

Craigslist's Allegations Of "Copyright" Violations Thrown Out - jacoblyles
http://www.forbes.com/sites/derekkhanna/2013/04/30/craigslists-allegations-of-copyright-violations-thrown-out/

======
DannyBee
This is actually not a great decision so far. I skimmed the decision from
PACER (so the below may be wrong or missing facts), and it looks like (and
remember, this is just a preliminary decision by the court) that the court
found

1\. The individual posts were copyrightable

2\. The compilation (whose only creativity is being organized by geographic
area), was copyrightable (because "“deciding which categories to include and
under what name,”" met the minimal level of creativity necessary for
copyright)

3\. Craigslist's eventually lost the copyright claims because the TOU was not
an exclusive license (in the US, only an exclusive rights owner can sue for
infringement, licensesees cannot)

4\. Craigslist did not need to register the actual posts it's suing over, only
the compilation

#1 is maybe right (i think it depends on the post)

#2 should be clearly wrong, though there is a bit of bad precedent here

#3 is good, but the judge basically suggested with the right set of words
buried in the terms of use, craigslist could have transferred copyright. This
is actually really dangerous in practice (you want people to know exactly what
they are getting into), because you really want copyright transfers to be
clear and knowing by users, and buried somewhere in a separate TOU document,
plus a button says "by clicking you accept the TOU", shouldn't be enough.

Of course, this is just a preliminary decision based on minimal briefing, so
i'm hopeful the judge would have gotten it "righter" had those claims not been
dismissed.

#4 is probably wrong, in the sense that registering "craigslist.org" as a
compilation, should not count as registering _all the works that have ever
appeared on craigslist.org_.

At best, it should be registering the works that appeared as of the copyright
registration date for craigslist.org.

The compilation registered in 2012 is titled "Craigslist website 2012
(Homepage and primary supporting pages)"

That should not be "all posts". There are also two compilation registrations
for post.craigslist.org, one in 2004, one in 2008.

None of these should be sufficient to claim what they did.

~~~
tempestn
Keep in mind, from the judgement, section II Legal Standard:

 _In determining facial plausibility, whether a complaint states a plausible
claim is a “context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id. at 679. Allegations of material
fact are taken as true and construed in the light most favorable to the non-
moving party._ [http://3taps.com/images/pics/430_138734862-Judge-rules-in-
fa...](http://3taps.com/images/pics/430_138734862-Judge-rules-in-favor-of-
Craigslist-on-motion-to-dismiss-in-case-vs-3taps-Padmapper-Lovely.pdf)

So essentially these findings are made while reading all facts in the best
possible light for craigslist. So it's not necessarily saying, for example,
that the compilation is copyrightable - just that it is _conceivable_ that it
could be.

~~~
DannyBee
I agree in theory, but at least my complaints are basically "even if what
craigslist said is completely right, they still should have lost on the law",
which is in line with the judgement standard :)

------
ultimoo
"Craiglist has been recognized for a failure to innovate and having among the
internet’s worst terms of service’s."

Wow, that is quite a way to open an article! Isn't journalism supposed to be
slightly more neutral than that. I understand that most of us (myself
included) are quite against copyrighting, DRM and closed source etc. but let's
not harshly rebuke a company with 30 employees [1]. Simply put, copyright is a
contract between the society and an individual that encourages the individual
to create, innovate and be artistic. Craigslist did things that they thought
were right to protect their users' and their own interests. They found a
market. Padmapper used their data. Courts said it is ok to do so since they
didn't the copyright to begin with. Fine, let's move on.

No reason to write such a bitter sounding article peppered with "Let this be a
lesson to all tech companies", "hopefully this will discourage craigslist",
and "sledgehammer to scare innovators". tsk. tsk. Forbes.

~~~
signed0
Perhaps the author being "Derek Khanna, Contributor", instead of "XX XY,
Forbes Staff" has something to do with it.

~~~
eli
Hey, that name looks familiar!

[http://arstechnica.com/tech-policy/2013/01/republican-
staffe...](http://arstechnica.com/tech-policy/2013/01/republican-staffer-
fired-for-copyright-memo-talks-to-ars/)

~~~
jacoblyles
Lately, he did a lot of work on a campaign to legalize cell phone
unlocking[1][2]. I'm not sure how that turned out.

[1][http://www.theatlantic.com/business/archive/2013/02/the-
law-...](http://www.theatlantic.com/business/archive/2013/02/the-law-against-
unlocking-cellphones-is-anti-consumer-anti-business-and-anti-common-
sense/272894/)

[2][http://www.forbes.com/sites/derekkhanna/2013/02/25/white-
hou...](http://www.forbes.com/sites/derekkhanna/2013/02/25/white-house-
petition-on-cellphone-unlocking-receives-over-100000-signatures/)

~~~
derekkhanna
Yep - I spearheaded that campaign. We got a bunch of bills introduced in
Congress, White House reversed their position, FCC is still investigating. I'm
trying to get the best bill through Congress while we lay the groundwork for
an overall copyright reform bill.

~~~
gwillen
It's not every day I say this to a Republican -- in fact, I'm not sure I ever
have before -- but seriously keep up the good work. We're all counting on you.
:-)

------
aneth4
Hopefully some day Craig Newmark will be held responsible for being the
internet pariahs he is. Craig is a sweet, awkward man with a lot of power
which he has allowed to be abused by others, and he is responsible for that.
He needs to step in and control his company in the direction of good, or be
seen for what he is - an appeaser of greed and evil.

------
KaoruAoiShiho
Does this mean it's okay to scrape / clone any user generated content without
legal repercussions? I can make a HN clone that copies all the comments and
everything and things would be just peachy legally?

~~~
tempestn
No. For one thing, this ruling simply dealt with copyright claims. If you
scrape a site you are subject to their terms of service, most of which
prohibit scraping. So there would be contract and possibly even CFAA claims to
deal with.

Also, the specific reason the copyright claims were dismissed in this case is
that craigslist does not have an exclusive license on its posts. If Hacker
News' terms exclusively license comments (which I doubt, but I haven't
checked), that would make this particular ruling less relevant. It is also
possible that the comments' authors could make claims against you, should they
wish to do so.

~~~
monkeyspaw
Can terms of use prohibit scraping for reuse, while still allowing Google, et
al., to index?

I genuinely wonder this. Can I say, "it's OK for XYZ to scrape, but not ABC?"
(Or is it general use -- scraping OK/not OK?)

I think it's different for API usage, because you enter an agreement with an
entity by signing up, etc. I'm speaking specifically to the unauthenticated
scraping/indexing.

~~~
tempestn
I don't know, but I suspect that they can. If I own some data, I should be
able to give (or sell) it to you and not to someone else.

That said, once I've given it to you, if you choose to give it to someone
else, I have no claim against that someone (although I might against you,
depending on our contract). That's the heart of 3taps' position as I
understand it; they get craigslist post data from third party sources like
search engines, instead of scraping craigslist, and so do not have a contract
with craigslist.

~~~
monkeyspaw
I'm pretty sure I agree with you, if you have a specific agreement with one of
the parties.

What about "anonymous" scraping, however? (I put it in quotes because I know
you can reverse DNS/UserAgent/etc. identify... but that's simple to spoof, and
we're discussing within a sophisticated context.)

Can I say that "OOgle" can use my data (because I want visitors) but others
can't? (To complicate, can I exclude only certain, specified, parties and
include all others?)

------
kyboren
_Derek Khanna, Contributor_

Looks like Derek found a sweet new gig after being kicked off the Republican
Study Committee for talking sense about copyright.

~~~
derekkhanna
Not yet. That's just my blog. I did take into account people's comments here
and adjusted accordingly. I wrote this to break the story - while I was
involved with other work. I have headed many of this forum's suggestions.

~~~
btipling
Good luck, looking forward to checking out your future posts. Have you tried
posting via medium? I bet they would be interested in your posts.

------
neya
Is it really hard to create a Craigslist clone? Just curious. I say 'clone'
because of the unethical practices followed by Craigslist, and we can have
some one more open-minded replace them soon (with enough marketing). I'm not
sure why no YC companies (or anyone else for that matter) want to disrupt
Craigslist, though.

The internet works the way it is now because of the concept of 'free and open'
information. Attempting to harm the ones that enable such open-ness isn't
exactly the right recipe for a long term successful Internet based business
model.

~~~
signed0
Creating the clone is fairly easy. For every type of service that Craigslist
provides there have probably been 1-5 clones over the past few years.

Currently both buyers as well as sellers have been trained that the place to
go is Craigslist. Give that it would be impossible for a new service to have
anywhere near the number of buyers and sellers as Craigslist, no rational
individual is going to choose an alternative.

The problem becomes even tricker since Craigslist is for the most part free.
They currently use the revenue gained by job postings to subsidize the other
listings on their site. This makes it harder for a niche service to start up
as they are competing with free.

~~~
gamble
For some reason, Kijiji is dominant in most of Canada. Craigslist is almost
never used here. I'm honestly glad, because I occasionally check Craigslist
and it's never a rewarding experience. Without the network-effects monopoly,
it's a truly awful site.

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niggler
Original document: [http://3taps.com/images/pics/430_138734862-Judge-rules-in-
fa...](http://3taps.com/images/pics/430_138734862-Judge-rules-in-favor-of-
Craigslist-on-motion-to-dismiss-in-case-vs-3taps-Padmapper-Lovely.pdf)

------
leephillips
If this is an accurate summary of the legal situation (not at all something
one can assume with this publication) then it sounds as if Craigslist simply
needs to change their terms so that a user agrees that Craigslist has a
perpetual and exclusive copyright on the content of listings. Then you may be
able to aggregate the data in some form, but would have to be careful how you
used the content of the listings.

~~~
cstejerean
I think they tried this for a bit (last summer?), but it didn't last long. The
few times I need to use Craigslist I can't afford to give them an exclusive
license.

~~~
tempestn
Exactly. There was also speculation that they realized it could open them up
to liability for the content of posts, which obviously they would not want.

------
tempestn
There's a post on the EFF blog regarding some other elements of the decision
(particularly relating to exclusive copyright licenses and to the CFAA):
<https://news.ycombinator.com/item?id=5641151>

------
randall
Yay Eric!!!

