I believe that technique (called 'map bunnies' in the mapmaking domain) has been used to discover copiers, but that subsequent legal/social action against the transgressors is not based on the damages caused by the bunny-copying itself, but the now-detected larger pattern.
IANAL, but I would expect the copier-of-fake-listings to have a number of defenses in such a situation.
It would be hard to prove any real damages from the copying of just those fake listings – any loss of business is due to the copying of the bulk of other real listings. To the extent those other real listings are 'facts', reproducing them may be a protected activity under US legal precedent ('Feist'). The false items don't change the key issue at all. (Statutory damages might still be a problem.)
Further, consider:
• Someone couldn't intentionally hoax a newspaper and then sue the newspaper for having reproduced their creative work of fiction.
• If I tricked you into downloading a file labelled "public-domain video of the 1997 state-of-the-union address", which is actually the 'West Wing' pilot episode, it'd be hard for me to collect damages for copyright violation.
To some extent, passing off material in the form of something else – where that something else would otherwise be legal to disseminate – can easily be considered implicit permission to treat that material as if it were the first thing (true facts, hot news, copyright-unemcumbered information, etc).
Injecting the false data still serves a 'detection' purpose but probably can't serve a 'damages-heightening' purpose. (And, detection isn't at issue in this scenario: PadMapper has announced their intent and technique publicly.)
> Someone couldn't intentionally hoax a newspaper and then sue the newspaper for having reproduced their creative work of fiction.
Your point is cogent, but the example is not. if someone hoazes a newspaper, the are encouraging the newspaper to “copy” them. Craigslist is not hoaxing 3taps or padmapper, just the opposite. In my conjecture, they’re sending C&D letters saying “Do NOT copy our data. Although most of it is not copyrightable, some of it is and cannot be copied from our web site or API. Get your ‘facts' from original sources.”
That is very different from hoaxing or inducing someone to copy and then yelling “gotcha!"
IANAL, but I would expect the copier-of-fake-listings to have a number of defenses in such a situation.
It would be hard to prove any real damages from the copying of just those fake listings – any loss of business is due to the copying of the bulk of other real listings. To the extent those other real listings are 'facts', reproducing them may be a protected activity under US legal precedent ('Feist'). The false items don't change the key issue at all. (Statutory damages might still be a problem.)
Further, consider:
• Someone couldn't intentionally hoax a newspaper and then sue the newspaper for having reproduced their creative work of fiction.
• If I tricked you into downloading a file labelled "public-domain video of the 1997 state-of-the-union address", which is actually the 'West Wing' pilot episode, it'd be hard for me to collect damages for copyright violation.
To some extent, passing off material in the form of something else – where that something else would otherwise be legal to disseminate – can easily be considered implicit permission to treat that material as if it were the first thing (true facts, hot news, copyright-unemcumbered information, etc).
Injecting the false data still serves a 'detection' purpose but probably can't serve a 'damages-heightening' purpose. (And, detection isn't at issue in this scenario: PadMapper has announced their intent and technique publicly.)