Craigslist and Craig Newmark, specifically, have been very involved in being good corporate citizens on the internet. Craig was one of the key players in stopping SOPA, and has been involved in a number of other key internet activism campaigns, including the fight against CISPA. That's part of the reason we were so surprised and disappointed last year to see Craigslist seek to abuse
both copyright law and the CFAA to go after a couple of sites that added a layer of value on top of Craigslist. The key target seemed to be Padmapper, a site that combined data from Craigslist and other sources to make searches for real estate much more useful (adding maps and other data). Those results did not compete with Craigslist but layered more info on top, driving interested people right back to Craigslist. After Craigslist threatened Padmapper for scraping its site, Padmapper switched to using a third party, 3taps, which had figured out a way to get data from Craigslist, and Padmapper just used that instead.
In response, Craigslist sued them both (and another site that was using 3taps as well) making some highly questionable claims about how this was both copyright infringement and a CFAA violation because it violated its terms of service. The copyright claim seemed particularly bizarre, because Craigslist appeared to be claiming copyright on posts made by others
, something that was obviously ridiculous. Making things even more farcical, Craigslist then tried to cover this up with a click through notice on the site telling visitors that when you post on Craigslist you're granting an exclusive license
to Craigslist -- meaning you're effectively giving it control over your copyright. After that raised significant backlash, including from the NY Times
, Craigslist backed down
on that one point.
But the lawsuit itself has continued and the judge recently ruled on the motions to dismiss
the lawsuit from 3taps and Padmapper. The ruling is a mixed bag, but mostly bad. First we'll start with the tiny "good" part, though: the court did dismiss the general copyright claims
Craigslist was making over everyone's posts on its site (outside that time period discussed above where Craigslist said it wanted an exclusive license).
The meaning of the phrase “You also expressly grant and
assign to [Craigslist] all rights” was the subject of some debate at the hearing on these
motions, but the “all rights” language relates specifically to enforcement rights–not rights to
the content of the posts. The language assigning rights to the content did not use the phrase
“all rights,” and did not specify that the rights granted were “exclusive.” Craigslist provides
no authority for the proposition that an ambiguous grant of rights is presumptively exclusive,
and the Court declines to read that term into the terms that Craigslist itself drafted
Basically, it says that Craigslist's regular terms of service didn't grant Craigslist an exclusive license, which is necessary for a lawsuit over the copyrights.
But, in the long run, that's a small victory. The court does say that Craigslist has a copyright in the "compilation," claiming that adding geographic information is somehow creative.
Craigslist has alleged that its “classified ad service is organized
first by geographic area, and then by category of product or service,” with these categories
organized in “a list designed and presented by craigslist.”... Construing the
relevant allegations in Craigslist’s favor at this early stage in the proceedings, the Court
concludes that Craigslist, in “deciding which categories to include and under what name,”
... “display[ed] some minimal level of creativity,”
Ick. I have trouble seeing how that kind of activity raises to the level of creativity protected by copyright, so hopefully later in the process the court will reject this concept. Now, the next bad part of the ruling: the court says that Craigslist does
actually have a valid copyright in the posts for those few short weeks when it had that clickthrough "reminding" people that it had the exclusive right. I still don't see how this is possible, since an exclusive license is supposed to require a written confirmation, not clicking through on an oddly worded "reminder." But, the court twisted some things around to say this is okay. I've read this over a few times and it still doesn't make any sense.
grant an exclusive license, somehow makes the terms grant an exclusive license. I don't see how that's possible, especially as there's no explicit or written agreement from the user to assign the exclusive license. Even though it was just written as a "confirmation," the court says that "it is reasonable to infer that a Craigslist user would understand that this "confirmation" effected a transfer of rights." But why? How could a statement that is written as if it reminds you of something actually be an official decision to transfer rights? Here's what the reminder specifically said:
Clicking “Continue” confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.
That certainly sounds like a reminder of an existing situation and not
an official agreement to transfer rights. But the court seems to think people will realize that clicking that single button is giving up entirely the rights to their own copyrights to Craigslist. That seems ripe for revisiting...
The impact of this -- even if it only applies to posts from July 16, 2012 through August 8, 2012 -- could be huge. As the EFF notes this could create serious problems
So, if you posted a craigslist ad while this provision was live, you're out of luck. craigslist's ownership claims over user posts could potentially mean that the affected users can’t republish their ads on multiple services without risking a claim of infringement. And while not every craigslist post is going to go viral and have real value outside the original context (like the “Jesus Tap-Dancing Christ” car ad), users still need the right to post and repost their material in a variety of venues. Moreover, the exclusive license provision calls into question craigslist’s compatibility with common licensing schemes, like the Creative Commons ShareAlike license or the GNU Free Documentation License for the time that provision was valid. And, worse still: craigslist’s actions, and the court's ruling, only increases the chance that other websites will start demanding ownership of the content you post there.
So, a tiny bit of good, but a lot bad on the copyright front.
On the CFAA front... it's the same basic story. The court rejects the idea that merely accessing the website is a CFAA violation (thanks to the Nosal ruling
). It rejects Craigslist's claims that it was blocking access, rather than uses (which is the core of the Nosal ruling), noting correctly that within Craigslist's terms, all of the restrictions are about uses.
The Court need not decide whether violating “restrictions on access to information”
Craigslist’s TOU contain only “use” restrictions, not true “access” restrictions as the term is
used in Nosal. Although the TOU include a section titled “Unauthorized Access and
Activities,” parts of which are framed in terms of “access,” these restrictions depend entirely
on the accessor’s purpose. TOU at 6-7 (prohibiting, e.g., “access to or use of craigslist to
design, develop, test, . . . or otherwise make available any program” that interacts with
That part is good. But... unfortunately, the CFAA claims stay alive on two counts. First, because Craigslist sent a cease and desist letter, the court says that violating that letter is unauthorized access. That seems extreme and ridiculous in the same way the argument that violating a terms of service violates the CFAA. The second issue is that Craigslist blocked the IP of 3taps... and 3taps (shocker) changed their IP
. The court actually argues that changing your IP address when it was blocked is a violation of the CFAA. This is unfortunately similar to one of the arguments made against Aaron Swartz.
Aside from the TOU, however, Craigslist specifically denied authorization to use the
website “for any purposes” in its cease and desist letters, Kao Decl. Ex. A, and also used
technological measures to block access from IP addresses associated with 3Taps, which Craigslist alleges that 3Taps bypassed by using different IP addresses and proxy servers to conceal its identity. Assuming that the CFAA encompasses information
generally available to the public such as Craigslist’s website, Defendants’ continued use of Craigslist after the clear statements regarding authorization in the cease and desist letters and
the technological measures to block them constitutes unauthorized access under the statute.
The EFF points out how ridiculous both of these claims are. On the cease and desist:
Cease and Desist Letters Should Not Make Access to a Website Criminal
The CFAA is both a civil and a criminal statute. This is a civil case, but has criminal ramifications. While the court looked at the earlier Facebook v. Power Ventures case, it misread a key holding. There, the court recognized that imposing criminal liability based on the “receipt of a cease and desist letter would create a constitutionally untenable situation.” This would put too much power in the hands of private parties to decide what a crime would be.
And on the IP address change, EFF points out how changing IP addresses is a common thing that happens all the time:
Changing IP Addresses Is Not Hacking
The court’s ruling on IP address blocking is dangerous because it could criminalize innocent behavior.
[....] There is nothing inherently improper, never mind unlawful, about switching IP addresses and thereby avoiding IP address blocking. Moreover, when a website is available without restriction to the public, a private party should not be able turn access into a crime to back up owner preferences or terms of service with the weight of criminal authority.
Given all that, there are very serious problems with this ruling, and the fact that Craigslist is driving such dangerous precedents is quite upsetting for a company that has been so involved and so at the forefront of helping fight back against such abuses of the law. Over at Freedom to Tinker, Steve Schultze asks Craigslist to dismiss the case with prejudice
, and I second that call.
If Craig Newmark and Craigslist move forward with this lawsuit, which has the possibility of creating very dangerous precedents concerning both copyright law and the CFAA, it will do tremendous harm to Craigslist's reputation and standing in the wider internet community. As Schultze notes, moving forward at this point, given the details in the latest ruling will just make Craig look petty and vindictive. I know Craig and he's anything but vindictive and petty. Destroying his reputation and acting out just because a couple of sites tried to make Craigslist more useful? It just doesn't make any sense at all. Hopefully Craig will realize this as well, and will call off his legal attack dogs, and think twice about future lawsuits of this nature.