Craigslist Demands 'Exclusive License' On Your Posts

from the good-luck-with-that... dept

When Craigslist sued PadMapper and 3taps, we questioned the legal basis for much of the lawsuit, in particular the claim that Craigslist even could sue over copyright, when any copyrightable content is created by the end-users and not Craigslist itself. It appears that someone at Craigslist realized that it was somewhere very close to the Righthaven line in claiming a bare right to sue over someone else's work, and made a tweak, demanding "exclusive" rights.

I first saw this via Slashdot on the Baligu blog, and was trying to go through the legal implications, but thankfully, Tim Lee over at Ars Technica did all the heavy lifting for us in speaking to IP lawyers James Grimmelmann and Mark Lyon who are quite skeptical of this move.

What's odd is that this "change" isn't even to its terms of use, which don't actually claim an exclusive license. Instead, the company has just added text to the posting page saying that you are granting the company such a right:
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.
The theory, as Lee notes, is probably that by more forcefully claiming exclusive rights, perhaps it can get over the hump and have the right to actually enforce those copyrights -- but that legal theory is speculative at best.

It's kind of interesting, because someone could also potentially argue that this statement contradicts the company's own terms of use since they're different but perhaps more interesting are the wider legal questions raised by this -- including what happens if you, the user, post your classified ad to any other site. Craigslist seems to be claiming that it can go after those other sites (and, um, potentially you, I think...) for reposting "its" work. That's crazy and something that completely goes against Craigslist's standard "user-friendly" approach to everything.

Once again, this is showing how Craigslist's pursuit of these kinds of legal issues really seems to go against what made Craigslist so successful, turning the company into much more of a cranky legal bully. Lots of companies that start out innovative and open, do later change and flip sides on things like this, but Craigslist always seemed like the kind of company that would stay on the right side of the "evil line." It's too bad to see that it seems to be so aggressively diving over to the copyright bully side of the line.

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  1. identicon
    Anonymous Coward, 2 Aug 2012 @ 10:13am

    Re: Re: Re: Chicken or egg?

    But signatures can be done electronically, no?

    See 15 USC 7001.

    But compare the electronic signature cases involving a statute of frauds defense with Konigsberg v Rice (9th Cir. 1993):
    Although section 204 is often referred to as the "copyright statute of frauds," it actually differs materially from state statutes of frauds. While the latter may be satisfied by a writing not intended as a memorandum of contract, not communicated to the other party, and even made in pleadings or testimony years after the alleged agreement, see Restatement (Second) of Contracts 133 cmts. b, d (1981), section 204 may not. State statutes of frauds serve a purely evidentiary function to prevent enforcement through fraud or perjury of fictitious agreements. Thus, agreements subject to statutes of frauds may be perfectly valid, yet unenforceable without evidence of a writing.

    By contrast, a transfer of copyright is simply "not valid" without a writing. 17 U.S.C. 204(a). Section 204's writing requirement not only protects authors from fraudulent claims, but also "enhances predictability and certainty of ownership `Congress's paramount goal' when it revised the Act in 1976." Effects II; see also Jay Dratler, Jr., Intellectual Property Law: Commercial, Creative, and Industrial Propert, 6.03[3] at 6-72 (1993) (copyright statute of frauds "performs not only the usual evidentiary and cautionary functions of all statutes of frauds, but also the additional purpose of describing the bounds of intangible rights that cannot be seen or felt"); cf. Schiller & Schmidt, Inc. v. Nordisco Corp. (7th Cir.1992) (section 101's requirement of a written statement for copyright ownership of works for hire "is not merely a statute of frauds"; its second purpose is "to make the ownership of property rights in intellectual property clear and definite, so that such property will be readily marketable.").[3]


    [3]The Second Circuit has held that the note or memorandum can retroactively validate an earlier oral transfer. Eden Toys, Inc. v. Florelee Undergarment Co.(2d Cir.1982) (memorandum of transfer made within year of oral agreement and during term of exclusive license validated agreement ab initio), cited in Valente-Kritzer Video v. Pinckney (9th Cir.1989) (dicta). Given that Congress has declared oral transfers "not valid" in the absence of a writing, we have doubts about whether a later writing can validate a purported transfer that substantially predates the writing. In any case, we read the Second Circuit's rule as applying only to writings executed during the life of the purported license not, as here, many years later.

    (Pin cites omitted.)

    The upshot of this being that one circuit's opinion (e.g. 10th) holding that the sender's name on an email satisfies a state (Colo.) statute of frauds may not be a 204 signature in another circuit (e.g. 9th).

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