Craigslist, a company which markets itself as being a public
service rather than a commercial enterprise, has filed a lawsuit
against two developers who created services making it easier to use. The New York Times ran an article
on Sunday describing Craigslist’s suit against Padmapper, a website that allows users to
browse listings from Craigslist and other housing websites by their location on
a map, and 3Taps, the company that provides PadMapper with its Craigslist data. According to the Times, founder Craig Newmark claims that Craigslist only objects to
such sites when they increase the load on the Craigslist servers, but 3Taps and
PadMapper avoided this conflict by using the Google- and Bing-cached versions
of the listings.
The suit brings copyright and trademark claims against 3Taps
for copying Craigslist’s data, and the Craigslist layout on its subsidiary
search engine craiggers. 3Taps argues
that its API only uses data from Craigslist, and data is not
copyrightable. However, the visual
presentation of data can be copyrightable;
whether a court would find infringement would depend on the copyrightability of
the presentation and the similarity of the craiggers layout, among other
factors.
3Taps also includes photographs and the text of
descriptions, which are copyrighted by their creators. Though this would seem to give the original
posters, not Craigslist, a claim against 3Taps, the Craigslist Terms of Use
claim to give Craigslist the right to enforce copyright claims for posted
content. However, the Copyright Act only allows those who have an exclusive
license the right to sue for copyright infringement, something that Craigslist
certainly does not have: you are free to take any post you make on Craigslist
and also post it on Facebook or your blog or a competing classified site, in
any form you choose.
Padmapper is accused of displaying content “identical to the
craigslist postings as they appear on craigslist’s website, except for the
addition of a ‘PadMapper Bar’ to the left of the ad.” In fact, it is identical
to the craigslist posting because PadMapper loads the craigslist ad from
craigslist in a frame, similar to how Google Images or Google Translate display
pages.
Although this practice is unpopular with some web
developers, it is not considered copyright infringement in the United States
because Padmapper doesn’t store a copy of the content on its own servers (see Perfect 10 v. Amazon.com, which held
that linking, including framing, does not violate the Copyright Act). The only
content that appears on Padmapper itself is noncopyrightable data: prices,
addresses, and numbers of bedrooms and bathrooms.
What it boils down to is that Craigslist is failing to provide
functionality its users want, and suing anyone else who tries. Newmark claims
that it’s because the Craigslist community doesn’t want others making money off
Craigslist data. But that’s clearly not true of those searching the listings,
or these apps wouldn’t be so popular. And it wouldn’t make sense for those
posting the listings, who presumably want as many people as possible to see
their ads—made easier by increased search functionality. So who’s left to
object? Only Newmark and Craigslist itself.
Update: Craigslist has changed its terms of service to give it exclusive rights to posted content. But an exclusive license “is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed.” (17 USC 204(a)). It’s not clear whether a clickwrap license would satisfy this requirement.