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

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,”

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.

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.

The Court need not decide whether violating “restrictions on access to information” contained in a website’s terms of use can ever support liability under the CFAA, because 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 Craigslist).

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.

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.

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.

“I’m glad something good came out of all this,” says PadMapper creator Eric DeMenthon. “Lots of people wrote to them about the PadMapper cease and desist [letter], so maybe that convinced them that it was worthwhile to do some mapping themselves.

One, a site called Craigs Little Buddy, could search multiple Craigslist cities at once — a simple feature that Craigslist doesn’t offer. Another site, Craigsly, helped people set up e-mail alerts when a certain type of listing, like a specific car or apartment for sale, was posted in their area. Another, Ziink Craigslist Helper, which offered a free browser plug-in that made navigating listings easier, was also shut down by Craigslist lawyers.

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.

You also expressly grant and assign to CL all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).

Rather, the state of daily newspaper journalism only proves English majors should not be allowed to make business decisions. Only English majors could give their product away (i.e., online), then be surprised to see revenues decline.

SB 6251 would effectively coerce, by threat of felony prosecution, online service providers to become censors of third-party users' content by threatening five years imprisonment and a $10,000 fine per violation against anyone who knowingly publishes, disseminates or displays or anyone who “indirectly” “causes” the publication, dissemination, or display of content that contains an explicit or even “implicit” offer of any sexual contact for “something of value” in Washington if the content includes an image that turns out to be of a minor. Because of its expansive language (i.e., “indirectly” “causes”), the law could be applied not only to online classified ad services like Backpage.com but also to any web site that provides access to third-party content, including user comments, reviews, chats, and discussion forums, and to social networking sites, search engines, Internet service providers, and more. A law that takes such an overbroad approach is of serious concern to the Internet Archive, which aims to serve as a library for the Internet, and accordingly, houses more than 150 billion web pages archived since 1996.

The law expressly states that it is not a defense that the defendant did not know that the image was of a minor. Instead, to avoid prosecution, the defendant must obtain governmental or educational identification for the person(s) depicted in the post (notably, even if that ID does not contain a photograph). This means that service providers – no matter where headquartered or operated – may be asked to review each and every piece of third-party content accessible through their services to determine whether the content is an “implicit” ad for a commercial sex act in Washington, whether it includes a depiction of a person, and, if so, obtain and maintain a record of the person’s ID. These obligations would severely impede the practice of hosting third-party content online.

“But you’re heading down a route we’ve seen before – giving the opportunity to extract value to somebody else in an area that should be our own – so Flipboard is problematic.”

Closing down the leading Web site used by traffickers would complicate their lives, and after so many years of girls being trafficked on this site, it’s time to hold owners accountable.

Craigslist is making a really weak DMCA claim here. It's claiming that its various anti-spam technologies (captchas, phone verification, etc.) act as "technological protection measures" that Red Trumpet is circumventing... and thus running afoul of the DMCA's anti-circumvention rules. But the circumvention has nothing to do with violating Craigslist's "copyright," though the lawsuit makes a half-hearted attempt to claim that it does.

Then, there's the trademark claims. There are a few different ones, but it argues that Red Trumpet is violating Craigslist's trademark by mentioning Craigslist on its website and in its ads. While again, you can see why this is annoying to Craigslist, if the company is accurately describing services it provides (the ability to post on Craigslist) it's difficult to see the "confusion" being caused. The ad in question doesn't appear to imply any endorsement at all by Craigslist. And, does Craigslist really want to open up a can of worms concerning trademarks being used in ads? After all, there must be a ton of posts on Craigslist that mention trademarks.

Finally, there's Craigslist claiming that Red Trumpet violates the Computer Fraud and Abuse Act by accessing its site despite violating its terms of use. Does this sound familiar? It's the same argument that was used to try to punish Lori Drew, and was recently tossed out by a judge. Basically, it's claiming that if you happen to violate the terms of use of a site, and then still access the site, you've effectively "hacked" into the site. This is a really bad reading of the law, which is why it was good that the Drew ruling got tossed out. So why is Craigslist trying to re-establish that as a rule?

Such a letter, it seems, has just been written [pdf]. For the public good, I am providing my editing services free of charge to Sheriff Arpaio, in order to clarify what I assume was his intended point, since shaming Craigslist for helping you get doggy-diddlers off the street is obviously nonsensical. Sheriff Arpaio's complete letter follows, with my recommended edits marked in bold or strikethrough.

Dear Mr. Buckmaster:

Maricopa County Sheriff's Office detectives conducted an undercover investigation that spanned several months during 2010 and 2011. This investigation resulted in the arrest of two individuals for conspiracy to commit bestiality. There is an ongoing investigation of several others. Craigslist provided the forum for these individuals to post, in a very blatant manner, their intentions. We are able to locate and communicate with these suspects using Craigslist. Thank you.

During the course of the investigation numerous other posts were discovered in the Personals sections of "men seeking men" and "casual encounters". These posts included specific description of criminal acts. They were often accompanied by graphic photographs of a fully nude male in various pornographic situations. This constitutes excellent evidence for the State. Again, thank you.

It is clear that the "self-policing" protocol Craigslist relies upon to prevent this activity is inadequate, but its mere existence is already going above and beyond your legal duty. While Not only is Craigslist may not be committing a criminal act, you are undoubtedly providing a mechanism to facilitate obvious criminal activity our law enforcement efforts. Simply The fact that you continue posting your "Terms of Use" and providing a mechanism for posters to do YOUR job, and claiming that even though Craigslist is legally "not responsible for the content" is thoroughly disappointing impressive.

As the Sheriff of one of the largest law enforcement agencies in the nation, I, not you, am responsible for the conduct of my entire organization enforcing the law. In this regard, I strongly encourage Craigslist and you, specifically, Mr. Buckmaster, to accept greater responsibility for your organization my personal thanks for helping us get two perverts off the streets.

I ask that you re-evaluate the security measures that you utilize to prevent this type of activity and take the necessary action to improve your procedure. Now if you'll excuse me, I have some pink underwear to sell.

Sincerely,
Joseph M. Arpaio
Sheriff

"With respect to newspapers, there are editors, I am sure, who take precautions to make sure they’re not getting into the business of child exploitation or human trafficking and so on" in their classified ads, Mr. Nicholson said after the Conservative caucus meeting on Wednesday. "It seems to me with Craigslist there's no regulation at all as to what goes on."

"I support changes clarifying and strengthening the law to hold websites accountable when they knowingly enable or promote illegal activity."

The logical extension of what Blumenthal & Co say they want is a world where even they couldn't use Facebook, Twitter and Flickr to connect with their constituents, for fear that one of them (or their political enemies) would plant incriminating material they could then be sued over.

And even if they were successful, and didn't care about that consequences, would ads for prostitution disappear from the face of the earth? Not likely. The same ads that Craigslist is pilloried for dominate the back pages of alternative weeklies. The printed Yellow Pages carries ads for "Escort Services." You can find them in the Village Voice-owned Backpages.com. And beyond the media world, it's not very hard to find "Massage" parlors in any major U.S. city, where I'd venture to guess, you are more likely to find human-trafficking than you were anywhere on Craigslist. And back in the relative shadows from whence they came would only exploiters of women and children would only have more power.

The collateral damage of a wrong-headed pursuit Craigslist is an assault on the open internet itself.

"Every pimp has a MySpace page," Frundt testified, adding that ads also show up on Backpages.com. "Every john uses a john board and posts information on where to buy children."

"This has been going on for many years. We must do something about our children being sold on the internet."