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
    Mike Masnick (profile), 28 Sep 2011 @ 3:04pm

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

    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

    That has absolutely nothing to do with this case. Lots of people make money by building on the work of others, and it can and often is perfectly legal. Do you use an RSS reader? Same thing. According to you RSS should be illegal.

    Do you use Google? Google has software that is built off of works of other websites. Based on your incorrect analysis, that would be illegal.

    That's not how the law works.

    And it's also not what Craigslist is alleging.

    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.

    Did you even read the post? Craigslist has every right to try to block spam through technical means or to go after spammers legally. But I do not believe they have a legitimate software providers. They *can* go after SPAMMERS directly, but claiming third party liability of the service providers -- while making the exact same argument for why they're NOT liable for prostitution ads is both disingenuous and dangerous.

    You act as if the only option is to go after the service provider. As Craigslist itself has noted in its defense of the prostitution charges, that is false.

    The defendant has no defense and I hope that Craigslist gets him.

    Actually, he has a large number of defenses.

    He will have to defend himself against this lawsuit the second time, and he will lose. It's just that simple.

    I love it when people who get the law wrong then assume the outcome of cases.

    I just feel as though Techdirt is being manipulated here.

    That's your opinion. I disagree. I spent a fair amount of time researching this and I stand by the post 100%. You have presented no facts to change that, but a bunch of baseless and ill-informed assertions.

    The person who is selling the application that is posting all of this stuff actually committed a fairly serious violation of copyright law.

    You keep claiming that, but I don't see it at all.

    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 do not believe anything you write above is accurate. My understanding of the lawsuit is not that they're charging him with making a derivative work at all, but rather with violating the anti-circumvention provisions of the DMCA. This is an abuse of the DMCA. It's designed to block the breaking of DRM. But this isn't DRM.

    As for making use of Craigslist's code, where did you get that from? I have seen no evidence of that.

    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.

    You don't understand copyright law.

    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?

    You seem to be assuming a conclusion, that it's proper to blame the tool for the actions. I find that shameful. Do you blame Ford when someone drives recklessly too?

    This guy knew exactly what he was doing.

    Yes, building a tool to make it easier to post to Craigslist, because CL's interface sucks. In the history of software and the web, this kind of thing is quite common. Think of all those twitter tools out there, that built on Twitter. According to you, they're all illegal. You're wrong.

    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.

    You're making a lot of assumptions about CL that are simply not true. It's a big business for lots of people. Companies use it for job listings, real estate listings and many other things. A tool to manage those is quite helpful.

    Honestly, you seem to have directed your anger at the wrong person, and in the process accused me of being manipulated. That's a strong charge. I suggest you take some time and actually read the details before commenting again.

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