Craigslist, which hasn’t altered its website design much since it was founded in 1995, has begun testing user-generated maps in some housing ads in the San Francisco Bay and Portland, Oregon areas.
The move is an ironic one, bitterly so for some, as Craigslist recently filed suit against two other startup Web companies for copyright and trademark infringement, because the companies accessed Craigslist post data to create unofficial maps.
Now one of the defendants being sued by Craigslist, a San Francisco startup called 3taps, is sounding off: The company’s founder believes that a major reason Craigslist has introduced maps is because its legal claim asserting it holds the copyright and trademark over the user-generated advertisements posted on Craigslist is weak.
“I think the reason they’re doing maps, begrudgingly starting to innovate, is because they are getting more and more nervous that their litigation method isn’t working,” said 3Taps founder Greg Kidd in a phone interview with TPM.
Kidd’s company, 3taps, launched in 2009 as a kind of data purveyor, scooping up user-generated posts on sites including eBay and job-hunting directory Indeed of off search engines.
Or, as Craigslist put it in its lawsuit filed in the Northern District of California, 3taps initially seemed to have been founded with the goal of “creating a resource to aggregate data from a variety of sources.”
But in recent months, the 3taps website shifted its focus almost exclusively to Craigslist, and now advertises itself as “a platform for developers…for building on top of Craigslist data.”
3taps claims that this is just a temporary shift, as its website states: “Once we perfect the Craigslist firehose, we’ll bring in other sources like: eBay, Etsy, indeed, Linkedin, etc.”
But Craigslist isn’t having any of it: The company accuses 3taps of using the trademarked Craigslist name to promote its own unaffiliated and unofficial product and services, including a spin-off website, Craiggers, which Craigslist’s lawsuit says “essentially replicates the entire craigslist website,” user-generated postings and all.
Craigslist also claims that it holds “exclusive rights to…the user-generated postings on its website,” which it deems “creative works.” As the lawsuit states:
“Each user-generated posting on the craigslist website is itself an original work of creative expression, as it includes unique written descriptions o fthe goods or services offered for sale, for example, and often include photographs or other creative works.”
3tap’s Kidd disagrees with this characterization of housing ads as “creative works” most of all.
“A person’s address, how many rooms and bathrooms they have in their apartment or house, all of this is factual information, which isn’t copyrightable,” Kidd maintained to TPM.
By way of evidence for his point, Kidd pointed to Craigslist’s recent introduction then abrupt withdrawal of a new terms-of-service agreement for users granting Craigslist the “exclusive license” to use the post data.
“Craigslist finally admitted they don’t have exclusive rights to this data,” Kidd said, which is why his company has continued to include it in its products.
Some lawyers specializing in Internet intellectual property agree that Craigslist’s claims in this case are dubious at best.
“Craigslist’s copyright claim looks very questionable to me,” said David Post, law professor at Temple University and contributor to the legal blog the Volokh Conspiracy, in an email to TPM. “You can get copyright if you compile or present facts in a particularly creative fashion – but Craigslist doesn’t do that…I can’t speak to their other claims (trademark, etc.) – but the copyright claim doesn’t look very strong to me.”
However, other digital IP lawyers believe that thanks to the fact that each user-generated Craigslist ad post is not merely factual information alone, but factual information presented in a specific way — think an apartment ad with photos and flowery or assertive sales language — the company does have a case that it holds the copyright over such content.
“I think most courts would conclude both the photos and text are sufficiently original to merit a thin copyright protection that would preclude exact copying,” wrote Rutgers Law professor Greg Lastowka in an email to TPM. “In any event, copying the photos and written text is not simply copying particular facts — it is copying the particular way the facts about the post are presented and expressed.”
Still other experts point out that it’s not a clear cut matter for either side, given that Craigslist’s terms of use, which all users must check-off on before posting ads on the website, currently don’t say anything expressly about giving the website “exclusive license” to their content. In fact, the terms of use grant users “a limited, revocable, nonexclusive license to access craigslist and use craigslist.”
As Jessica Litman, a law professor at the University of Michigan, explained to TPM:
“A court or jury deciding this case would need to figure out (1) to what extent the listings contain expressive choices as well as bare facts; (2) whether the expressive choices are made by Craigslist or by the advertisers who post ads, and, if the latter, whether the TOU in fact effectively assigns the ad posters’ copyrights to Craigslist; and (3) whether 3taps and Padmapper are copying the bare facts or the expressive selection and arrangement of the facts in their competing listings.”
Padmapper is the other company Craigslist names in its lawsuit along with 3taps, created and operated by one solitary developer named Eric DeMenthon, who recently told Wired he was actually happy that Craigslist appeared to be using his idea to create maps of housing listings.
3taps, for its part, is still hoping to speak with Craigslist about settling the dispute out of court, but Kidd isn’t optimistic.
“We’re preparing our response for a mid-September filing,” Kidd told TPM.
