Craigslist Trying To Destroy The Life Of Someone Who Made Posting To Craigslist Easier

from the and-harming-their-own-defense-at-the-same-time dept

Two years ago, we wrote about a lawsuit by Craigslist that we classified as dumb. It was against a company called Red Trumpet who provided a service to make posting to Craigslist a bit easier. Craigslist's obvious reason for filing the lawsuit was that it was upset about the increasing amount of spam on the site, some of which uses such tools. We understand and appreciate Craigslists' efforts to keep spam off the site, but attacking third party software and service providers on questionable theories is fraught with dangers... especially for Craigslist.

After all, this is the exact same Craigslist who keeps getting accused of being liable for prostitution ads on its site. And for years, Craigslist has correctly responded that it is not legally responsible for the actions of their users -- a position we support and agree with. Thus, it seems strange and dangerous for Craigslist to then make the exact opposite argument back at other service providers. It's the kind of thing that's going to come up in a court case sooner or later.

That was the biggest problem with the lawsuit, but there were three other problems with it, including what seemed like extremely questionable uses of copyright law, trademark law and the ever-popular anti-hacking law, the Computer Fraud and Abuse Act. Here's what we wrote about all three at the time of the Red Trumpet lawsuit:
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?
I hadn't followed the case very closely after that, but it looks like the company eventually settled with Craigslist.

What I hadn't realized was that Craigslist had actually filed a bunch of similar, equally questionable, lawsuits against others. One of those others is a guy named Paul Hubert, who wrote some software that made it easier to manage your Craigslist postings. We've been in touch with Mr. Hubert... who did not find out that he was being sued at all, until months after the court already ruled in a default judgment against him. Default judgments happen when someone doesn't respond, but if you're never informed of the lawsuit, it's pretty difficult to respond at all. Hubert insists that he was never served, and the first he heard of the lawsuit was a couple months after the default judgment (for over $1.2 million) when someone tried to collect it from him.

Hubert makes it clear that his software was designed for legitimate uses of Craigslist, for those who needed better management tools. In fact, he makes it clear that he left out and/or disabled certain features if he realized they might be attractive to spammers. For example, after noticing that the Craigslist Personals section was hit with a lot of spam, and realizing that such a category probably wouldn't need such a management system, he blocked the software from posting to that category. Hubert claims that in 2007 Craig Newmark himself reached out to Hubert to ask for some details about the software. Hubert says that the emails were "encouraging" and never once did Newmark suggest any concerns or problems with the software, let alone ask Hubert to stop offering it. Hubert also notes that after running into more issues with spammers trying to use his software, he shut down the whole thing at the end of 2008.

Hubert, who is unemployed, is reasonably perplexed and upset about the whole thing. He never knew about the lawsuit, was never asked to stop offering his software (which he did anyway), and is now being told he has to pay $1.2 million which he doesn't have. He claims that the lawyer trying to collect the money has told him that Craigslist wants to "make an example" of him.

I'm greatly troubled by Craigslist's actions here. Having dealt with Craig and Jim Buckmaster a few times in the past, I reached out to them about this, and asked for any comment. It's been a couple days and no response has been forthcoming from either. From the profile page of lawyer Brian Hennessy, who appears to have represented Craigslist in both of the cases discussed here, it appears that Craigslist actually has filed a lot of other, similar cases.

I have to say that I'm pretty disappointed that Craigslist would do this. The company has usually represented a lot of the good of Silicon Valley, and to use questionable legal theories to attack various companies -- especially theories that are likely to come back to haunt Craigslist itself -- is just a bad idea. To then take it further and go after this guy who was never served and never even asked to stop -- and then pressing him for $1.2 million he doesn't have -- just feels downright shameful.

Filed Under: cfaa, copyright, default judgment, paul hubert, secondary liability, trademark
Companies: craigslist

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  1. icon
    TheOldFart (profile), 22 Sep 2011 @ 5:21pm

    Re: Re: It's for local, face to face transactions

    The point is that it's not like someone jumped up out of the blue and sued the guy, the restrictions on automated postings are in the TOU. Just because he thought Craig sounded "encouraging" doesn't let him off the hook on agreements he entered into.

    I think it would be completely different if the guy wrote a generic bit of software that could be used on multiple sites. In this case the software apparently targeted only one site. It isn't that he was carrying generic lock picking tools and they nailed him for burglary, he made a key specifically to fit one lock.

    It's the same as someone designing a piece of software with the sole purpose of automatically posting here in the discussions. How many days of crap bot postings would it take before someone started to lawyer up?

    Like it or not, you have to admit that craigslist chose the cheapest/most efficient strategy. Rather than go after the dozens/hundreds of spammers who would use his software to post automatically they went after the source of the problem.

    BTW I don't like what craigslist did but I also understand that if they don't defend their site from bots, it would turn into a spammer's paradise within a week. Twisting the DMCA sucks, and yeah it was stretched beyond any reasonable bounds but that still doesn't qualify as "trying to destroy his life".

    It sounds like the guy took the "easier to ask forgiveness than it is to get permission" route. Sometimes that backfires.

    I'm also a bit suspicious of the images of an "absolutely innocent" programmer and a "bent on destroying" empire. I think the truth lies somewhere in between there.

    The specific bits of the TOU that I'm babbling about:

    y) use any form of automated device or computer program that enables the submission of postings on craigslist without each posting being manually entered by the author thereof (an "automated posting device"), including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals.



    A "Posting Agent" is a third-party agent, service, or intermediary that offers to post Content to the Service on behalf of others. To moderate demands on craigslist's resources, you may not use a Posting Agent to post Content to the Service without express permission or license from craigslist. Correspondingly, Posting Agents are not permitted to post Content on behalf of others, to cause Content to be so posted, or otherwise access the Service to facilitate posting Content on behalf of others, except with express permission or license from craigslist.

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