
Good News: Craigslist drops exclusive license to your posts  - dredmorbius
https://www.eff.org/deeplinks/2012/08/good-news-craigslist-drops-exclusive-license-your-posts
======
grellas
This is the first time I have seen EFF tap-dancing around issues that are
important to its mission and I can't help but think that this arises from its
relationship to Mr. Newmark.

Craigslist has recently engaged in a lawyer-driven campaign to ensure that no
third party can use any of the data posted to its site:

1\. Quite apart from the "exclusive license" language that it recently added
(and has now dropped), it had recently amended its terms of use to make
absolutely clear that no one has the right to use any data posted to its site,
whether directly or indirectly, _under any circumstances_.

2\. It sent cease-and-desist demands to various parties, including PadMapper,
warning them not to use any such data but, as much as anything, making clear
that it was revoking any _implied license_ that the law might find to exist
from CL's having allowed parties to scrape its data in the past (i.e., it was
saying, in effect, no more loose community norms will apply but only the heavy
hand of the law).

3\. It also sued 3Tap for having set up a business that used CL data from the
Google cache and offered it to third parties to enable them to have access to
CL data without having to get it from the site directly. 3Tap contended that
it could lawfully use the cached data without violating CL's terms of use or
any copyright held by CL in any such data. CL strongly disagreed and set out
its claims of infringement, etc. in a complaint filed in federal court just
recently. The 3Tap business model may or may not have withstood this legal
challenge but the salient fact here is that CL faced a lot of uncertainty on
the legal issues involved, meaning that it _might_ ultimately have lost on its
claims and further meaning that 3Tap's business model would serve as a ready-
made way for third parties to gain unfettered access to the CL data, at least
until CL were able to obtain a preliminary injunction in the lawsuit or an
ultimate victory on its claims. To do that, however, it would have needed to
run the risk of potentially losing on its claims and thereby having helped
create some pretty bad legal precedents for its business model.

4\. That, to my thinking, is the _only_ reason why CL would have taken the
otherwise _insane-looking_ step of changing its terms of use to demand that
posters give it an exclusive license to all items posted to the CL site. That
sort of license represents a bonehead decision from almost any angle one looks
at it except one, and that is the legal angle of giving CL a strong position
to claim that 3Tap can no longer use any of the data taken from the Google
cache, whether or not 3Tap was deemed to have been bound by the CL terms of
use. If CL had exclusive rights to enforce claims relating to the CL postings,
then it could try to shut down 3Tap whether or not 3Tap was technically bound
by the CL terms of use because it could do so from the copyright angle. In
other words, the whole point of having tried to claim exclusive rights to the
posts was to have a weapon against 3Tap to block it from having an avenue by
which it could open up CL posts for use by potentially innumerable third
parties via 3Tap - that is, to plug the final loophole in its legal system
aimed at strict enforcement of the terms of use.

5\. Any agreement, however, that amounts to a bare assignment of the right to
sue on a copyright (with the assignor retaining effective ownership rights to
everything else besides the right to sue) is of dubious enforceability, as
copyright troll Righthaven found out to its dismay when it was upended by the
combined efforts of Democratic Underground, Fenwick & West, and EFF - who
convinced a judge to toss all its cases on the ground that such an assignment
was ineffective and could not be used as a basis upon which to sue alleged
infringers. Now the legal doctrines involved here can get complex and I have
not had a chance to assess them carefully in the 3Tap/CL context. But I would
wager that CL had lawyers telling it that, if the new terms amounted in
practice _only_ to a bare assignment of the right to sue on copyright (and
what other reason is there for this?), there was still some potentially
serious doubt on whether it would be able to prevail against 3Tap even though
CL could now claim that it had the exclusive right to sue to enforce
copyrights relating to CL posts.

6\. This left CL with only one practical choice, which it took: remove its
data from the Google cache or at least set it up so that third parties could
not use such data. And that is precisely what it did, just a couple of days
ago (see <http://news.ycombinator.com/item?id=4351207> for an HN discussion on
this event, with link to relevant article).

With the final step above, I assume that CL has effectively crippled the 3Tap
business model. Therefore, it no longer needs to impose insane-looking
licensing terms on persons wanting to post to its site and it has dropped
those terms. It has simply found a more practical way to defeat the 3Tap
model, rendering the oppressive licensing terms unnecessary.

The bottom line to what has happened here, in my view, is that CL is engaged
in a heavy-handed, lawyer-driven campaign to guard its turf at all costs but
doesn't really want to say this publicly for its own prudential reasons. This
too is perhaps why EFF is being so diffident in this post, trying to celebrate
the removal of obnoxious language from the CL terms of use without really
giving convincing reasons for why that language found its way into the terms
of use in the first place or why (short of CL being on a drunken toot) such
language underwent a here-today-gone-tomorrow transformation for no apparent
good reason over a very short period of time. I am only speculating here but
it looks like EFF pulled a punch here.

~~~
cs702
grellas: your analysis of CL's behavior makes a lot of sense to me. However, I
don't understand why you say the EFF was "tap-dancing around issues that are
important to its mission."

While I agree the EFF should be concerned with companies asking for exclusive
licensing to user posts, because its mission is to protect individuals'
digital rights, I don't see why it should concern itself with whether
companies make aggregate data cacheable, scrap-able, or API-accessible to
other businesses.

CL makes money by aggregating data: it attracts buyers by aggregating all
local listings in one place, and it attracts sellers by aggregating customer
searches for local listings in one place. IMO the EFF has no business asking
CL to give its product -- aggregate data -- away for free.

Please explain, how exactly is the EFF "tap-dancing" here?

~~~
grellas
Thanks for your thoughtful comment.

I agree that EFF has no business asking CL to give away its product for free,
nor do I think CL should be forced to do so for any reason.

By tap-dancing, I meant that EFF failed to discuss the legal issues in a way
that it might, for example, have discussed the actions of a patent or
copyright troll in making an outrageous attempt to disrupt internet norms
through some indefensible legal artifice. In such a case, EFF would be the go-
to site for an astute legal analysis delving into: (a) what was done, (b) why
it is legally indefensible (if it arguably is), (c) the horrible policy
implications of what was done, and (d) what the motives of the actor were in
doing this and whether those motives could be justified for any reason.

As I read this post, I saw none of the normally sharp and even hard-hitting
analysis that EFF would offer in such a case. An action that normally would
call for outrage has instead received a very diplomatically worded critique
from the EFF. That is all I meant by "tap-dancing." It is almost as much about
tone as about substance but clearly this to me is not one of EFF's normal
posts.

~~~
cs702
Ah, I see your point, although I still don't agree with it.

The simplest explanation for the EFF's behavior is that in this case a
confrontational stance was not necessary -- and in fact would have been
counter-productive. CL has not only supported EFF values for a longtime, it
also reversed the new user licensing terms very quickly. In other words, CL is
very different from, and deserves different treatment than, a copyright or
patent troll.

Had CL persisted with those insane end-user terms, I have no doubt the EFF
would have taken an increasingly confrontational stance.

Thanks for the prompt response.

------
Karunamon
The EFF just lost so much of my respect for this. They're supposed to be
protecting the rights of people on the internet, not playing stupid political
games one would expect from Congress.

I'd have expelled Craig for that bit of buffoonery, rather than walk on
eggshells and tapdance around the fact that he's being a two-faced ass.

You bet your ass I'm mad. This kind of idiocy sickens me, especially coming
from a group as supposedly altruistic as the EFF.

------
calvin
The disclosure at the bottom is rather informative:

"Disclosure: Craig Newmark, founder of craigslist, is a member of EFF’s
Advisory Board, and craigslist has donated to EFF."

~~~
malandrew
I find this deeply ironic.

I'm intensely curious how much responsibility for the current debacle can be
attributed to Craig and how much can be attributed to Jim Buckmaster

~~~
dredmorbius
The official line at Craigslist and from Craig is that Craig just works there
(and owns roughly half the company). Jim's the boss.

Given his ownership share (slightly less than half IIRC given the split
between him and Jim and shared held by eBay), that's a slightly disingenuous
party line.

------
47
EFF just lost all my respect. Craigslist should clearly disclaim ownership of
content like before
[http://web.archive.org/web/20110511105832/http:/www.craigsli...](http://web.archive.org/web/20110511105832/http:/www.craigslist.org/about/terms.of.use)

------
danso
Two things: CL didn't pull back as far as it could of: > _This new language
was a marked difference from prior Terms of Use (2008/2011), which clearly
stated “craigslist does not claim ownership of content that its users post.”
While this clear language has not returned to the TOU, the same result comes
from the non-exclusive license currently in the TOU._

And why can't the EFF just quote the current passage in its changed form? The
post itself is still unclear. Is this the affected passage?

> _You automatically grant and assign to CL, and you represent and warrant
> that you have the right to grant and assign to CL, a perpetual, irrevocable,
> unlimited, fully paid, fully sub-licensable (through multiple tiers),
> worldwide license to copy, perform, display, distribute, prepare derivative
> works from (including, without limitation, incorporating into other works)
> and otherwise use any content that you post. You also expressly grant and
> assign to CL all rights and causes of action to prohibit and enforce against
> any unauthorized copying, performance, display, distribution, use or
> exploitation of, or creation of derivative works from, any content that you
> post (including but not limited to any unauthorized downloading, extraction,
> harvesting, collection or aggregation of content that you post)._

<http://www.craigslist.org/about/terms.of.use>

~~~
mbreese
_You also expressly grant and assign to CL all rights and causes of action to
prohibit and enforce against any unauthorized..._

How is this in effect any different from a non-exclusive license? Are they
going to ask each person if they gave permission for something that was cross
posted multiple places? At least now people _can_ post an ad to multiple
place, but CL wants to make sure that they aren't crawled?

If I were CL, I'd be more worried about losing Safe Harbor protection than
whether or not I owned user submissions.

------
jacoblyles
"We understand that craigslist faces real challenges in trying to preserve its
character and does not want third parties to simply reuse its content in ways
that are out of line with its user community’s expectations and could be
harmful to its users."

You don't want your users unexpectedly harmed by saving them _hours of their
precious lives_ with a better UI. That would be a tragedy.

------
goodcanadian
If Craigslist claimed ownership of the content, wouldn't that make them
responsible for the content and open them up to the lawsuits surrounding
criminal activities initiated through a Craigslist posting?

~~~
IanDrake
This is exactly what I believe.

CDA:
[https://en.wikipedia.org/wiki/Section_230_of_the_Communicati...](https://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act)

------
nthitz
So what does this mean for services such as PadMapper?

------
abbott
People do read, and some likely thought twice about clicking "Continue", and
did not post because of the ridiculous license. If it happened too frequently,
CL might have noticed a dip in posts.

~~~
danso
I highly, highly doubt this. How many users on a given day are brand new
users? How many are users who have used CL occasionally or regularly? And how
many of those are likely to read the text of the license on their nth post?

Very, very few, I bet, unless CL highlighted the change in red and made them
click through a few Confirm dialogs.

~~~
lixon
i second that :)

------
franze
maybe it has been discussed before (i didn't follow the craigslist
discussions) but it's funny that craigslist does not have any robots.txt on
it's city subdomains

i.e.: <http://newyork.craigslist.org/mnh/sub/3195940666.html> is hosted on
<http://newyork.craigslist.org/>

but <http://newyork.craigslist.org/robots.txt> makes an HTTP 302 redirect to
<http://www.craigslist.org/robots.txt>, but
<http://www.craigslist.org/robots.txt> is only a valid robots.txt for
<http://www.craigslist.org>, and not for <http://newyork.craigslist.org/>, as
the host, protocol and port of the robots.txt file is an essential part of its
validity range.

so basically newyork.craigslist.org does not have any robots.txt and can be
crawled as you like.

if you want more about it, see
[https://developers.google.com/webmasters/control-crawl-
index...](https://developers.google.com/webmasters/control-crawl-
index/docs/robots_txt)

    
    
      >The directives listed in the robots.txt file apply only to 
      >the host, protocol and port number where the file is hosted.

~~~
sigmadelta
Saying that "newyork.craigslist.org does not have any robots.txt and can be
crawled as you like" is false. Search engines follow redirects until valid
robots.txt files are found. From that same document you linked:

3xx (redirection)

Redirects will generally be followed until a valid result can be found (or a
loop is recognized). We will follow a limited number of redirect hops (RFC
1945 for HTTP/1.0 allows up to 5 hops) and then stop and treat it as a 404.
Handling of robots.txt redirects to disallowed URLs is undefined and
discouraged. Handling of logical redirects for the robots.txt file based on
HTML content that returns 2xx (frames, JavaScript, or meta refresh-type
redirects) is undefined and discouraged.

------
minouye
_Moreover, removing the exclusive license provision retains craigslist’s
compatibility with common licensing schemes, like the Creative Commons
ShareAlike license or the GNU Free Documentation License._

Hold on a sec here. Are they saying that Craigslist postings are now licensed
under CC ShareALike (<http://creativecommons.org/licenses/by-sa/3.0/>)? If so
that's probably the most substantial point in this post.

~~~
graue
No, they seem to be saying that a Craigslist poster may, if they choose,
license their own post under CC-BY-SA. Why anyone would bother to do that is
beyond me.

And I'm not convinced it's true given that the terms of use, last updated in
February, still say "You also expressly grant and assign to CL all rights and
causes of action to prohibit and enforce against any unauthorized copying,
performance, display, distribution, use or exploitation of, or creation of
derivative works from, any content that you post (including but not limited to
any unauthorized downloading, extraction, harvesting, collection or
aggregation of content that you post)."
<http://www.craigslist.org/about/terms.of.use>

Very disappointing post from EFF here. The meaningless Creative Commons bit
you quoted is a fine illustration of what toothless nonsense the whole thing
is. It seems they have a major conflict of interest with the legal bully's
founder (Craig Newmark) sitting on their Advisory Board.

~~~
minouye
If this is indeed the case then that's absolutely ridiculous. I expected more
from the EFF than chummy back-slapping and congratulatory praise for repealing
a legally baffling policy.

------
gagabity
They no longer need the exclusive since PadMapper's workaround has been
effectively killed by the changes Craigslist made to its robots.txt, Google is
no longer allowed to index apartments thus PadMapper can not scrape the Google
cache.

~~~
sigmadelta
craigslist didn't change robots.txt:

$ wget -q -O- --save-headers <http://www.craigslist.org/robots.txt> | fgrep
Last-Modified

Last-Modified: Fri, 04 Nov 2011 18:13:24 GMT

------
DigitalSea
Does this mean that Craigslist will no longer be taking legal action against
Padmapper or will that still be going ahead? This is great news though, it's
amazing what a little (well a lot) of backlash can accomplish.

------
BadassFractal
Does this effectively mean Padmapper can use CL data once again?

~~~
waterlesscloud
CL has also removed themselves from search engines, so PadMapper can no longer
use the google cache workaround.

I don't think they can go back to scraping either, but I'm not certain of that
aspect of it.

This may be the real reason behind the change. Perhaps CL just doesn't need it
any more.

~~~
jobu
That sucks, searching is how I double-checked dubious craigslist posts. Select
a couple phrases and search google. If identical posts pop up under various
other cities on craigslist, then I knew for sure it was spam/fraud.

~~~
IanDrake
Just one of the many ways third parties fix broken things on Craigslist.
Things Craigslist refuses to recognize.

