solution" would have been folly in our digital age and so too would any overkill-style governmental solution affecting any beneficial and innovative technologically-driven service that can come about by linking what people have to offer with what people need to use, and that includes Airbnb. Many other such services can easily follow (the "Airbnb for food" or the "Airbnb for whatever"). Do we really want to choke off the great benefits that can come from all this just because third-party abuses can arise.
The key to all this is to deal with the abuses while preserving the values conferred by the new services. If there is antipathy toward the wrongdoers, there is no basis for directing this to the innovators themselves. Why this should be happening among those who otherwise favor technological change is something that really baffles me. I for one commend Airbnb for what they are doing and for the benefits it can bring to many. If they make fortunes out of it all, so much the better. The potential third-party abuses do need to be dealt with so that innocent people are not harmed. But they need to be dealt with in narrow ways focused on the actual problems, not in blunderbuss fashion that is short-sighted and, in the long run, harmful to us all.
Somehow, every other VRBO site (such as VRBO.com) manages to comply with local laws. AirBnB doesn't--by choice. It refuses to comply with local laws because this lets it avoid the costs of compliance. Ultimately, AirBnB's competitive edge over its competitors is simply regulatory arbitrage.
This is why AirBnB generates such apathy. Take the regulatory arbitrage away and AirBnB isn't a technical startup or a market disruptor; it's just another VRBO site with pretty CSS.
They are overkill and would be the same as if Congress, at the federal level, had passed laws saying that YouTube-style services should be banned because they can facilitate copyright infringement that hurts others.
No, completely different, and as a lawyer you know this. Local issues are valid concerns for local laws. If New York wants to pass an across the board tax on temporary rentals, it is absolutely not the same as if Congress passed a country-wide ban on Youtube-style service.
The key to all this is to deal with the abuses while preserving the values conferred by the new services. If there is antipathy toward the wrongdoers, there is no basis for directing this to the innovators themselves.
Existing laws already do this. And as a business that injects itself into the market governed by such laws, AirBnB has taken on the burden of complying with such laws. Moreover, AirBnB isn't an innovator--it's a copycat. The only innovation AirBnB provided was sub-unit rentals (i.e., just a room or a couch), which is no longer the mainstay of its business.
Let them know. My building had an issue with a unit being offered through VRBO.com and AirBnB despite COA rules against it. VRBO.com took the posting down after I sent them a complaint with a copy of our COA rules, and they flagged it in their system so it couldn't be reposted. AirBnB did nothing, and the listing is still there. (However, the COA has since seized the unit and changed the locks since the unit owner failed to pay his COA dues or provide proof of property insurance, so any person trying to rent the unit through AirBnB will be SOL.)
That was not a legal option in our case, the covenants upon the Deed of Title were not enforceable by the impacted neighbors because an interest in the legal person that sold the lots did not convey with the lot - i. e. there was no HOA or COA. Instead, covenant enforcement would have required locating the heirs or successors of the' legal person' who platted the neighborhood and their goodwill toward enforcing covenants some thirty five years later, assuming such use was against the covenants upon the Deed of Title.
Our case was not a private dispute, or rather it was intractable as one, and in any event the use was illegal. Thus it took overcoming the normal bureaucratic wall of mud at the enforcement arm of the city zoning department and eventually offering testimony before Judge Jim* in Municipal Court on a Tuesday afternoon last spring.
*Judge Jim had been the Miss June's diforce attorney several years before his election And a fellow Rotarian of another testifying neighbor.
In all of those details, I don't see any indication that VRBO continued a listing that it knew to be illegal. Sometimes the legal process just takes a long time. Short-circuiting the process doesn't serve the interests of justice.
I rarely use airbnb because it's so hard to find non-couch-surfing situations. And I think you are clearly understating the ingenuity and improvements that airbnb has brought to the industry.
You may be guilty of making a false equivalency between YouTube and AirBnB. Both are online, both are operating in legal grey zones. That does not mean antipathy toward one must necessarily be the same as antipathy toward another. Copyright might have been overdue for a significant rethinking. That doesn't mean that property rights are equivalently overdue.
AirBnB threatens a vastly wider swath of people than YouTube ever did. If you don't understand why people do not want to share a neighborhood or a residential tower with transients, perhaps you've never had to deal with the fallout and quality of life issues. Ever had to deal with bedbugs? I think I'd rather be stabbed and spend a day in the ER than have to deal with them again.
Unlike YouTube, which has tons of legitimate uses for folks uploading their own content, Airbnb is basically built on the illegal uses in its major markets like NYC. The places in NYC on Airbnb that are illegal aren't some annoying minority. Every single offering on Airbnb that is for less than 30 days and is not operated by a licensed hotel is illegal. Every single one. Unlike YouTube which has significant legitimate uses in all markets based on original content (and is a majority of what YouTube is used for), Airbnb has no legal uses in NYC for sublets of less than 30 days.
If Airbnb wanted to operate legally and protect the rights of its legitimate customers while still preventing illegal activities (as you are suggesting they do), it would only permit rentals of 30 days or more unless the 'host' has a hotel license and the proper permits. The simple fact is that Airbnb knows its business in NYC is nearly entirely built on illegal rentals and doesn't care.
Ah, I didn't realize that Airbnb scored that narrow legal victory on appeal (which may still get challenged) in September. So, for the moment, own room and shared room rentals are legal in NYC as long as the owner is present the entire time the 'guest' (renter) is there.
A quick search for a room in Manhattan for a single weeknight next week shows that:
Shared room: 116
Own room: 819
Entire place: 911
My original point stands, though. About 1/2 of Airbnb listings in NYC are illegal and Airbnb is fully aware of that fact yet still profiting from it. If, as the original comment claimed, Airbnb was interested in operating full legally, they could simply disallow "Entire Place" listings in NY for less than 30 days if the 'landlord' does not have a hotel license.
About 1/2 of Airbnb listings in NYC are illegal and Airbnb is fully aware of that fact yet still profiting from it.
Good. We should all strive to break at least 2 or 3 "laws" a day. It builds character.
It's also good for reminding the jack-boots who run the government that We The People are still the ultimate source of political power and that we aren't going to just roll over and accept their totalitarian bullshit.
The government is we the people, the jack-boots are a reflection of us chosen from among us. This us vs them thing is childish, we are them and they are us. This totalitarian bullshit exists because we mostly like it that way, if we didn't it wouldn't be so. Blame your fellow citizens rather than this made up them you've invented.
You seem to be an example of me, 5 years ago, when I believed all the rules and laws were there because that's what "the people" wanted and not how society and laws are actually put in place, and for what purpose...
A healthy skepticism of the status quo would do you good in life.
I do quite fine in life thank you, and it's never about what the people want and never has been, it's about what the people allow. The government is made up of the people, it's not us vs them, it's just us.
The government is we the people, the jack-boots are a reflection of us chosen from among us
Talk about childish... sheesh. That might be true in principle, but in practice it's anything but. There is plenty of evidence that our government does not reflect the "will of the people" in many areas, and that's even IF you accept the idea that "the will of the people" means anything and conveniently overlook the "tyranny of the majority".
Don't give me this crap that our government has some sort of legitimacy just because we go through the charade of voting and what-not every so often.
No one said anything about the will of the people or legitimacy, but since you're unable to respond to what I actually said and clearly are just repeating some anti-government rant you're accustomed to barfing out, I won't waste my time.
No one said anything about the will of the people or legitimacy
Didn't they? Hmmm...
respond to what I actually said
Glad to see that you aren't actually interested in digging deeper and examining issues that lie underneath the surface. Sure, let's all be pedantic twits and focus on the words and not the meaning. That'll make everything better!
Yes, it would make everything better because people like you would stop being so presumptuous as to think you're a better judge of what I mean than me. The world needs more pendants and less of you.
Right. And we the people don't want other people turning our apartment buildings -- our homes we live in -- into hotel rooms with the associated noise, security, privacy, and sanitation issues. That's why we have these laws in place.
Contracts can handle all of those issues quite well. Clearly if you own a building, and I lease a room from you, I lease it under terms you set. Violating those terms would be a breach of contract and valid grounds for terminating said contract... I doubt much of anybody would contest that.
But, OTOH, to suggest that we need a law against it, and to bring to bear the weight of "government" and the threat of force backed by men (many men) with guns (big guns), over sub-letting a room? Pure hogwash.
Yet the temporary housing market in NYC (and probably in other places) is deeply, fundamentally broken-on-purpose. Public perception attributes this to the actions of a hated group of entrenched stakeholders (landlords/hoteliers/etc) who use their economic power to buy political muscle and distort the market to screw the common man.
This public perception is perhaps near-isomorphic with reality in the most extreme cities, which is precisely where AirBnB is the strongest. Regulatory objections aside, this suggests they are a boots-on-the-ground solution to a real pain point.
At what point must the law be recalibrated to follow norms and good sense?
Airbnb creates the painpoint of a hotel business being created in our apartment builds - our homes that we live in - against our will (and against the law, the lease we signed, and the lease the offender signed), with all of the noise, sanitation, safety, and privacy issues that go along with it. It's a destructive practice that comes at the expense of the folks who actually live here.
The difference between AirBnB and YouTube is obvious. There are vast arrays of ways in which the average person can use YouTube without any question that such uses are legal.
Conversly, there are very few ways in which the average person - whether renter or rented, can use AirBnB in a way that is unquestionably legal. Few local jurisdictions allow the sort of transactions AirBnB is built upon facilitating, and even fewer allow such use without at least some minimal regulatory oversight such as business licenses and tax reporting.
The reason is the same as for other land use issues, adjoining and nearby properties are effected and real property cannot be moved. Transient lodging uses place unique stresses on a community, and their benefits tend not to accrue to nearby properties with orthogonal uses.
The better analogy would be Craigslist if Craigslist only advertised prostitution related material. Then we would stop pretending that there is wide spread legality and focus in on whether existing laws make sense, and striving to change them where they don't.
grellas writes:
> When you get to such cases, you arrive at the intersection of law with public policy.
you replied:
> The better analogy would be Craigslist if Craigslist only advertised prostitution related material.
My, what a big hammer you have! We've now equated avoidance of hospitality taxes on a legal and moral scale with facilitating prostitution. I'm all for the rule of law, but these days that means keeping as close an eye on the law itself as for potential lawbreakers.
Your big hammer, of course, completely dodges the nuance that grellas was getting to. Laws are created and implemented in a context. What we'be seen in recent decades with the MP3 revolution, Uber, YouTube, and ostensibly services like AirBnB are business models that are matched poorly to existing law and precedent. That is, the context has changed. Neither extreme -- throwing out The Law entirely, nor draconian implmentation of The Law -- is really a suitable response in most cases. I think Uber is a particularly relevant example, as it's been thrust directly into the midst of innovating in an existing class of business, occasionally at odds with local laws, regulations, and incumbent businesses.
To this situation, AirBnB has put forth its case that it facilitates uptake of temporarily vacant lodgings. There are good arguments as to the social benefit this provides. Imagine where AirBnB and similar services are so successful that they curb construction of dedicated hotel space. As a society we've then managed to curb unnecessary resource use. I would argue that truly occasional use of the service in this regard has little to no impact on the associated community.
However, I also agree with your comments about transient lodging and its impacts on communities. There've been a few good essays on this problem in the NYC area in recent years, but from the angle of transient owners. IMO, The Man Who Doesn't Exist falls clearly into the category of "transient facilitator". There's not even the ostensible intent to live in these properties, damn the excess, but just to use them as part of a business strategy. And there's our nuance. Some users of AirBnB are engaging in activity that steps over the line. But the law currently doesn't have any nuance to distinguish between AirBnB's stated business model and the occasional "transient facilitator" using the service.
And thus the earthquakes at the fault line between law and society's shifts rolls on.
Amongst other things, I think a fair number of us have had asshole neighbors, at one point or another -- or several.
Any service that appears to increase that likelihood, I will oppose.
And no, I don't think it should be up to me to individually invest in pursuing each and every case -- particularly when there may be a new case every few days or weeks or I don't know when.
Real, stable tenants (hopefully) have an investment in keeping or finding peace with their community. Or, they can be compelled to do so.
Hotels cost more. Some of that may be "bad", but there is also a reason -- it costs more to deal effectively with transient populations.
From my perspective.
P.S. There is also the security factor. I don't want to live in a "hotel" where the faces change every day and I end up not knowing what the fuck is going on.
> Legally speaking, Airbnb is like YouTube and similar services in offering a service that is perfectly legal to do in proper cases
Is there actually a legal use case? I can imagine that this law is virtually unenforceable against private individuals renting out a spare room for a few days, but I suspect it still (notionally) applies.
My antipathy towards AirBNB comes because my experiments using AirBNB exposed me to:
- hosts using fake names
- hosts using fake addresses
- hosts giving deeply inaccurate descriptions
- hosts telling me that the super might swing by, and I should introduce myself as (some other name) friend of (another name I'd never heard) if I ran into him.
- neighbors of the unit giving me the stink eye, presumably because of what other guests had done.
My personal experience leads me to believe that AirBNB is, at it's heart, a platform that is built to create negative externalities. The processes in place to correct these issues are non-existent, which indicates to me that AirBNB knows this, and does not care.
Legally speaking, Airbnb is like YouTube and similar services in offering a service that is perfectly legal to do in proper cases and that can be done today to the immeasurable benefit of many in ways that could not even have been dreamed of in the pre-internet age. When the service is used legally and properly, it transforms how millions of people do things in their lives and does so for the better: in YouTube's case, as an outlet for video display and in Airbnb's, as a way of helping all sorts of people make more efficient use of their residential holdings. When the service is misused, however, others can be hurt: in YouTube's case, with persons posting and potentially profiting by infringing the copyrights of others; in Airbnb's, with persons attempting to circumvent laws regulating uses of commercial rental space. In each case, there is legitimate reason for many to complain of the misuses because they hurt people and people react to being hurt, and the law has measures in place to punish the direct malefactors in various ways. Yet what does this mean, legally speaking, for the provider of a lawful and, indeed, exceedingly useful service that is seen to profit in part from the activities of those who not only use their service legally but also from those who do not.
When you get to such cases, you arrive at the intersection of law with public policy. Unless one is to bar technological progress and the change that it brings altogether, one must devise rules to address the illegal uses that are bad while preserving incentives to promote the technological progress that is good.
In the case of YouTube, this was done through DMCA, which (whatever its other problems) did a pretty good job of setting up safe harbors that enable services such as YouTube to continue to do what they do without incurring liabilities for the wrongs of malefactors while at the same time requiring them to build in safeguards to protect the rights of those who might be hurt by their wrongs. This was not an easy task and even today the courts are sorting through the frictions occurring at the edges. But, though not perfect, the law has set up fundamental rules that, in the end, have managed to curb a good number of the wrongs while enabling a worthwhile service to survive and prosper.
In the case of Airbnb, the fights are occurring at the local level and are at an early stage. As the players sort through the policy issues, though, the same sort of primary issue needs to be addressed as happened with YouTube in the video streaming area: how can the rights of victims of third-party wrongdoers be protected without barring or significantly impairing the new-found value for many in using a great new service wrought by technological advances (and, of course, by the skills and talents of those who have built the service)?
I don't know the New York rental market at all and have nothing to say about how the issue is best resolved for the various persons affected by Airbnb's service there. I sense intuitively, though, that things like "15% across-the-board tax" are innately retrograde solutions that would serve to choke the beneficial and legal side of the service. Occasional users really are not in the business of providing hotel lodgings and it is a pretty big leap to say that they should be required to pay taxes as if they were. Or to require them to be subjected to liabilities and risks in ways that hotels are. These "solutions" are really just a way of governmental regulators, should they adopt the, acting on behalf of some narrow lobbing interest or other to choke a service that benefits countless others. They are overkill and would be the same as if Congress, at the federal level, had passed laws saying that YouTube-style services should be banned because they can facilitate copyright infringement that hurts others. That sort of "solution" would have been folly in our digital age and so too would any overkill-style governmental solution affecting any beneficial and innovative technologically-driven service that can come about by linking what people have to offer with what people need to use, and that includes Airbnb. Many other such services can easily follow (the "Airbnb for food" or the "Airbnb for whatever"). Do we really want to choke off the great benefits that can come from all this just because third-party abuses can arise.
The key to all this is to deal with the abuses while preserving the values conferred by the new services. If there is antipathy toward the wrongdoers, there is no basis for directing this to the innovators themselves. Why this should be happening among those who otherwise favor technological change is something that really baffles me. I for one commend Airbnb for what they are doing and for the benefits it can bring to many. If they make fortunes out of it all, so much the better. The potential third-party abuses do need to be dealt with so that innocent people are not harmed. But they need to be dealt with in narrow ways focused on the actual problems, not in blunderbuss fashion that is short-sighted and, in the long run, harmful to us all.