This article is based largely on research conducted for a student presentation given in Professor Clint Francis’s Intellectual Property course during the Fall Semester of 2012
Much has been said, at great length, about the challenges that the internet poses to staid copyright law. New creative mediums carry with them their own problems, but so do novel business models. Consider Craigslist, the popular online classifieds service. Traditional print classifieds presumably never had a problem with unauthorized reproduction of the user’s ads: the user would likely be thrilled at the extra publicity beyond what was paid for, and the newspaper, having earned its money by charging a fee to print the ad, has nothing to lose should a third party reprint those ads.
The internet changes all of that. Whatever the root causes, the upshot is that in the digital age, the content of a classified ad on a site with as much traffic as Craigslist has value in and of itself. Moreover, the value of the information to Craigslist can be eroded should third parties make widespread use of that data, as user traffic will be diverted away from the Craigslist site. Craigslist can’t stop the user from reposting their information elsewhere, but they can stop third parties from obtaining the information from the most convenient source: Craigslist itself. Or, more to the point, it can try….
Craigslist defines itself as a “local classifieds and forums- community moderated, and largely free.” It advertises that one can find “jobs, housing, goods, services, romance, local activities, advice – just about anything really.” While Craigslist is incorporated as a for-profit company, it keeps the dot-org suffix to “symboliz[e] the relatively non-commercial nature, public service mission, and non-corporate culture of craigslist.”
Rather than run advertising, Craigslist makes money by charging $25 for job postings in six of its largest U.S. markets, $75 for job listings in San Francisco, and $10 for brokered apartment listings. The company uses open-source software and does not rely on technology partners to help deliver the service. Note that despite not running advertising, user traffic volume is still essential because of a positive feedback loop: more traffic increases the value to users to post their information on Craigslist rather than elsewhere, and more posted information in turn lures more traffic.
The term “scraping” refers to taking content from one website and posting it on another to drive web traffic. Craigslist forbids scraping, along with all other attempts by third parties to make use of Craigslist’s data.
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.
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).
This seems unambiguous. It’s vaguely ironic that Craigslist is getting permission to enforce rights that the original poster has no interest in enforcing (as with newspaper ads, above, extra publicity for one’s ad is a good thing), but it’s certainly understandable why Craigslist wants to prohibit scraping, and the assignment of such rights might be seen as a relatively painless cost to using a high-traffic sight to post classifieds.
Craigslist’s interface has been criticized as difficult to use. If this sentiment is sufficiently widespread then there may exist a market for intermediaries to take information from Craigslist postings and repackaging it into a more useful format. PadMapper attempts to do exactly that by showing on a map the location of apartments listed on Craigslist.
Here’s an example:
In June 2012, Craigslist sent PadMapper a cease and desist letter, claiming that PadMapper had infringed on Craigslist’s copyright. PadMapper at first complied, but then reposted the listings claiming that obtaining the data from 3taps, a separate company, was a “legally kosher way” to use Craigslist’s data.
For its part, 3taps claims that it uses “data available on the public internet the same way search engines do” and that while Craigslist may control access to the data, it doesn’t own the fact that there is a house for sale.
In July Craigslist filed suit accusing PadMapper and 3taps of copyright infringement and some ancillary trademark claims, claiming that the defendants “unlawfully and unabashedly mass-harvest[ed] and redistribut[ed] posting entrusted by Craigslist users to their local Craigslist sites.” Craigslist says they offered PadMapper a license to use the data, but that PadMapper did not agree to the terms.
The Copyright Questions
So the question becomes, can Craigslist use copyright law to protect the value it receives from its user’s content? This turns out to be yet another area where the application of existing copyright law to a novel situation produces more questions than it answers.
First, copyright does not protect ideas or other nonexpressive elements of a work, making 3taps’s claim rather persuasive. If PadMapper does not cut and paste the postings from Craigslist but instead just reports the facts that there are houses for sale, then how is Craigslist protected by copyright law? If even the original user has no copyright interest in the facts included in a post, that interest clearly cannot be assigned to Craigslist.
So, Craigslist’s attempt to preserve its interest in its user’s posted data via copyright law is something of a stretch, if an understandable one. Presumably copyright law will one day be revised with situations like this one in mind. But in the meantime, if it is ever resolved on the merits, this case should provide a valuable indication of just how far the current law can be stretched to cover such novel situations.