Craigslist, 3taps & The Court Battle For The Soul Of Public Data

Who owns the kind of information collected by Craigslist? The classifieds site has staked its claim in a series of lawsuits against apartment listings mapper PadMapper and Craigslist data scraper 3taps. On Monday, 3taps will file a bold counterclaim, aiming for a victory that would bring a new era of pubilc information.

ReadWriteWeb has learned that 3taps plans to file an answer to Craigslist's lawsuit on Monday, September 24, denying many of Craigslist's claims. Alongside this response, 3taps will file an antitrust countersuit, alleging that Craigslist maintains a monopolistic control over numerous markets related to online classified advertising. If successful, 3taps could open up the market to numerous innovations atop Craigslist data  and bring about the user interface and search features, whose lacking seem to be exemplified by the popularity of sites such as PadMapper and others who have fallen to Craigslist litigation.

Before we get into the details of 3taps' answer and countersuit, let's look at the events and details leading up to this point. In June, Craigslist sent a cease-and-desist letter to PadMapper, the Google Maps mashup that aggregates apartment and rental listings from a number of sources, craigslist included. At first, PadMapper founder Eric DeMenthon acquiesced, announcing that all craigslist content would be wiped clean as he "wasn’t able to get a meeting or convince Craigslist’s lawyer that PadMapper was beneficial to Craigslist and apartment hunters in general." Several weeks later on July 9, after first urging users to replenish the site's listings on their own, DeMenthon announced that he would be bringing Craigslist listings back to the site.

"I’ve found a way to include them that I’m told is legally kosher since it doesn’t touch their servers at all," wrote DeMenthon, "but it still seems somewhat dickish to go against their wishes in this, and I’ve always had a lot of respect for what they’ve done for the world."

Craigslist seemed to agree that it was dickish and responded in kind with a lawsuit on July 20, arguing that both 3taps and PadMapper violate copyright laws in their use of Craigslist's "protected content." In the suit's introduction, Craigslist argues that it "has worked hard and invested heavily for many years so that its users can use its local community sites largely free of charge, and free from third-party advertising and marketing" and that PadMapper and 3taps work to "misappropriate wholesale and commercially exploit" Craigslist content. The suit goes on to describe Craigslist as "the world's largest online forum for free local classified advertising and community discussions," noting that "more than 60 million Americans visit Craigslist each month, and they collectively post several hundred million classified ads each year."

3taps Answers Craigslist

This exactly the fight 3taps founder and CEO Greg Kidd has been seeking ever since he launched 3taps in April 2011.

In a manifesto-esque essay against Craigslist's claims, titled "3taps Defense Against Copyright Trolls," Kidd argues that "the choice by [Craigslist] to litigate rather than innovate to respond to completion in search and display methods for big data is a chilling hairball laid at the foot of the open Internet."  The "liberation" of data that Craigslist cites in its lawsuit has been a common refrain for the early Twitter investor, Square advisor and one-time member of the Board of Governors of the Federal Reserve, where, Kidd argues, "the notion of preventing the free flow of information pertaining to prices or offers of supply and demand in public markets is anathema."

Central to 3taps' response to Craigslist's lawsuit are the ideas that "public facts are public property" and "open access requires equal access". The company argues that it is not bound by Craigslist's Terms of Use, since it claims that it never touches Craigslist's servers to obtain the data it provides to its customers via API. It also argues that the data that it does acquire does not and cannot belong to Craigslist in the first place.

"The [Craigslist] data in question is indexed by public search engines and is made available in the public domain," writes Kidd. "One does not have to belong to or even go to Craigslist to find this information on the description, price, and time of availability of a posting. The information is freely available in the public domain and is a fundamental component of transparency of supply and demand and price discovery that are the foundation of free markets."

This issue of copyright, however, is a sticky one and not clear cut for either side, according to Kurt Opsahl, a senior staff attorney with the Electronic Frontier Foundation. While Opsahl says that Kidd’s argument that facts cannot be copyrighted is already commonly accepted as law, what may not be clear cut in this case is whether or not a Craigslist ad is pure fact or contains an element of creativity that can be copyrighted.

"In the U.S., copyright protects creative expression, and not facts. Let's use the 'Jesus Tap Dancing Christ' CL ad as an example," writes Opsahl. "Here, the facts include that a 5-speed teal 1995 Pontiac Grand Am is for sale, at $700, and its features include tires, doors, steering wheel, seats and radio. However, elements like the use of a picture of a Grand Am riding a blue-haired unicorn as a reason to buy the car are creative expression."

This doesn't, however, necessarily put Craigslist in control of the content, says Opsahl. Instead, "users own any rights to the creative expression in their posts. Thus, it is not Craigslist's right to assert." Craigslist briefly attempted to claim exclusive ownership over posts shortly after filing its lawsuit, but soon reversed its decision following a discussion with the EFF.

3taps on the Offensive

In addition to its response to Craigslist's July 10 lawsuit against it, 3taps intends to file a countersuit alleging that the classified ad site violates antitrust laws. This countersuit alleges that Craigslist enjoys monopolistic control over numerous markets related to online classified advertising. 3taps will argue that Craigslist has a monopoly on gathering, indexing and publishing the factual information contained within classified ads. 3taps will also assert that Craigslist has acted in an anticompetitive manner, shutting down potential competition through a series of cease-and-desist letters and lawsuits. Kidd says in an email to ReadWriteWeb that Craigslist's past actions in dealing with potential competitors and even users are "IMHO, deceptive, unfair, and now given CLs dominance in the marketplace, anti-competitive."

In Kidd's words:

We will file two counters to the CL sham litigation. One is a defense on the intellectual property grounds pointing out the CL copyright like claims are bogus. But the second response, will be a Sherman anti-trust claim filed by the leading anti-trust law firm in the United States: Skadden Arps. We will ask for discovery to unfurl a bunch of the stuff CL has pulled while representing itself as a not-for-profit .org community service (which is how most people know them). . . . CL revenues have grown from millions to tens of millions to hundreds of millions (we have the data now of course). Jim and Craig never profit shared or gave anyone else options or other equity. They have less than 50 workers. Their technology outlays are minimal because they haven't upgraded the system in a decade. . . . and have no other expense that we can discern (except suing people and eBay). It’s not clear where those hundreds of millions have gone. And to be clear, I've got no problem with people doing well. . .

As part of Craigslist's lawsuit, the company cited craiggers as part of 3taps injurious actions against it. Craiggers, which 3taps recently shuttered in light of the lawsuit, allowed users to access Craigslist content with a fully revamped interface, search across localities and even save searches. (I have reviewed the site, saying simply that it "blows Craigslist out of the water".)

It is this sort of innovation that Kidd hopes to support with his antitrust claim. Kidd also cites Kayak, which aggregates flight data from various sources to provide a singular user interface, as an example of what can be done when companies don't stand in the way of innovation around public data.

The EFF's Opsahl agrees. "The real solution for this would be follow on innovation," he says, "to allow the room for other innovators to come along and enhance the value of this information for the community."

Craigslist and its attorneys have not responded to requests for comment.