Good News: Craigslist drops exclusive license to your posts

Craigslist has recently engaged in a lawyer-driven campaign to ensure that no third party can use any of the data posted to its site:

1. Quite apart from the "exclusive license" language that it recently added (and has now dropped), it had recently amended its terms of use to make absolutely clear that no one has the right to use any data posted to its site, whether directly or indirectly, under any circumstances.

2. It sent cease-and-desist demands to various parties, including PadMapper, warning them not to use any such data but, as much as anything, making clear that it was revoking any implied license that the law might find to exist from CL's having allowed parties to scrape its data in the past (i.e., it was saying, in effect, no more loose community norms will apply but only the heavy hand of the law).

3. It also sued 3Tap for having set up a business that used CL data from the Google cache and offered it to third parties to enable them to have access to CL data without having to get it from the site directly. 3Tap contended that it could lawfully use the cached data without violating CL's terms of use or any copyright held by CL in any such data. CL strongly disagreed and set out its claims of infringement, etc. in a complaint filed in federal court just recently. The 3Tap business model may or may not have withstood this legal challenge but the salient fact here is that CL faced a lot of uncertainty on the legal issues involved, meaning that it might ultimately have lost on its claims and further meaning that 3Tap's business model would serve as a ready-made way for third parties to gain unfettered access to the CL data, at least until CL were able to obtain a preliminary injunction in the lawsuit or an ultimate victory on its claims. To do that, however, it would have needed to run the risk of potentially losing on its claims and thereby having helped create some pretty bad legal precedents for its business model.

4. That, to my thinking, is the only reason why CL would have taken the otherwise insane-looking step of changing its terms of use to demand that posters give it an exclusive license to all items posted to the CL site. That sort of license represents a bonehead decision from almost any angle one looks at it except one, and that is the legal angle of giving CL a strong position to claim that 3Tap can no longer use any of the data taken from the Google cache, whether or not 3Tap was deemed to have been bound by the CL terms of use. If CL had exclusive rights to enforce claims relating to the CL postings, then it could try to shut down 3Tap whether or not 3Tap was technically bound by the CL terms of use because it could do so from the copyright angle. In other words, the whole point of having tried to claim exclusive rights to the posts was to have a weapon against 3Tap to block it from having an avenue by which it could open up CL posts for use by potentially innumerable third parties via 3Tap - that is, to plug the final loophole in its legal system aimed at strict enforcement of the terms of use.

5. Any agreement, however, that amounts to a bare assignment of the right to sue on a copyright (with the assignor retaining effective ownership rights to everything else besides the right to sue) is of dubious enforceability, as copyright troll Righthaven found out to its dismay when it was upended by the combined efforts of Democratic Underground, Fenwick & West, and EFF - who convinced a judge to toss all its cases on the ground that such an assignment was ineffective and could not be used as a basis upon which to sue alleged infringers. Now the legal doctrines involved here can get complex and I have not had a chance to assess them carefully in the 3Tap/CL context. But I would wager that CL had lawyers telling it that, if the new terms amounted in practice only to a bare assignment of the right to sue on copyright (and what other reason is there for this?), there was still some potentially serious doubt on whether it would be able to prevail against 3Tap even though CL could now claim that it had the exclusive right to sue to enforce copyrights relating to CL posts.

6. This left CL with only one practical choice, which it took: remove its data from the Google cache or at least set it up so that third parties could not use such data. And that is precisely what it did, just a couple of days ago (see http://news.ycombinator.com/item?id=4351207 for an HN discussion on this event, with link to relevant article).

With the final step above, I assume that CL has effectively crippled the 3Tap business model. Therefore, it no longer needs to impose insane-looking licensing terms on persons wanting to post to its site and it has dropped those terms. It has simply found a more practical way to defeat the 3Tap model, rendering the oppressive licensing terms unnecessary.

The bottom line to what has happened here, in my view, is that CL is engaged in a heavy-handed, lawyer-driven campaign to guard its turf at all costs but doesn't really want to say this publicly for its own prudential reasons. This too is perhaps why EFF is being so diffident in this post, trying to celebrate the removal of obnoxious language from the CL terms of use without really giving convincing reasons for why that language found its way into the terms of use in the first place or why (short of CL being on a drunken toot) such language underwent a here-today-gone-tomorrow transformation for no apparent good reason over a very short period of time. I am only speculating here but it looks like EFF pulled a punch here.

I'd have expelled Craig for that bit of buffoonery, rather than walk on eggshells and tapdance around the fact that he's being a two-faced ass.

You bet your ass I'm mad. This kind of idiocy sickens me, especially coming from a group as supposedly altruistic as the EFF.

"Disclosure: Craig Newmark, founder of craigslist, is a member of EFF’s Advisory Board, and craigslist has donated to EFF."

And why can't the EFF just quote the current passage in its changed form? The post itself is still unclear. Is this the affected passage?

> You automatically grant and assign to CL, and you represent and warrant that you have the right to grant and assign to CL, a perpetual, irrevocable, unlimited, fully paid, fully sub-licensable (through multiple tiers), worldwide license to copy, perform, display, distribute, prepare derivative works from (including, without limitation, incorporating into other works) and otherwise use any content that you post. You also expressly grant and assign to CL all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).

http://www.craigslist.org/about/terms.of.use

You don't want your users unexpectedly harmed by saving them hours of their precious lives with a better UI. That would be a tragedy.

i.e.: http://newyork.craigslist.org/mnh/sub/3195940666.html is hosted on http://newyork.craigslist.org/

but http://newyork.craigslist.org/robots.txt makes an HTTP 302 redirect to http://www.craigslist.org/robots.txt, but http://www.craigslist.org/robots.txt is only a valid robots.txt for http://www.craigslist.org, and not for http://newyork.craigslist.org/, as the host, protocol and port of the robots.txt file is an essential part of its validity range.

so basically newyork.craigslist.org does not have any robots.txt and can be crawled as you like.

if you want more about it, see https://developers.google.com/webmasters/control-crawl-index...

  >The directives listed in the robots.txt file apply only to 
  >the host, protocol and port number where the file is hosted.

Hold on a sec here. Are they saying that Craigslist postings are now licensed under CC ShareALike (http://creativecommons.org/licenses/by-sa/3.0/)? If so that's probably the most substantial point in this post.