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. identicon
    AT, 28 Sep 2011 @ 11:12am

    This post should be taken down, Techdirt is being manipulated.

    Look, i know that improper service and default judgment seems terrible, but this person hasn't actually lost any money, the judgment will be vacated, and there will be a second lawsuit against him. These things are absolutely inevitable. Thus the defendant's encouragement of this post and the post on Reddit is just an attempt to scare Craigslist out of filing a second lawsuit after the judgment is vacated.

    Copyright is very complex. Unfortunately, copyright has been used to deal with injustice in software situations that seem to have nothing to do with copyright. but this was a violation of the law. The defendant created a device based on Craigslist and sold it for money, money he would not have made if it hadn't been for the work of the Craigslist programmers. The spammers are simply the reason why Craigslist didn't turn a blind eye, the spam is why Craigslist bothered to enforce their rights here. The defendant has no defense and I hope that Craigslist gets him. I really believe in free tools on the internet and preventing spam is a vital part of that. The defendant is clearly a fairly sophisticated programmer and knows exactly what he was doing. He will have to defend himself against this lawsuit the second time, and he will lose. It's just that simple.

    Techdirt and Reddit are being used to scare Craigslist away from the person who is being sued for legitimate reasons. I know Craigslist can be shitty but Techdirt shouldn't allow their site to be used to drum up negative publicity to fight a lawsuit.

    I just feel as though Techdirt is being manipulated here. The AMA will be taken down soon, it's not a legitimate AMA. But if it's still up, see it here:

    I think this article was planted by the defendant of this lawsuit, just like the LJ AMA.
    Basically they have a chance at preventing Craigslist from filing a second lawsuit, because they can use this improper service argument to vacate the original judgment, and in the mean time drum up lots of bad publicity for Craigslist.
    The person who is selling the application that is posting all of this stuff actually committed a fairly serious violation of copyright law.

    I have to say i even feel like it's weird that copyright applies here, but copyright is used to protect code. This is a derivative use of the Craigslist website's code. The person sold their program which was designed only for craigslist, a free site. Therefore making money off the existence of Craigslist through the derivative use of their code. I have to admit, in fairness, that the use of copyright law for programmers is a stretch but it is the law, they chose copyright over patent or any of the other options for some good reasons. The code is protected.

    I am not sure how the program works but it sends posts directly to the Craigslist submission system in some automated way. Everyone who has ever written a bot or some firefox plugin, they're in violation. That's unfortunately a problem inherent in copyright. Everyone is constantly violating copyright but it's also the only way we have to prosecute people who make bots for posting spam.
    You might say this is a perfect topic for Techdirt, but not the way they are framing it! They are ranting about improper service, not the expansive protections of copyright
    And code is more legitimate to be protected than some song written 50 years ago, at the very least. How else do you prosecute people who create and sell spam bots? I mean, if this guy isn't liable, is anyone? Are spam bots just a free for all?
    This is what the article should be about, not about whether this guy has a hard life.
    "Are spam bots illegal" is a legitimate topic, not a manipulative article that's trying to bully Craigslist into backing off of some guy who did something pretty malicious.
    Craigslist is trying to stop spam bots - it's the same reasoning as suing Limewire, but that suit was still highly successful.
    This guy knew exactly what he was doing. Who would take a site like Craigslist, designed for private individuals to deal with their personal stuff, and think "people need to have an easier time posting here!" and make money doing it without intending to aid spammers.

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