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3Taps Defense Against Copyright Trolls


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3Taps Defense Against Copyright Trolls

  1. 1. 3taps Defense Against Copyright TrollsOn July 5, legal counsel representing Craigslist sought to block the popularapartment mapping site Padmapper and data provider 3taps from use of Craigslistdata. Craigslist makes numerous claims regarding copyright and trademarkviolations right through to federal cyberpiracy along the way to protesting that theyhave suffered “irreparable and incalculable harm and injury.”3taps views the overblown claims as reflective of a copyright troll mentality andtactics. Furthermore, the Craigslist recent revamp to its Terms of Use represents amassive overreach of the application of copyright law. The choice by CL to litigaterather than innovate to respond to completion in search and display methods for bigdata is a chilling hairball laid at the foot of the open internet.Most sadly of all, the litigation directly contradicts the assurance made byCraigslist’s own founder Craig Newmark on Quora in response to the question “Whyhasn’t anyone built any products on top of the Craigslist data?”Craig’s Answer: “Actually, we take issue only with services which consume alot of bandwidth.” Craig Newmark on Quora July 14, 2010Given that 3taps sourcing of Craigslist data and API provisioning to PadMappertakes no Craigslist bandwidth, something is clearly amiss. What’s going on?The advocacy page of 3taps lays out two principles that Craigslist is objecting to: i) Public facts are public property. People have the ability to discover publicly available facts about items offered for exchange. These facts are public property, and made discoverable without a need to ask permission ii) Open access requires equal access. Factual data is accessible to all on an equal basis, meaning that people have access to the same body of data at the same time.Craigslist does not accept, and thinks its Terms of Use can ride rough shod over,Supreme Court rulings that make it clear that facts are not copyrightableand that theexpression of information must meet a minimum of original creativity to be protectedby copyright.11International News Service v. Associated Press, 248 U.S. 215 (1918), is a United States SupremeCourt decision that upheld the common lawrule that there is no copyright developed the common lawdoctrine of misappropriation through the tort of unfair competition. In the case, the court struggled todistinguish between interference with business practices versus interference in facts andwith intellectual property rights. Wikipedia and Feist Publications, Inc., v. Rural Telephone Service [1]Co., 499 U.S. 340 (1991), commonly called Feist v. Rural, is an important United States Supreme
  2. 2. Classified exchange postings are merely factual statements of limited creativityproduced by users to promote exchanges of goods and services between seekersand providers. The CL data in question is indexed by public search engines and ismade available in the public domain. One does not have to belong to or even go toCraigslist to find this information on the description, price, and time of availability ofa posting. The information is freely available in the public domain and is afundamental component of the transparency of supply and demand and pricediscovery that are the foundation of free markets.Confession: the author’s prior life included time at the Board of Governors of theFederal Reserve – where the notion of preventing the free flow of informationpertaining to prices or offers of supply and demand in public markets is anathema –and certainly not something to be trumped by expansive notions of copyright formundane postings of goods and services through classified ads.It is the contention of 3taps that no party, Craigslist or any other, can use apredatory Terms of Use contract to have users ascribe and relay copyrightattributable qualities to simple exchange data that merely describes the fact of anitem or service being offered for sale. Even if one wants to accept a thin claim ofcopyright, notions of fair use and of implied license for reasonable rebroadcast ofthat information once posted in public are common sense expectations.Craigslist could set up a private members exchange (aka a walled garden) but itchooses not to do so and allows search engine to index all its postings because of thepublic benefit of having that information out there for others to discover. WhatCraigslist is upset about is that others (including perceived competitors) also findthat data in the public domain, and can create better search methods and userinterfaces to use that data and other sources to create a broader view of allexchange data (both Craigslist and non-Craigslist). PadMapper is just one suchinstance of an “exchange of exchanges” that trumps the narrowness of CL with datafrom other rental exchanges for its particular niche.The Craigslist lawsuit claims that the infringing parties are getting their data fromCraigslist itself – and this is false. 3taps finds the data by using the same publicsearch engines that everyone else has access too – albeit faster and with globalreach and the ability to avail this data to other innovative developers without themhaving to inefficiently repeat the effort. The 3taps utility fills the niche of creatingan API (the hard way because its done from search engines rather than originalCourt case establishing that information alone without a minimum of original creativity cannot beprotected by copyright.
  3. 3. sources) for data that, along with other lack of innovations by CL, Craigslist hasclearly failed to provide themselves.Hey, but it’s the ability to recreate data sets bottom-up and turn it into an after-the-fact API that is the 3taps secret sauce – and that’s what innovation is all about. Justlook at innovators in the air travel space that have had to do the same (albeit withbetter funding to standup to trolls). Southwest may not want to participate inOrbitz’s billing sites (and therefore aren’t shown in its search results) but thatdoesn’t mean it should or can stop Kayak from showing schedules including thetimes of its (publicly searchable/available) flight schedules.The point is that 3taps doesn’t have to even visit Craigslist servers to get this info asCraigslist has already allowed this data to be passed on to any of the major searchengines on the internet. Its already out there – duh! But of course general purposepage rank algorithms aren’t the best way to organize exchange data – which iswhere part two of the 3taps secret sauce comes in. But we are getting distracted byinnovation when what the real focus (sadly) here is litigation to make sure that wenever get distracted by the mechanics of actually try to build a better mouse trap.So just to be clear, lets say it again in unequivocal terms: No load is placed onCraigslist servers to achieve these ends as Craigslist has already availed the data tothird party search engines which serve all the volume of requests of the newgeneration of innovators. Craigslist can neither claim TOU control over access to itsservers (as they are not accessed) nor copyright like control over factual offers ofgoods and services in the public domain (for there is no copyright in facts orinformation of with a de minimis creativity).Exchange postings in the public domain are not and should not ever be thought of ascopyrightable nuggets to be squirreled away into dark pools for the eyes of somebut not all. If they are, then the whole notion of best execution achieved throughopen and equal access to public market exchange data is held hostage to theoverreach of copyright. We aren’t talking about private markets here (which havetheir own commercial protections). We are talking about public markets, publicfacts, public domain – and the public good.We are talking about allowing me to find the car I am looking for in any market –rather than just one local market at a time. I mean really, isn’t that what the internetis all about. Yes Craig, I really did want to find that Volvo v70R with booster seats,and a third row seat for kids, and a six-speed manual gear box coupled to AWD. Thesafest, fastest, best mileage, 7 person vehicle I can imagine (with no need to muckaround with kids car seats). How hard or long would it take for me to find that withlegacy Craigslist. F-o-r E-v-e-r. But with access to search tools that put the humptydumpty of diverse data together in ways that Craigslist absolutely thwarts, I wasable to score the exact match in the distant city of Salt Lake City – to which I waswilling to fly and make my local purchase and drive back to SF on the wide openroute 50 (gosh if only I could have paid with Square!).
  4. 4. OK, I realize that someone in Craigslist thinks I’ve done evil by searching globallyrather than locally (even though I made the purchase locally once I found my heartsdesire). But really, why should I be stopped from doing this search – by technicalblocking or legal harassment. So I scratched my itch and figured that others don’twant to be similarly blocked … and realized that the luck of fate gives me access tothe resources to make ones imagination of a better world into something thatactually kindof works. So its not just about getting my dream car…. I also learnedhow to cache all CL postings with the word “stolen” in it so that I could mechanicalturk new postings of bikes by folks fenced stolen goods – and yes with that datamining we (and the other legal resources called the “police” not tied up in suing me)did manage to catch and arrest the culprit. And then there’s the more systematicrecovery of lost pets…..all this and all these other innovations currently thwarted byone firm’s presumptive use of what their users want. Why not let the users actuallyshow what they want by letting them use a multitude of innovative sites that allhave access to the same best data? After all, when it comes to exchange spaces,having access to only a subset of the facts is like buying a partial set of theEncyclopedia Britannica. What’s the sense of that? Or more generally, what’s thesense of simply accepting a single OZ that knows all about what answers can beprovided – or even what questions can be asked. OK, personal rant completed andthe “why” behind the creation of a utility to put humpty dumpty back together,despite all efforts to the contrary to keep local exchange data fragmented and hardto efficiently search as a means of control.There was time that Craiglist would be giving rather that getting this rant. Thereceiver would have been the disrupted legacy newspapers who use to rely onpaper postings of classified exchanges to largely pay for investments in newsroomsto create their own content. Well that’s long gone now (even before the advent ofTwitter), but now the roles have returned and its Craigslist trying to hold ontokeeping the lid on local exchange listings – initially through technology, but nowthrough resorting to copyright trolling.Craiglist has great data and an interface that many people like and prefer – there’snothing wrong and everything right in that. But its another matter if they think thatwhile making their data available to be found in publicly accessible search engines(to drive users to their site); that they can also thwart any and all other playersbuilding search and display innovations from touching that very same data that issitting in Bing and Google. Remember, we aren’t talking LexusNexis anymore whereusers are subscribing to a private, close loop search network. We are talking openloop searching – which Craigslist has allowed and embraced from its inception, butnow with a penchant for reaching beyond it own site access to control access bythird parties to fourth parties for the benefit of fifth parties. Thank goodnessCraigslist hasn’t yet reached to control six degrees of separation.Litigating rather than innovating works for CL regardless of the merits of the casewhen there is a gross imbalance of power between the parties to a dispute.
  5. 5. Craigslist has prevailed on that basis again and again by scores of C&Ds againstsmall fry without the resources to stand up for themselves let alone bump thedebate up to the underlying principles CL progressively encroaches upon. The onlypushback to CL extension of control has been some noise on message boards bythose developers and users that recognize that something heavy handed is going on.There are additional peripheral issues in the legal case presented that play fast andloose with some facts and/or upon collateral issues which rational people can agreeor disagree. These can and will be addressed by 3taps and PadMapper in replies tothe complaint as framed. But what needs to be transformed is the discourse aboutwhether Craigslist – or any other established web property – can enforce copyrighttroll like Terms of Use on any and all that don’t have the means to stand up forthemselves on a one-off basis.PadMapper has really brought the litigate versus innovate conundrum to the top ofthe stack in the copyright wars. ABetaBeat report caught the spirit of the dispute inthe title “Craigslist Goes Full on Troll” rather than face the music of the observationby Digital Trends that their existing CL interface is an “exercise in torture.” Granted,those are the opinions of some and there are tens of millions of others that feelhappy enough with CL UI/UX to keep coming back to the original. But that’s amarket decision by some against others – and its not the market that Craigslist isappealing to by trying to conflate access to public domain data with a demand thataccess to such facts be done only through its UI and no other. Hey, by this time, thereader has probably forgotten that the Craigslist founder pledged just the oppositepoint of view to the legal aggression currently being pursued by their legalsurrogates.The turn of the screw is that Craigslist has implied that it operates almost like a(mostly) free social utility warding off profit seeking innovators. The reality is thatCraigslist charges (and prices) in segments where it has enough monopoly power toextract rents that generate $300M a year in revenue with little offsetting cost.2 Inother potentially competitive segments, the price is zero – a practice economistsunderstand as dumping or cross subsidization and that Microsoft paid a fine forgetting caught doing with Internet Explorer bundling in the past decade. I believethe quote was “We’re going to cut off their [Netscape’s] air supply. Everythingthey’re selling, we’re giving away free.”3 Whereas Bill Gates used the expression“cut of the oxygen supply,” for dealing with pesky and disruptivestartups,Craigslist’s euphemism is de-monetization to describe their tacticalstrategy of not charging for broad swaths of the exchange space while raking in2 Download “Craigslist By the Numbers” for more info on Craigslist volumes – paidand unpaid. From the Advocacy section of the website3quote attributed to Microsoft VP Paul Maritz in the US DOJs evidence at the anti-trust trial
  6. 6. posting fees for other select segments.4 The results for the competition however,are the same. At least both original founders moved on to saving the worldendeavors, while leaving the crunching to Ballamers and Buckmasters.Despite the CL “.org” designation, this is not a charity ball anymore even if it mighthave started out that way. BTW, we have no problem with the money that Craigslistmakes – and wish them every financial success going forward – because yes wewant, need, and believe Craiglist should succeed. We are midgets on the shouldersof giants, even though CL may attempt to disabuse us of the strength of their ownhand. We respect and applaud lots of what they have done on the whole – and evencan understand (and almost sympathize) with their sandbagging here. But ok,somewhere you’ve got to draw the line about just how far you can go with the anti-innovation premise. Look Craig – its not a competition between you, Righthavenand the Motion Picture Association for most troll filings of the year. You guys aretoo good for that.As for the disgorgement of ill-gotten profits that Craigslist seeks in its lawsuit fromthe free-riding defendant 3taps – the author fears that CL’s legal team may be a bitlet down when the bloom is off the rose about the recapture of thosealledgedillicit3taps spoils. 3taps has never charged for any of the data it hasprovided via its API – nor has it ever served an ad to garner click through revenue.It has not, nor ever has had any revenue and isn’t yet on track to change thatsituation any time soon. No VC has expressed interest in such a venture thatmanages to overlay huge technical risk, non-existent cash flow, with a healthy doseof legal and reputational risk. Wow, now here’s a seriously bad idea that only amother could love.But when it comes to cause of the public domain, such mothers do exist. The hope isthat something (we don’t know what) might come out of enabling best execution inthe exchange space through creating “exchanges of exchanges.” Why would anyone(i.e. this author) take the pains to do that? The answer is simple – to see what newinnovation occurs when public facts are indeed public property with free and equalaccess to all. I/we are curious. Just as I was when that first opportunity camethrough the door to drop some coin on funding Twitter or advising on Square. Andfurther full disclosure – the original idea and name for 3taps wasn’t mine either. I’mjust the guy who put the milk in the fridge for the folks that really do the work tounlock these possibilities. But it’s the best job I know.3taps has a front row seat on that innovation train. One just has to survive being inthe back row of the litigation bus in the meantime. Rosa Parks might have somegood advice for the hapless innovatorco-named in this legal action – the founder ofPadMapper. He’s who’s fired up more than a few users who believe there might wellbe a better way to look at the same old data. 3taps extolls his efforts and is4The Craigslist Credo: Unbrand, Demonetize, and Uncompete from “Why isCraigslist Such a Mess” Wired Magazine 17.09
  7. 7. concerned merely with the mundane business of picks and shovels for liberating thefactual data that never should have been shanghaied in the first place.