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Craigslist Content Aggregator Continues To Face Copyright Infringement and CFAA Claims

Posted in Copyright Law

By Scott Hervey

Craigslist operates one of the most well known and widely-used online classified ad services.  Craigslist claims that more than 60 million Americans visit and use Craigslist each month, and they collectively post several hundred million classified ads each year.  3Taps is a technology company that aggregates and republishes real time ads from Craigslist and other services and allows web developers to access such aggregated information.  One developer who used the 3Taps data services for its service offering was PadMapper, a location-based apartment rental search engine with real-time filtering. PadMapper takes aggregated Craigslist home and apartment rental information and pots the various individual postings on a searchable map.

Upon becoming aware of 3Taps and PadMapper’s activities, Craigslist sent them a cease and desist letter, advising 3Taps and PadMapper that they committed various violations of the Craigslist’s Terms of Use and demanding that they “cease and desist your abuse of Craigslist, all violations of Craigslist’s legal rights and all access to and use of craigslist.” In closing, Craigslist informed 3Taps and PadMapper that they were no longer authorized to access or use the craigslist services for any reason and that “any prior license or authorization to use the [Craigslist website or service] is revoked and any access to or use of the [Craigslist website or service] by you or on your behalf is unauthorized.”   Additionally, Craigslist blocked certain IP addresses associated with 3Taps and instituted various technical measures designed to block those IP addresses from accessing Craigslist’s servers. However, it appears that 3Taps used proxy servers and other anonymous proxies to circumvent Craigslist’s efforts to prevent 3Taps from accessing Craigslist’s servers.

When 3Taps and PadMapper failed to comply, Craigslist filed a complaint in the US District Court for the Northern District of California. The complaint alleged numerous causes of action, including claims for copyright infringement, contributory copyright infringement, violations of the Computer Fraud and Abuse Act (CFAA) and violations of the California corollary to the CFAA, the California Comprehensive Computer Data Access and Fraud Act (Cal. Penal Code § 502).

In support of its copyright infringement claims, Craigslist alleged copyright ownership of all user postings. In its complaint, Craigslist alleged:
[E]ach user-generated posting on the craigslist website is itself an original work of creative expression, as it includes unique written descriptions of the goods or services offered for sale, for example, and often include photographs or other creative works. …craigslist either owns or has exclusive rights in its website and all portions thereof, including, but not limited to, the database underlying the website and the user-generated postings on its website

In addition, Craigslist alleged that it is the exclusive licensee to all of the user advertisements posted between July 16, 2012 and August 8, 2012. In support of this argument, Craigslist alleged that during that period, the Terms of Use contained the below language that confirmed that it was the exclusive licensee for all copyright in the user advertisements and that all users were required to agree to the Terms of Use before posting an ad. It read:

Clicking ‘Continue’ confirms that Craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent. 

Below this language was the a “Continue” button. The user could not proceed without clicking the “Continue” button. In addition to this language, the Craigslist Terms of Use provided as follows:

You automatically grant and assign to [Craigslist], and you represent and warrant that you have the right to grant and assign to [Craigslist], 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. 

In support of its CFAA and §502 claims, Craigslist alleged that its Terms of Use govern all users access to and use of its website and service, and that under the Terms of Use users may not “copy, display, distribute, perform or create derivative works from craigslist webpages or other [craigslist] intellectual property” and that “access, copying, display, distribution, performance or derivative work is unauthorized.”   In its complaint, craigslist alleged that any “copying, aggregation, display, distribution, performance or derivative use of craigslist or any content posted on craigslist whether done directly or through intermediaries (including but not limited to by means of spiders, robots, crawlers, scrapers, framing, iframes or RSS feeds) is prohibited” under its Terms of Use. Craigslist alleged that the defendants violated both the CFAA and §502 by accessing its website and servers “without authorization or in excess of the authorization as defined by [its] Terms of Use.”

In April, 2013,  3Taps filed a motion to dismiss Craigslist’s claims for copyright infringement claims, violation of the CFAA and Penal code Section 502. The court granted in part and denied in part 3Taps motion, dismissing only a subset of the copyright claims and allowing the CFAA and Section 502 claims to stand. The court allowed subsequent briefing on the CFAA and Section 502 claims, but ultimately allowed the claims to stand. 

3Taps claimed that Craglist’s copyright infringement claim was flawed because Craigslist is not the author of the ads posted on its services; the users who create the ads are the authors.   Additionally, 3Taps challenged the claim that the Craigslist website is a protectable compilation since Craigslist does not arrange the ads in any creative or original manner. Because they are stacked in a list format in the order they are posted, 3Taps argued that Craigslist does not contribute any new creative elements to the user content it posts and as such can not claim any copyright ownership. 

The court disagreed with 3Taps claim that the Craigslist’s website is a non-copyrightable compilation. Copyright protection covers compilations of preexisting material, but “extends only to the material contributed by the author of [the compilation], as distinguished from the preexisting material employed in the [compilation],and does not imply any exclusive right in the preexisting material.” 17 U.S.C. § 103(b).  In Feist v. Rural Telephone, the Supreme Court noted that “even a [telephone] directory that contains [non protectable] facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement,” because “choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original.” However, where the creation of a compilation requires no creativity, such as in Feist where the Court considered a “white pages” telephone book that merely listed subscribers in alphabetical order, such compilation lacks originality as required by the Copyright Act.

The Court noted that in the complaint, Craigslist stated that its classified ad service is organized first by geographic area and then by category of product or service, and displayed in “a list designed and presented by Craigslist.” The court found this organizational scheme requires some minimal level of creativity required by the Copyright Act.  

Since it appears that 3Taps aggregates and republishes only the user generated advertisements, and apparently not any material contributed by Craigslist, the central issue in Criaglist’s copyright claim would be the right to the user created content. In the complaint, Craigslist claimed that it was either the author of or exclusive licensee to all user created content. 3Taps challenged the sufficiency of the exclusive license language above the “Continue” button and in Craigslist’s Terms of Use. 3Taps argued that neither the Terms of Use or the language above the “Continue” button is legally sufficient to effectuate the transfer of an exclusive license; it is not a writing that clearly and unambiguously captures the intent to transfer this right as required by the copyright act.  

The court disagreed with 3Taps’ challenge to Craigslist’s claim of an exclusive license to the user created ads from July 16, 2012 through August 8, 2012.  The court found that the language in the Terms of Use and above the “Continue” button were sufficient, and that it is reasonable to infer that a Craigslist user would understand such language would effect a transfer of rights. However, the court found that Craigslist was not an author of and did not hold an exclusive license to the user generated ads submitted outside of the above time period. Outside of the time frame where Craigslist utilized the “exclusive license” confirmation statement, Craigslist’s license to user-created posts was governed only by its Terms of Use which, on its face, did not give any indication that the license “grant[ed] and assign[ed]” by users is exclusive. As such, Craigslist copyright claim was maintained only to the user generated ads from July 16, 2012 through August 8, 2012.  

The CFAA (and its California corollary, Section 502) impose criminal penalties on any person who, among other prohibitions, “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer,” defined as a computer “used in or affecting interstate or foreign commerce or communication.” 18 U.S.C. § 1030(a)(2), (e)(2). , 3Taps argued that it did not access Craigslist’s computer system “without authorization”. A recent 9th Circuit case clarified that the phrase “exceeds authorized access” in the CFAA relates only to violations of restrictions on access to information, and not to use of information. The Court noted that Craigslist’s Terms of Use contain only “use” restrictions and not true “access” restrictions” and as such, 3Taps violations of Craigslist’s Terms of Use do not support CFAA or Section 502 claim. However, the court noted that Craigslist, in its cease and desist letters, specifically denied 3Taps authorization to use the website for any purpose and instituted technical measures to block 3Taps from accessing the Craigslist website and service.   And even though the Craigslist website is a “public” website, the court concluded that Craigslist maintains the authority to revoke, on a case by case basis, the general permission it granted to the public to access the website. The court concluded that 3Taps was “without authorization” when it continued to pull data off of Craigslist’s website after Craigslist revoked its authorization to access the website, thereby supporting Craigslist’s CFAA and Section 502 claims.