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Craigslist wins first step against screenscapers – lesson for drafting TOUs

By Nigel Howard on May 6, 2013
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On April 29, Craigslist was successful in fighting off a motion to dismiss filed by three screenscraping sites (3Taps, Padmapper and Lovely) in its pending litigation in the Northern District of California.   In Craigslist Inc. v. 3Taps Inc., No. CV 12-03816 (N.D. Cal.), Craigslist sued these sites, alleging that their scraping of Craigslist content violated the federal Computer Fraud and Abuse Act (and the Act’s California analogue); the Copyright Act, and the Lanham Act, and constituted a trespass to chattels.  Although not all of Craigslist’s claims survived the defendant’s motion to dismiss, its claims under the Computer Fraud and Abuse Act, some copyright claims, the reverse passing off claim, and the trespass claim did satisfy the required facial plausibility standard.  

The decision adds to the growing case law around screenscraping, and serves as a timely reminder of the fact that the language of a Web site’s terms of use (TOU) is an important factor in such cases.  In this case, Craigslist faces questions over whether it has standing to sue for copyright infringement because of the drafting of the content license in the Craigslist TOU.  The license grant provision in the Craigslist TOU is arguably ambiguous as to whether it provides for an “exclusive” license from users to Craigslist.  Citing Ninth Circuit case law, the order noted, “[O]nly the owner of an exclusive right under the copyright is entitled to sue for infringement.”  TOUs are often drafted with a non-exclusive license to user created content or with ambiguity as to exclusivity, and thus some Web site owners  may lack sufficient standing to bring copyright infringement claims in relation to some of the content on their sites.  Of course, it may not always be appropriate to request an exclusive license from users, but it is a question that all Web site owners should consider when preparing or maintaining their TOU.

Photo of Nigel Howard Nigel Howard

For over 30 years Nigel Howard has specialized in technology transactions such as M&A, strategic alliances, licensing, distribution agreements and outsourcing. Clients range from start-ups and emerging companies to international corporations. He has led negotiations of billion dollar service agreements that were critical…

For over 30 years Nigel Howard has specialized in technology transactions such as M&A, strategic alliances, licensing, distribution agreements and outsourcing. Clients range from start-ups and emerging companies to international corporations. He has led negotiations of billion dollar service agreements that were critical to his client, and successfully handled the intellectual property and data issues on over 250 venture capital and M&A transactions.

Nigel advises clients on their proprietary rights to data and global strategies for protecting these assets. He has represented companies in transactions covering the full spectrum of AI and data-related activities—including AI deployments, data capture and storage, business and operational intelligence, analytics and visualization, personalized merchandizing, and the related cloud computing services.

Nigel is a “tremendous attorney” singled out for his detail-oriented approach, according to clients interviewed by Chambers and Partners. Peer commentators note his admirable commercial awareness, which achieves business-focused results, often in the most challenging of circumstances. He uses his extensive experience with IP and technology to advise on the commercial imperatives underlying these agreements.

Nigel has been ranked by Chambers Global, Chambers USA, Legal 500, Best Lawyers in America, and Who’s Who in American Law. He is frequent speaker on AI, data, distribution, and technology legal issues. His past and current clients include American Airlines, the American Bankers Association, American Express, AstraZeneca, British Airways, Brown Brothers Harriman, Cathay Pacific, Cisco, CoBank, DoubleClick, Etihad, HPE, Farelogix, Iberia, Mars, Merck, Merrill Lynch, Microsoft, NCR, the NFL, Novartis, P&G, Philippine Airlines, Promontory Financial, Singapore Airlines, Teva, TouchTunes, UBS, and Wyeth.

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  • Posted in:
    Technology and AI
  • Blog:
    Inside Privacy
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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