The Craigslist Lawsuit

3taps and craigslist have reached a global settlement of 3taps' antitrust claims and craigslist's claims against 3taps.

3taps built a data exchange that aggregated user-generated data housed on various websites and then made that data available through an API to developers, including PadMapper and Lovely.

As recently as 2010, craigslist welcomed innovative uses of the publicly available data posted on by its users.  Craig Newmark—the founder and Chairman of craigslist—publicly invited such innovation on Quora.  Over the next two years, as innovators like PadMapper and AirBnB began to thrive, craigslist reversed course, and punished the innovators it previously welcomed to use the data.  In February 2012, craigslist rewrote its Terms of Use, abandoning its long-articulated position that users own their own content which was freely available on the “public” part of craigslist's website.  Less than one month later, craigslist sent 3taps a cease and desist letter, banning 3taps' access to craigslist.  When 3taps replied that it did not access craigslist and instead obtained the data from Google, craigslist concocted a scheme to allow it to assert ownership over copyrights to user postings so it could bring copyright infringement claims against 3taps and other innovators who accepted Mr. Newmark's invitation.  Without notice to its users, craigslist inserted language into its posting process that it claims gave it an exclusive license to user posts.  Four days later, craigslist sued 3taps.

After craigslist filed the lawsuit, members of the public and the Electronic Frontier Foundation (EFF) discovered craigslist's scheme to hijack users' copyrights in their posts.  The ensuing widespread public outrage forced craigslist to drop its exclusive license scheme.  craigslist then began interfering with Google and other search engines, effectively shutting off 3taps' access to user-generated content originally posted on craigslist, forcing 3taps to purchase the data from third parties accessing craigslist directly.

craigslist then amended its lawsuit to claim that accessing publicly available data could be a violation of the hacking statute, the Computer Fraud and Abuse Act (CFAA)—the same statute that led to the demise of Aaron Swartz.  3taps responded that craigslist's actions constituted an unfair and anticompetitive scheme that harmed competition and users.

After three years of intense litigation, much has been achieved.  For example:

  • The Court has ruled that users—not craigslist—own the copyrights in their postings.
  • After years of alleging that 3taps' access to the user-generated postings on craigslist harmed and impaired its servers and systems, craigslist finally conceded in Court that no such harm or impairment ever occurred.
  • Craigslist completely rewrote its Terms of Use, removing many of the most abusive clauses.

As part of the settlement, 3taps and its founder, Greg Kidd, have agreed to pay craigslist $1 million, all of which must then be paid by craigslist to the EFF, which supported 3taps' position on the CFAA in this litigation, and continues to do great work for Internet freedom generally.  Mr. Kidd's investment firm, Hard Yaka, has also committed to make a substantial investment in PadMapper to provide it with the resources to continue to innovate and serve the post-craigslist marketplace.

Although 3taps lacks the resources to continue the fight, this settlement provides much needed resources to the EFF, as there is still much to be done on the issues raised in this case.

For example, the question remains whether private companies that maintain public websites can selectively exclude visitors, exposing the banned visitor to civil and criminal liability under the CFAA.

Furthermore, this is unlikely to be the last litigation involving craigslist's copyrights, particularly given craigslist's current practice of selectively obtaining copyright assignments and registrations (the prerequisite to a copyright infringement lawsuit) in certain user-generated posts, but failing to inform its visitors which posts it owns.  This effectively creates a copyright litigation trap for unwary visitors.

Finally, it remains unresolved whether craigslist's well-recognized practice of "ghosting" (the hiding or interception of user postings and emails) without the users' knowledge or consent is legal or ethical.

3taps intends to conduct an orderly wind down of its business, and will make its API source code, the settlement agreement, and other legal filings and public policy resources available on the website for any and all who care about and want to work on these issues. We genuinely hope this lawsuit creates a legitimate debate about whether there should be open and equal access to publicly available data on the Internet.

For additional inquiries, please contact:
Greg Kidd
Hard Yaka