This week, a federal district court in California refused to toss craigslist’s claims that it owns its users’ postings. More and more, we’re seeing fine print in terms of use (“TOU”) agreements and end user license agreements (“EULAs”) that try to make copyright claims. Why? Because copyright law is so overpowered that sneaking a smidge of copyright into what should be an ordinary affair can give a business a huge amount of leverage to bully others into doing what it wants.
Craigslist: We Own Your Writing
We’ve covered this case (and some of its other implications) before, and Kurt Opsahl at EFF has a good rundown of the various issues in the case, including both copyright and “computer intrusion” charges. But I want to discuss how this case fits into a larger pattern of using the combined power of fine print and copyright law to kick consumers and competitors around.
In this case, craigslist wanted to keep other companies from scraping craigslist listings and repackaging them. Since craigslist has a famously minimalist site without a lot of advanced searching tools, there was a serious demand for someone to add more information on top of the base listings. For instance, a site called Padmapper would scrape craigslist, figure out the locations of apartment listings and show users where the listings were on an online map. Craigslist, of course, didn’t like the idea that others were reposting listings from its site. So, as part of its terms of use, craigslist claimed that users had to give it the right to sue others who reposted the users’ writings. And, for a few weeks last summer, it also included a clickthrough where users had to agree that they were giving craigslist the exclusive right to host the users’ postings.
The court concluded that the combination of these two factors meant that craigslist actually owns rights to the listings written by their users. And there’s not much that would have prevented craigslist from claiming not just an exclusive right, but near-full ownership of the copyrights, if the court’s reasoning is to be believed. In other words, craigslist was saying it had the sole right to post those listings—it could even, theoretically, sue the listings’ authors for posting them elsewhere.
Practically speaking, this means that craigslist can sue anyone who reposts its users’ listings—even if the users themselves want them reposted. If I’m trying to sell (or give away) an ancient laserjet printer (it can connect with either serial or parallel cables), I’d want it posted on as many different sites as possible. To the extent that there’s anything creative in what I’m writing, I should decide what happens to my post, right?
But no. craigslist isn’t so much concerned with the value of the creativity in the post itself; it’s interested in maintaining its position as the biggest online hub for classified ads. Building copyright restrictions into its fine print, in this case, is just the easiest way to bring some legal guns to bear on restrictions of what other people have written.
Medical Justice: We Own What You Might Say About Us
There are instructive parallels between the craigslist case and a company that called itself Medical Justice. A couple of years ago, Medical Justice was offering a service to doctors that it said would protect them against bad reviews on sites like Yelp. They provided doctors with a form for patients to fill out upon arriving at the office. The form required the patient to sign over all copyrights in any review they might write about the doctor. That way, if the patient wrote a negative review, the doctor could claim copyright infringement and issue a takedown notice to the review site. Why copyright? Because, under a part of communications law, online service providers like review sites aren’t liable for the statements of their users. But that law has an exception for copyright and other intellectual property claims. That means that someone who wanted to suppress a critical review on Yelp might not be able to sue Yelp for libel, but they could issue a takedown notice under copyright law if they could claim that the review infringed their copyrights.
So, according to Medical Justice’s plan, if a patient has a bad experience with a clinic and vents that frustration online, they’re suddenly violating copyright in something they themselves wrote. Needless to say, this is far from what copyright law was meant to do. And again, we see the way in which the big guns of copyright law (in this case, the power of the notice-and-takedown) are smuggled into the situation through the use of fine print that people are highly unlikely to read.
It takes a special kind of company to simultaneously inflate and prey upon doctors’ fears of libel and also take advantage of patients’ confusion as they navigate both disease and paperwork. Fortunately, complaints in court (by Public Citizen) and before the FTC (by CDT) apparently generated enough pressure for Medical Justice to stop offering those particular contracts.
Abusing Copyright
In both of these cases, we have two separate problems being exploited—flaws in how we handle written agreements and fine print; and the ease with which copyright law can be abused. Together, they can form a potent combination. Copyright lends itself to this sort of abuse for at least three reasons.
First, copyright law bears stronger penalties than lots of other areas of law. Break a contract with someone, and a court will likely only make you pay what you’d have owed them if you hadn’t reneged. But infringe someone’s copyrights, and you can be dinged for anywhere between $750 and $150,000 per work infringed, regardless of how small the offense. And, as we can see in the Medical Justice case, copyright law also gives copyright holders special abilities not available to other potential plaintiffs, like the ability to send takedown notices to online hosts that the hosts have to honor at the risk of getting sued themselves.
Second, it’s easy for copyright to be inserted into almost any given situation where speech or writing is involved. Since anything with a modicum of creativity can be copyrighted, and is considered copyrighted as soon as it’s “fixed in a tangible medium,” those powerful penalties listed above can be shoehorned into disputes that are often really about something else, like libel, or trademarks, or rights of publicity. Just look at the Supreme Court case of Costco v. Omega.
Fancy watchmaker Omega didn’t like the fact that discount retailer Costco was selling its watches cheaper than their dealers, so it copyrighted a little globe logo and started stamping the backs of its watches with it. When Costco continued to sell those watches, they got sued for copyright infringement. Clearly, no one in the entire dispute cared one bit about the artistic worth of the copyrighted design—they were concerned about things like the value of the watches, the reputation of the watchmaker, and so on—all things that are irrelevant to copyright law. But copyright law was an easy lever, so in it went.
Third, the law tends to go a little nuts around copyright. While we normally have strong safeguards for freedom of speech that stand on their own, a lot of people will argue that those protections for free speech don’t override copyright considerations; they’re just sort of built in to the existing copyright law we have (through things like fair use). Similarly, while the law will recognize that there are certain kinds of contracts that just shouldn’t be honored—sometimes because the terms of the contract are bad enough on their own, sometimes because it’s clear that the contract was signed through some sort of deception or trickery—courts have been pretty generous in taking contracts and license agreements at their word in the copyright context—even though it’s clear that no one reads the fine print—it’d take years just to do that, much less understand it. There seems to be a sort of tendency among lawyers to assume that if copyright’s involved, it gets to control the entire situation—even when the situation isn’t fundamentally a copyright one.
These factors all add up to a situation where copyright is ripe to be abused. Those terms of use on the websites you use are all “subject to change without notice.” There’s not a lot keeping them from trying to pull a craigslist on you and then assert copyright if they don’t like what you’re doing. The software you’re using, too, had a nice long EULA you clicked through when you installed it. Are you violating any of its terms? Maybe the company will try to sue you for copyright infringement—never mind that the program cost you a good deal less than $750, and nowhere near $150,000.
Copyright abuse thus has the potential to touch just about anyone. And as long as the law keeps copyright penalties high and makes copyrights trivially easy to get, it’s not going to go anywhere anytime soon.