Craigslist's Dumb Lawsuit Against Spam Tools Provider

from the what-are-they-thinking? dept

It's hard to come up with an adjective to describe Craigslist's decision to sue Red Trumpet other than "dumb." Nothing good will come of this lawsuit for a variety of reasons, and Craigslist is asking for trouble in filing it. Now, I can understand why it sounded like a good idea. Last year, we wrote about the increasing problem of spam on Craigslist, highlighting how a variety of spammers had figured out ways around each attempt by Craiglist to stop the spam. And, yes, we absolutely agree that spam on Craigslist is a problem and a nuisance, and it's good that Craigslist is working hard to try to stop it. But that doesn't make this lawsuit make sense. The full lawsuit is below (it's a bit long), and highlights all of the different claims that Craigslist is making against Red Trumpet, a company that offers tools and services to help advertisers post messages on Craigslist (some of which may be spammy, though, certainly not all):
So what are the problems? Well, as Eric Goldman notes, Craigslist is "playing with fire" on a variety of legal doctrines, almost all of which could come back to bite Craigslist. For example, Craigslist is blaming Red Trumpet -- a service provider -- for the actions of its users in spamming the site. Think about that for a second. For the past couple of years, law enforcement officials have been trying to use that exact argument against Craigslist over things like prostitution posts on the site -- to which Craigslist has always put forth a strong defense that as a service provider (under Section 230 of the CDA) it's not liable for the actions of its users. Does Craigslist really want to try to establish a precedent that would chip away at Section 230 protections?

Next, 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?

Yes, clearly, Craigslist is upset about the spam on the site -- and it should be. Plenty of users are upset about it, and Craigslist wants to help those users, help itself and stop the spam. But this particular lawsuit, with these claims, seem highly problematic -- such that even if Craigslist wins, the precedents it sets could come back to haunt Craigslist... and many other parts of the internet as well. Is Craigslist really so desperate to stop spam that it's willing to do all this other damage as well?

Filed Under: copyright, dmca, hacking, liability, safe harbors, spam, trademark
Companies: craigslist, red trumpet

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  1. identicon
    Anonymous Coward, 9 Oct 2009 @ 1:54pm

    Re: Re:

    For example, if you agree that it's wrong to hold an ISP responsible for its users making copyrighted material available, then you also have to agree that it's wrong to hold Red Trumpet responsible for selling software that its users use to spam.

    Nope, I wouldn't agree. An ISP is not actively promoting file sharing, they are not making it easier, they are not providing a software tool to do it. They are only providing a connection, no assistance.

    Craigsup was "assistance to spam". It's a very different deal and something that does not merit 230 protection.

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