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.
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
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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.