Terms and Conditions

Craigslist v. 3taps

Date: 

07/20/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

3taps, PadMapper

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California: San Francisco Division

Case Number: 

3:12-cv-03816-CRB

Legal Counsel: 

3taps: Allen Ruby (Skadden, Arps, Slate, Meagher & Flom LLP), Christopher J. Bakes (Locke Lord LLP); PadMapper: Venkat Balasubramani (Focal PLLC)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Lawsuit Filed

Description: 

Craigslist is a classified advertisements website with one section of its site dedicated to housing. With a simple design that has not been significantly updated since its creation, craiglist allows users to post (among other things) apartment rental listings. In order to make the material on craigslist more user-friendly, PadMapper takes the information from craigslist's apartment listings and plots these on an easily searchable map, adding search filters. 3taps is a startup committed to collecting and distributing public data, which partnered with PadMapper to assist with its access to the apartment information on craigslist.

In response to their use of craigslist's listings, craigslist sent PadMapper a cease and desist letter. After PadMapper refused to comply, craigslist filed a complaint in the U.S. District Court for the Northern District of California on July 20, 2012, against PadMapper and 3Taps. In its complaint, craigslist asserted ten claims for relief, including contract (asserting breaches of craigslist's terms of use), copyright, and trademark/unfair competition claims.

3taps answered the complaint on September 24 and filed a counterclaim, asserting claims of antitrust violations, unfair competition, and interference with economic advantage. Overall, 3taps' defense and counterclaims focused on the premise that the facts drawn from craigslist's website are not craigslist's property, but in public domain, and that craigslist has maintained an unlawful monopoly through sham lawsuits, copyright misuse, improperly restrictive terms of use, and "ghosting." In its answer on October 30, PadMapper raised similar counterclaims alleging anticompetitive conduct by craigslist.

Craigslist filed a first amended complaint on November 20, 2012. In this amended complaint, craigslist added seven additional claims, for a total of 17. The claims were as follows (with new claims in italics)

  1. Trespass: Defendants have gained unlawful access to and interfered with craigslist's computer system, servers, and network.
  2. Breach of Contract: Defendants affirmatively accepted and agreed to be bound by the Terms of Use, which they willfully, repeatedly and systematically breached by accessing the craiglist website to copy and distribute the content posted therein.
  3. Misappropriation: As competitors with craigslist, Defendants wrongfully accessed craigslist's website and computer systems to make craigslist's content available to their customers, constituting free-riding on craigslist's substantial investment of time, effort, and expense.
  4. Copyright Infringement: Defendants reproduced and distributed the copyrighted material on the craigslist website without authorization from the copyright holder, craigslist.
  5. Contributory Copyright Infringement (against 3taps): 3taps provides its users with copies and derivative works of craigslist's copyrighted works without craigslist's consent, and knowingly permits its users to copy, reproduce, and prepare derivative works from the copyrighted works.
  6. Federal Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark in interstate commerce in connection with the sale or advertising of goods is likely to cause consumer confusion.
  7. Federal False Designation of Origin: Defendants' unauthorized use of the CRAIGSLIST mark is likely to create the false and misleading impression that Defendants' products or services are provided or sponsored by craigslist.
  8. Federal Dilution of a Famous Mark (against 3taps): CRAIGSLIST is a famous and distinctive mark, and 3taps' use of the mark is likely to cause dilution by blurring, particularly depleting the strength of the mark by impairing its distinctiveness.
  9. Federal Cyberpiracy Prevention (against 3taps): 3taps' use of CRAIGGERS in the craiggers.com domain is confusingly similar to and dilutive of the famous, registered CRAIGSLIST mark.
  10. California Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark in connection with the sale or advertising of goods/services in California is likely to cause confusion as to the source and/or sponsorship of the goods/services.
  11. Common Law Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark is likely to cause confusion as to the source and/or sponsorship of the goods/services.
  12. California Unfair Competition: Defendants have engaged in unfair business practices, injuring craigslist's business, reputation, and trademarks.
  13. Violations of the Computer Fraud and Abuse Act: Defendants accessed craigslist's computers and servers without authorization or in excess of authorization and obtained valuable information in transactions involving interstate or foreign communications.
  14. California Comprehensive Computer Data Access and Fraud Act: Defendants accessed and copied data from craigslist's computer systems and servers without authorization.
  15. Aiding and Abetting Trespass (against 3taps): 3taps has encouraged and facilitated access to craigslist's computers by supporting the collection, transfer, and storage of craigslist's content.
  16. Aiding and Abetting Misappropriation (against 3taps): 3taps has knowledge that the time-sensitive "scraped" craigslist content they provide PadMapper is to compete with craigslist, therefore aiding PadMapper's misappropriation.
  17. Accounting: As Defendants have benefited financially as a result of their misconduct at craigslist's expense, craigslist is entitled to a full accounting to determine the amount of money due to craigslist.

In response, PadMapper and 3taps amended their counterclaims on December 21. PadMapper updated its counterclaims to include (attempted) illegal maintenance of a monopoly in violation of the Sherman Act and California unfair business practices, and to seek declaratory relief for noninfringement of craigslist's copyrights. 3taps alleged similar counterclaims, including multiple monopoly and contract claims under the Sherman Act, California unfair competition, and interference with economic advantage.

PadMapper and 3taps also filed motions to dismiss on December 21, 2012. PadMapper, which first filed a motion to dismiss on October 30, 2012, amended this motion to dismiss craigslist's claims for trespass (claim 1), breach of contract (2), federal trademark infringement (6), federal false designation of origin (7), California trademark infringement (10), and common law trademark infringement (11). PadMapper argued that the Copyright Act preempts the breach of contract claim and that craigslist failed to state a trespass claim against PadMapper. PadMapper also argued that the four trademark claims are precluded under the U.S. Supreme Court's decision in Dastar v. Twentieth Century Fox Film, which narrowed the scope of the Lanham Act so not to cover claims where the core issue is a copyright claim, primarily the improper reproduction of copyrighted material.

3taps moved to dismiss craigslist's claims of copyright infringement (claim 4), contributory copyright infringement (5), violations of the Computer Fraud and Abuse Act (13), and California Comprehensive Computer Data Access and Fraud Act (14). With respect to the copyright claims, 3taps argued that craigslist has no standing to assert copyright infringement of user-generated content and its asserted copyright registrations are invalid. 3taps also argued that the statutory elements of the CFAA and California statute could not be satisfied, as establishing unauthorized access requires proof of hacking which craigslist judicially admitted did not occur.

In an opposition filed on January 31, 2013, craigslist reasserted the sufficiency of its pleadings and the validity of its copyrights. PadMapper and 3taps replied in support of their respective motions to dismiss on February 13.

On February 8, 2013, noting the complexity of the lawsuit, craigslist filed a motion to bifurcate and stay Defendants' amended counterclaims pending resolution of craigslist's claims. Craigslist argued that the counterclaims would be made moot or significantly narrowed if craigslist prevailed on its claims, and consideration of the antitrust counterclaims in conjunction with craigslist's claims would increase the legal and factual complexity of the case, delaying the proceedings. PadMapper and 3taps both opposed this motion on March 1. The defendants argued that the claims at issue are intertwined and would not be rendered moot if craigslist prevails, such that bifurcation would be inappropriate. The defendants further argued that a decision on bifurcation would be premature, and a stay of discovery would result in prejudice. In a reply on March 15, craigslist maintained that resolving craigslist's claims would at least streamline the antitrust claims, while the balance of potential prejudice weighs heavily towards bifurcation. Craigslist also argued that the motion was not premature and the bifurcation should occur before the start of discovery.  

On April 29, 2013, Judge Charles Breyer issued an order granting in part and denying in part the defendants' motions to dismiss, and granting craigslist's motion to bifurcate.  The district court denied 3taps' motion to dismiss the Computer Fraud and Abuse Act and California Comprehensive Computer Data Access and Fraud Act claims, noting that the defendant's continued access after clear statements regarding authorization in the cease and desist letters and terms of use sufficiently constitutes unauthorized access under these statutory provisions. The Court also denied PadMapper's motion to dismiss the trespass claim and the breach of contract claim, which it it ruled was not preempted by the Copyright Act. PadMapper's motion to dismiss the trademark claims was also denied, as the Court held that they were not precluded by Dastar. With respect to the copyright claims, the Court held that craigslist sufficiently established the originality of the compilation of the posts to warrant copyright protection, even in the individual posts themselves, and sufficiently registered copyright for this content.

However, the Court ruled that craigslist was the exclusive licensee of this content only from July 16, 2012 through August 8, 2012, during which period users were presented with a notice to click confirming craigslist's position as the exclusive licensee of the post. Outside of those weeks when the exclusive license confirmation statement was in use, the court found that craigslist could not sue for copyright infringement. Accordingly, the Court granted the motions to dismiss the copyright claims with respect to user-created posts submitted before July 16 or after August 8, 2012. Lastly, the Court concluded that "the likelihood of streamlining discovery for and adjudication of the antitrust counterclaims based on the outcome of Craigslist's claims-even if those counterclaims must ultimately proceed-warrants bifurcation," and therefore granted craigslist's motion to bifurcate and stay discovery on the antitrust counterclaims.

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Massachusetts Courts Mull Right of Access to Deceased Family Members' E-mail

A case in the Massachusetts Court of Appeals, Ajemian v. Yahoo!, Inc., decided on May 7, is the latest case dealing with ownership of digital assets after death.

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Copyright of “Public Facts”: Craigslist v. PadMapper

Craigslist was meant for the common good, or as founder Craig Newmark puts it, “doing well by doing good.”  At least, that has been its announced mission since it began as an email distribution among friends.

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Social Media Policies: Fed Labor Law Problem?

A Connecticut company suspended and then fired an employee for making disparaging comments on Facebook about the company and about her supervisor.

Not in dispute is that the employee’s actions violated the company’s social media and other personnel policies, which (among other things) prohibited depicting the company ‘in any way’ on Facebook or other social media sites or from “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

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Back in Court, GateHouse Gives Not Great News Based on Creative Commons License

GateHouse Media, Inc., a publisher of local newspapers is suing That's Great News, LLC (TGN) in Illinois federal district court, claiming breach of contract and copyright infringement.

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Sedersten v. The Springfield News-Leader

Date: 

09/02/2009

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Gannett Missouri Publishing, Inc. d/b/a The Springfield News-Leader

Type of Party: 

Individual

Type of Party: 

Large Organization
Media Company

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Missouri

Case Number: 

09-3031-CV-S-GAF

Legal Counsel: 

Jason C. Smith, Bryan O. Wade - Husch Blackwell Sanders, LLP-Spfd

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Quashed

Description: 

John Sedersten subpoenaed The Springfield News-Leader to obtain information about "bornandraisedhere," a pseudonymous commenter who posted a comment to an article on the News-Leader's website.  The subpoena issued in conjunction with Sedersten's civil lawsuit against the City of Springfield, Missouri, Springfield's police chief, and a former Springfield police officer.  The News-Leader article discussed county prosecutors' decision to drop charges against the police officer, a decision that "bornandraisedhere" sharply criticized in his/her comment.

Gannett Missouri Publishing, the publisher of the News-Leader, objected to the subpoena, and Sedersten moved to compel the newspaper to turn over information.  In December 2009, the court denied Sedersten's motion to compel, ruling that bornandraisedhere's identity was not central to establishing Sedersten's negligence case against the City and its police chief.  The court also recognized that the commenter was entitled to First Amendment protection and had not waived that protection by agreeing to the News-Leader's privacy policy, which reserves to the newspaper "the right to use, and to disclose to third parties, all of the information collected from and about [users] while [using] the Site in any way and for any purpose."

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Sorry Jack Thompson, Your Comprehension of Section 230 Is in Another Castle!

On this blog, I typically write about frivolous or ill-considered lawsuits. In the long, long ago, before I came to law school, I wrote about video games.

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Mi Casa Es Su Casa — But I Set the Rules

Paul Klocko got a surprise in the mail in April: a letter on official stationary from Weston, Wisconsin administrator Dean Zuleger, demanding that Klocko stop posting comments on the web criticizing him.  The letter also asked that Klocko "come out from behind the cloak" and meet Zuleger in person.

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Judge Issues Opinion Overturning Lori Drew's Conviction

As originally reported by Orin Kerr at The Volokh Conspiracy, a federal district judge in California issued an opinion on Friday overturning the jury verdict finding Lori Drew guilty of a misdemeanor violation of the Computer Fraud

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Drew (Tentatively) Acquitted in MySpace Suicide Case

A federal judge yesterday tentatively acquitted Lori Drew, the Missouri woman convicted for her involvement in a MySpace “cyberbullying” hoax that allegedly resulted in a young girl’s suicide.  If it sticks, the acquittal will help reverse the momentous change in online liability that Drew’s earlier guilty verdict threatened to set in motion.

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Gingrich v. The Truth About EFCA.Org

Threat Type: 

Correspondence

Date: 

05/13/2009

Party Receiving Legal Threat: 

The Truth About EFCA.Org; EFCANOW; Tucows, Inc.; ContactPrivacy.com; Twitter, Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Organization

Publication Medium: 

Micro-blog
Website

Relevant Documents: 

Status: 

Pending

Description: 

Counsel for Newt Gingrich, Saul Anuzis, and American Solutions for Winning the Future sent a cease-and-desist letter to The Truth About EFCA.org, a website advocating in favor of enacting the proposed Employee Free Choice Act. The website is run anonymously, so the letter was sent to its domain registrar ContactPrivacy.com (owned by Tucows, Inc.).  It was cc'd  to Twitter, Inc. 

The letter complains about a Twitter user going by the handle EFCANOW who tweeted the following on May 2, 2009:  "Join @newtgingrich @sanuzis in signing the EFCA Freedom Not Fear petition at http://action.americanright... WSJ." The letter demands "that you immediately take down an illegal and fraudulent posting on Twitter . . . which falsely purports to be written by our clients and unlawfully uses the name of Messrs. [Newt] Gingrich and [Saul] Anuzis."  

The letter asserts that the continued publication of the offending tweet "can expose any and all involved parties (including Twitter, ContactPrivacy.com and/or TwoCows [sic]) to substantial, ongoing, and even personal liability," and claims that the tweet constitutes trademark infringement, violation of Gingrich's and Anuzis' publicity rights, false advertising, false designation of origin, tortious interference with prospective economic advantage and contractual relations, common law and computer trespass, conversion, traditional fraud and wire fraud, breach of contract, violation of the Computer Fraud and Abuse Act, and RICO violations.

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Another Reminder to Choose Your Hosting Service Carefully

My colleague Ethan Zuckerman just put up a disturbing post about Kubatana, a prominent Zimbabwean NGO, which saw its site taken down because its hosting provider, Bluehost, got cold feet after it discovered the site contained content from (gasp!) Zimbabwe.

Kubatana, among other things, hosts websites for prominent activist organizations like Women of Zimbabwe Arise.  For the past two years, Kubatana has hosted a joint blog for a wide range of Zimbabwean citizens that has, according to Ethan, "been one of the key sources of information and perspective for people around the world who follow Zimbabwe, and a critical outlet for Zimbabweans who have few other ways to communicate."

Ethan reports:

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Jury Finds Lori Drew Not Guilty on Felony Charges

Wired/Threat Level reports:

Lori Drew, the 49-year-old woman charged in the first federal cyberbullying case, was cleared of felony computer-hacking charges by a jury Wednesday morning, but convicted of three misdemeanors. The jury deadlocked on a remaining felony charge of conspiracy.

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Lori Drew Trial Ongoing, Legal Issues Still Unclear

Lori Drew's trial for allegedly violating the Computer Fraud and Abuse Act (CFAA) began this week.  There has been some great coverage of the proceedings, including the following highlights:

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Lori Drew Trial To Start Next Week

Believe it or not, the criminal case against Lori Drew heads to trial next Tuesday. Federal prosecutors in Los Angeles indicted Drew last May for her alleged role in a hoax on MySpace directed at Megan Meier, a 13-year-old neighbor of Drew's who committed suicide in October 2006.  Prosecutors claim that Drew violated the Computer Fraud and Abuse Act (CFAA), 18 U.S.C.

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Will Your ISP Stand Up for Your Free Speech Rights?

There are a lot of things to consider when making the decision to launch a blog or website, including questions of cost, ease of use, and ownership of content.  Understanding how these considerations impact your legal rights and potential liability can help you make an intelligent choice as to what platform to use and what precautions to take when you speak online (we've got a whole section on these concerns, and others, in our legal guide).  But one area most people tend to overlook is whether their

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United States v. Drew

Date: 

05/15/2008

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Lori Drew

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California

Case Number: 

08-CR-582

Legal Counsel: 

H. Dean Steward; Orin S. Kerr

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Verdict (plaintiff)

Description: 

On May 15, 2008, Lori Drew was indicted in federal court in California for her alleged role in a hoax on MySpace directed at Megan Meier, a 13-year-old neighbor of Drew's who committed suicide in October 2006 after a "boy" she met on MySpace abruptly turned on her and ended their relationship. The boy was allegedly Lori Drew, who pretended to be 16-year-old "Josh Evans" to gain the trust of Megan, who had been fighting with Drew's daughter.

The grand jury charged Drew with conspiracy and three counts of accessing protected computers without authorization in violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. The indictment charges that

[o]n or about the following dates, defendant DREW, using a computer in O'Fallon, Missouri, intentionally accessed and caused to be accessed a computer used in interstate commerce, namely, the MySpace servers located in Los Angeles County, California, within the Central District of California, without authorization and in excess of authorized access, and, by means of interstate commerce obtained and caused to be obtained information from that computer to further tortious acts, namely intentional infliction of emotional distress on [Meier].

Update:

06/16/2008- Drew pleaded not guilty.

07/23/2008- Drew filed three motions to dismiss the indictment on grounds of failure to state an offense, vagueness, and unconstitutional delegation of prosecutorial power.

08/1/2008- Electronic Frontier Foundation and the Cyberlaw Clinic at Harvard's Berkman Center for Internet & Society submitted an amicus brief supporting dismissal of the case

09/4/2008 - In a hearing, Judge Wu denied Drew's motions to dismiss the indictment based on vagueness and improper delegation of authority, but kept her motion to dismiss for failure to state an offense under advisement. 

11/05/2008 - Drew filed a notice of waiver of her right to a jury trial, but the government refused to consent to the waiver.  Under Federal Rule of Criminal Procedure 23, a defendant cannot waive a jury trial without the consent of the government. 

11/10/2008 - Judge Wu indicated in pretrial conference that he was inclined to grant Drew's motion in limine to exclude evidence of Megan Meier's suicide at trial on grounds of lack of relevance and tendency of the evidence to unfairly prejudice the jury.

11/14/08 - Judge Wu indicated at a hearing that he would allow evidence of Megan Meier's suicide at trial, but that he would instruct jurors that the case was not about the suicide and that Drew is not charged with causing the suicide.

11/26/08 - The jury returned a verdict acquitting Drew on the felony CFAA charges and finding her guilty on misdemeonor CFAA charges. The jury deadlocked on the felony conspiracy count. Counsel for Drew indicated that he would file a motion for a new trial, and the court set a hearing for December 29, 2008.  The court took the Drew's renewed motion for judgment of acquittal under submission.

12/30/08 - The Government filed an ex parte application to dismiss the felony conspiracy count (Count 1) without prejudice.  Drew responded, arguing that dismissal should be with prejudice.

1/8/09 - The court held a hearing on Drew's motion for judgment of acquittal, but did not make a ruling. Judge Wu indicated that he might issue a written ruling within two weeks.

7/2/09 - Judge Wu announced that he would be dismissing all charges against Drew.

8/28/09 - Judge Wu issued an opinion granting Drew's motion for judgment of acquittal.

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