Craigslist Takes Aim at Website Developers

Craigslist, a company which markets itself as being a public service rather than a commercial enterprise, has filed a lawsuit against two developers who created services making it easier to use. The New York Times ran an article on Sunday describing Craigslist’s suit against Padmapper, a website that allows users to browse listings from Craigslist and other housing websites by their location on a map, and 3Taps, the company that provides PadMapper with its Craigslist data.  According to the Times, founder Craig Newmark claims that Craigslist only objects to such sites when they increase the load on the Craigslist servers, but 3Taps and PadMapper avoided this conflict by using the Google- and Bing-cached versions of the listings.

The suit brings copyright and trademark claims against 3Taps for copying Craigslist’s data, and the Craigslist layout on its subsidiary search engine craiggers. 3Taps argues that its API only uses data from Craigslist, and data is not copyrightable.  However, the visual presentation of data can be copyrightable; whether a court would find infringement would depend on the copyrightability of the presentation and the similarity of the craiggers layout, among other factors.

3Taps also includes photographs and the text of descriptions, which are copyrighted by their creators.  Though this would seem to give the original posters, not Craigslist, a claim against 3Taps, the Craigslist Terms of Use claim to give Craigslist the right to enforce copyright claims for posted content. However, the Copyright Act only allows those who have an exclusive license the right to sue for copyright infringement, something that Craigslist certainly does not have: you are free to take any post you make on Craigslist and also post it on Facebook or your blog or a competing classified site, in any form you choose.

Padmapper is accused of displaying content “identical to the craigslist postings as they appear on craigslist’s website, except for the addition of a ‘PadMapper Bar’ to the left of the ad.” In fact, it is identical to the craigslist posting because PadMapper loads the craigslist ad from craigslist in a frame, similar to how Google Images or Google Translate display pages.

Although this practice is unpopular with some web developers, it is not considered copyright infringement in the United States because Padmapper doesn’t store a copy of the content on its own servers (see Perfect 10 v., which held that linking, including framing, does not violate the Copyright Act). The only content that appears on Padmapper itself is noncopyrightable data: prices, addresses, and numbers of bedrooms and bathrooms.

What it boils down to is that Craigslist is failing to provide functionality its users want, and suing anyone else who tries. Newmark claims that it’s because the Craigslist community doesn’t want others making money off Craigslist data. But that’s clearly not true of those searching the listings, or these apps wouldn’t be so popular. And it wouldn’t make sense for those posting the listings, who presumably want as many people as possible to see their ads—made easier by increased search functionality. So who’s left to object? Only Newmark and Craigslist itself.

Update: Craigslist has changed its terms of service to give it exclusive rights to posted content. But an exclusive license "is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed." (17 USC 204(a)). It's not clear whether a clickwrap license would satisfy this requirement.

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