Dear Craig: Voluntarily Dismiss with Prejudice

[Cross-posted on my blog, Managing Miracles]

Last summer, Craigslist filed a federal lawsuit against the company Padmapper (and some related entities). Padmapper.com is a site that, among other things, allows users to view Craigslist postings on a geographical map. It is a business premised on providing value added services to Craigslist postings — with some of that added value going back to Craigslist in the form of more users. Craigslist did not like this, and alleged a host of claims — seventeen of them, by the time they were done with the “First Amended Complaint” (FAC). Among their claims were alleged violations of copyright, trademark, breach of contract, and — surprisingly — Computer Fraud and Abuse Act (CFAA). The CFAA claims were not in the original complaint (they showed up only in the September 2012 FAC). Today, the judge ruled that some of the claims would be dismissed, but that many would survive.

I am still at a loss about why Craigslist is taking such a scorched earth tactic against a site that appears to help more people find Craigslist postings. Sure, they’re looking to make money while doing it, but that’s how much of the internet business ecosystem works. I’m particularly shocked, because Craig Newmark has been at the forefront of fighting for so much good online policy. We’ve met a few times, including the period when he was embroiled in the fight over whether or not “adult services” would do away with his CDA 230 intermediary liability. He was on the right side of SOPA/PIPA and helped to fight against over-expansive copyright. I’ve always found him to be personally friendly, thoughtful, and savvy about what makes the internet work.

Craig: Why do you care if these guys scrape Craigslist? Don’t you want to see what kind of useful tools they’ll produce? I tried your own mapping function recently (which appears to be in reaction to Padmapper) and it’s not that great. You lost your primary copyright argument already in pretrial motions, but don’t you think that it’s poor form to pursue the remaining claims at trial? The internet economy has grown out of sharing information and building better tools. Instead of trying to imitate your new “competitors,” why don’t you define an API to provide them with the data in order to encourage their work? The CFAA (and state counterpart) claims are particularly distasteful and ill-advised for reasons that we all understand. You created the site to do good in the world, but this lawsuit feels like an attempt to do well.

Those of you following along at home can see the full docket, as well as the “First Amended Complaint” by Craigslist, and today’s Order. You should read the EFF’s summary, Derek Khanna’s summary, and the DMLP summary.

The fact pattern is a bit complex, but the 17 claims can be roughly broken down into the following:
1. Copyright Infringement, and the tort of Misappropriation
2. Trademark Infringement
3. Breach of Contract claims
4. Computer Fraud and Abuse Act, it’s California counterpart, and the tort of Trespass
5. Unfair Competition

Today’s opinion does not throw out any of these claims in their entirety.

The court says that, in general, Craigslist did not obtain copyright in the user postings, so it cannot enforce them. However, in a flip-flop of policy, Craigslist added on July 16 2012 a disclaimer to all new posts stating that it gained full exclusive copyright in the post contents, only to reverse that policy on August 8. The initial move was obviously in response to their concern that the copyright claim in this lawsuit would fail, and the reversal was the result of the natural response of the internet (i.e. “this is ludicrous”). That means that we have a weird situation in which user posts for a few weeks were arguably copyrighted works of Craigslist. So, the court tosses most of the copyright claims, but there are still quite a few posts in the course of that three weeks that could qualify.

Craig: If you push forward on this claim based on the 3-week period during which your company imposed a draconian and universally hated term of use, you’ll look foolish and vindictive.

The trademark claims seem thin as well, given that in the course of using the CRAIGSLIST mark, Padmapper stated clearly that it was not CRAIGSLIST. I don’t see any reasonable likelihood of confusion… and as for dilution, really guys?

The breach of contract claims seem hard to sustain because Padmapper cannot be forcibly made party to a contract by visiting a public web site (or, at least, the Ninth Circuit generally doesn’t think so). In any case, I’m not sure what remedy comes purely out of that claim.

It appears that the bulk of what remains involves whether or not Padmapper or its alleged affiliates accessed Craigslist data in an unauthorized fashion such that it would trigger the Computer Fraud and Abuse Act or the California equivalent. There are many far-reaching negative consequences, that I am sure Craig undertands intimately, to defining “unauthorized access” broadly enough to make it into a criminal claim in this case. The EFF has it right on this issue.

Craig: You should be helping to reform the CFAA rather than helping to bastardize its use in the federal courts. It’s time to voluntarily dismiss the entire suit, with prejudice.