Craigslist Trying To Destroy The Life Of Someone Who Made Posting To Craigslist Easier
from the and-harming-their-own-defense-at-the-same-time dept
Two years ago, we wrote about a lawsuit by Craigslist that we classified as dumb. It was against a company called Red Trumpet who provided a service to make posting to Craigslist a bit easier. Craigslist's obvious reason for filing the lawsuit was that it was upset about the increasing amount of spam on the site, some of which uses such tools. We understand and appreciate Craigslists' efforts to keep spam off the site, but attacking third party software and service providers on questionable theories is fraught with dangers... especially for Craigslist.After all, this is the exact same Craigslist who keeps getting accused of being liable for prostitution ads on its site. And for years, Craigslist has correctly responded that it is not legally responsible for the actions of their users -- a position we support and agree with. Thus, it seems strange and dangerous for Craigslist to then make the exact opposite argument back at other service providers. It's the kind of thing that's going to come up in a court case sooner or later.
That was the biggest problem with the lawsuit, but there were three other problems with it, including what seemed like extremely questionable uses of copyright law, trademark law and the ever-popular anti-hacking law, the Computer Fraud and Abuse Act. Here's what we wrote about all three at the time of the Red Trumpet lawsuit:
Craigslist is making a really weak DMCA claim here. It's claiming that its various anti-spam technologies (captchas, phone verification, etc.) act as "technological protection measures" that Red Trumpet is circumventing... and thus running afoul of the DMCA's anti-circumvention rules. But the circumvention has nothing to do with violating Craigslist's "copyright," though the lawsuit makes a half-hearted attempt to claim that it does.I hadn't followed the case very closely after that, but it looks like the company eventually settled with Craigslist.
Then, there's the trademark claims. There are a few different ones, but it argues that Red Trumpet is violating Craigslist's trademark by mentioning Craigslist on its website and in its ads. While again, you can see why this is annoying to Craigslist, if the company is accurately describing services it provides (the ability to post on Craigslist) it's difficult to see the "confusion" being caused. The ad in question doesn't appear to imply any endorsement at all by Craigslist. And, does Craigslist really want to open up a can of worms concerning trademarks being used in ads? After all, there must be a ton of posts on Craigslist that mention trademarks.
Finally, there's Craigslist claiming that Red Trumpet violates the Computer Fraud and Abuse Act by accessing its site despite violating its terms of use. Does this sound familiar? It's the same argument that was used to try to punish Lori Drew, and was recently tossed out by a judge. Basically, it's claiming that if you happen to violate the terms of use of a site, and then still access the site, you've effectively "hacked" into the site. This is a really bad reading of the law, which is why it was good that the Drew ruling got tossed out. So why is Craigslist trying to re-establish that as a rule?
What I hadn't realized was that Craigslist had actually filed a bunch of similar, equally questionable, lawsuits against others. One of those others is a guy named Paul Hubert, who wrote some software that made it easier to manage your Craigslist postings. We've been in touch with Mr. Hubert... who did not find out that he was being sued at all, until months after the court already ruled in a default judgment against him. Default judgments happen when someone doesn't respond, but if you're never informed of the lawsuit, it's pretty difficult to respond at all. Hubert insists that he was never served, and the first he heard of the lawsuit was a couple months after the default judgment (for over $1.2 million) when someone tried to collect it from him.
Hubert makes it clear that his software was designed for legitimate uses of Craigslist, for those who needed better management tools. In fact, he makes it clear that he left out and/or disabled certain features if he realized they might be attractive to spammers. For example, after noticing that the Craigslist Personals section was hit with a lot of spam, and realizing that such a category probably wouldn't need such a management system, he blocked the software from posting to that category. Hubert claims that in 2007 Craig Newmark himself reached out to Hubert to ask for some details about the software. Hubert says that the emails were "encouraging" and never once did Newmark suggest any concerns or problems with the software, let alone ask Hubert to stop offering it. Hubert also notes that after running into more issues with spammers trying to use his software, he shut down the whole thing at the end of 2008.
Hubert, who is unemployed, is reasonably perplexed and upset about the whole thing. He never knew about the lawsuit, was never asked to stop offering his software (which he did anyway), and is now being told he has to pay $1.2 million which he doesn't have. He claims that the lawyer trying to collect the money has told him that Craigslist wants to "make an example" of him.
I'm greatly troubled by Craigslist's actions here. Having dealt with Craig and Jim Buckmaster a few times in the past, I reached out to them about this, and asked for any comment. It's been a couple days and no response has been forthcoming from either. From the profile page of lawyer Brian Hennessy, who appears to have represented Craigslist in both of the cases discussed here, it appears that Craigslist actually has filed a lot of other, similar cases.
I have to say that I'm pretty disappointed that Craigslist would do this. The company has usually represented a lot of the good of Silicon Valley, and to use questionable legal theories to attack various companies -- especially theories that are likely to come back to haunt Craigslist itself -- is just a bad idea. To then take it further and go after this guy who was never served and never even asked to stop -- and then pressing him for $1.2 million he doesn't have -- just feels downright shameful.
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Filed Under: cfaa, copyright, default judgment, paul hubert, secondary liability, trademark
Companies: craigslist
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Seen it
An alternate theory: It's not the well-intentioned creators of Craigslist but instead some jack-hole rogue lawyer who has a tenuous claim of being connected to Craigslist and is extorting money from anybody he can before leaving the country.
Wait, that's just silly: he wouldn't leave the country, extorting people via 'The Courts' isn't illegal.
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You gotta love the court system these days
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Legal entities feels no emotion, but it certainly has some kind of basic instinct to go for power/money.
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Re:
If you can't provide your own laws and your own politicians to put in place what you want you will never be heard.
Fortunately for you, you have the tools to do it, you got the internet, you got databases and you got the whole of society to draft, debate and vote for anything you decide as a group should be done and that is the one thing no company will be ever be able to change, is just people today don't care the much about politics, but YOU got the power if you care.
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Statement of fact?
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Re: Statement of fact?
How do we know anything as a fact, other than cogito ergo sum?
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Re: Re: Statement of fact?
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Re: Re: Statement of fact?
Other than only a statement by Hubert that it was so, I wondered if Mike had further corroboration, i.e. the court not having record of a valid service of summons, other factors that cause him to give credence to Hubert's statement. Anything at all beyond "Hubert said so".
I tend to believe Hubert, but wondered if there was anything other than gut instinct to do so.
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Re: Re: Re: Statement of fact?
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There are very few attorneys that I've ever come across that I'd actually trust, and the apparent actions of their corporate counsel is a prime example of why that is the case. If I had to guess, they knowing used a "sub-servant" process knowing very well that the odds of you actually getting the papers were low and their baseless claim would be won by default. I'm hoping that you've found someone to defend you who is willing to countersue for pain and suffering for a baseless suit as well as apparent ... questionable ... activities on the part of the company through their attorneys.
If anyone from Craigslist is reading this, do what's right and drop this baseless suit. You have already proven that there are no monies available from Mr. Hubert, and if you continue to push you'll find many stepping up to defend him or at a minimum discontinue the use of your services. Or better yet, a team of developers willing to build a competing product which with over 18 years of enterprise level development experience including architecting those systems I'd be more then open to having that conversation with someone provided if it happened some of the revenue from the product ended up in the hands of a trust for Mr. Hubert's family in a way that any judgement that stood would not be able to touch.
Paul, take care of those children and your family. Obviously fight this until your vindicated and then turn around and go after them for the pain and suffering. But first and foremost, take care of you and your family.
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Re: Re: Re: Re: Re: Statement of fact?
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That's certainly a violation of their terms of use, their trademark, and the DMCA.
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Actively working to get around those blockages is a form of hacking, that is for sure.
I think CL has all the right here, and the other party is pretty much in the wrong without much way around around.
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Things like Captcha and such are set up to make sure that actual humans use the service, and that it isn't abused by bots and other automated tools.
Anyone who still thinks that captchas serve this purpose is utterly clueless and may safely be dismissed from any further participation in conversations regarding security. Everyone who has been paying ANY attention to the contemporary security/abuse environment knows that the only reason any particular captcha hasn't yet been successfully attacked is that no attacker has yet found it worth their time to bother. The rest are as irrelevant as a sheet of tissue paper in front of a tank.
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Captcha is the perfect example of a fine tool that is abused by "attackers" (we call them hackers). Used as intended, it is functional and correct.
The only person who needs to be disqualified is someone who thinks that hacking, at any level, is acceptable.
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Sony really proved that with their lawsuit against Geohot.
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Note carefully -- if you're capable of such nuance -- this wasn't always true. There was a time at which they had some marginal security value against some kinds of attacks. But that time has come and gone.
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It's for local, face to face transactions
Local, face to face buyers and sellers don't need automation. Spammers and opportunists do.
There are some companies who do make posting to craigslist easier/partially automated for individuals and the don't get sued. One example is forsalebyowner. They make it easy for folks to post on craigslist - one ad in one location.
That makes sense, an individual (not a business), selling by owner (face to face), posting one ad in the city nearest them. That's what cl is about.
An individual does not need a bot to post for them. If one person has so many ads they need a bot to manage them then they're a business, they can go to a commercial site or start a classified ads site of their own.
There are only 36 for sale categories and 9 real estate categories. Post one ad in each category and there is still less than one page on your craigslist account page. Every post on that page has links for 'edit', 'delete' and 'renew'. Cut, paste, and post, then click on the 'renew' link every couple of days. It doesn't take software to make that "easier".
Businesses, spammers and scammers on the other hand, they're the ones who want/need automated posting.
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Re: It's for local, face to face transactions
If you call breaking the ToS hacking under the CFAA, then let's just call walking into McDonalds without a shirt or shoes felonious breaking and entering.
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Re: Re: It's for local, face to face transactions
I think it would be completely different if the guy wrote a generic bit of software that could be used on multiple sites. In this case the software apparently targeted only one site. It isn't that he was carrying generic lock picking tools and they nailed him for burglary, he made a key specifically to fit one lock.
It's the same as someone designing a piece of software with the sole purpose of automatically posting here in the discussions. How many days of crap bot postings would it take before someone started to lawyer up?
Like it or not, you have to admit that craigslist chose the cheapest/most efficient strategy. Rather than go after the dozens/hundreds of spammers who would use his software to post automatically they went after the source of the problem.
BTW I don't like what craigslist did but I also understand that if they don't defend their site from bots, it would turn into a spammer's paradise within a week. Twisting the DMCA sucks, and yeah it was stretched beyond any reasonable bounds but that still doesn't qualify as "trying to destroy his life".
It sounds like the guy took the "easier to ask forgiveness than it is to get permission" route. Sometimes that backfires.
I'm also a bit suspicious of the images of an "absolutely innocent" programmer and a "bent on destroying" empire. I think the truth lies somewhere in between there.
The specific bits of the TOU that I'm babbling about:
y) use any form of automated device or computer program that enables the submission of postings on craigslist without each posting being manually entered by the author thereof (an "automated posting device"), including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals.
...
8. POSTING AGENTS
A "Posting Agent" is a third-party agent, service, or intermediary that offers to post Content to the Service on behalf of others. To moderate demands on craigslist's resources, you may not use a Posting Agent to post Content to the Service without express permission or license from craigslist. Correspondingly, Posting Agents are not permitted to post Content on behalf of others, to cause Content to be so posted, or otherwise access the Service to facilitate posting Content on behalf of others, except with express permission or license from craigslist.
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Re: Re: Re: It's for local, face to face transactions
Craigslist absolutely did the worst thing here. Not only is it more expensive to lawyer up, it's also only stopping one instance. They could have come up with technical measures to stop it, and doing so would have caught a lot more software and people using his software. They went after this guy, but his software is still out there, as is a plethora of other programs that do the same thing. Not only did they not stop the spamming, they also twisted laws, and are ruining the guy's life because he may have caused a minor inconvenience to them (though he tried to stop that as well). In addition they've tarnished their own image. This was absolutely not the cheapest nor the most effective strategy.
Also, twisting the DMCA isn't what is destroying this guy's life. Giving him a criminal record and fining him $1.2 million is destroying his life. Frankly I'm appalled that they did this.
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Re: It's for local, face to face transactions
That's for users. This is a service provider. A service provider should not be responsible if others use its product to violate someone else's TOS.
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Re: Re: It's for local, face to face transactions
If the postings were going through his servers then yeah, he's a provider but the article says he "wrote some software".
I agree that craigslist is guilty of twisting the law into knots in order to apply it, and it sucks because it sets a standard that big corporations and big government will take advantage of. I don't agree that he was a service provider (unless he did handle the web traffic)
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Re: Re: Re: It's for local, face to face transactions
Someone else used it to spam craigslist.
And you thnk the maker of the product should be liable?
Thats like charging the maker of a knife when someone gets stabbed with it.
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Re: Re: Re: Re: It's for local, face to face transactions
If he had created a general purpose product that worked on any website and cl sued him because someone pointed it at their service that would be a different story.
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Re: Re: Re: Re: Re: It's for local, face to face transactions
Lets say I make a knife specifically designed to kill person MrX.
I put it on a table on a street corner.
MrY (not me) takes it and walks up to MrX.
MrX says "I propose an agreement where you agree not to stab me."
MrY says "Sure" and signs the agreement. He then stabs MrX anyway.
How can you get that to be my fault?
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Re: Re: It's for local, face to face transactions
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Huh?
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Re: Huh?
It's certainly not just a US thing. It's usually pretty easy to get them vacated and have a real trial. Without them, it'd be easy to never lose in court (just don't show up). So you have defaults that are fairly easily vacated if you decide you actually want a trial.
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They used to be small. That's when they cared. They are larger and can afford lawyers easily now. Why the surprise? More money (power)= more corruption.
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Trying to force a website to change to accommodate whatever a handful of people think it "should be" is a pretty twisted idea to begin with. I think the pope's website is all f'd up. If I wrote software to post porn to it because I think *that* is "more useful" than the way they want it to be, I'd be an idiot if I didn't expect them to come after me with both barrels loaded.
It is sleazy on cl's part to twist the law but I'm okay with the concept of going after the guy for enabling the spammers.
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Get over it and move on because the wealthy are elite and you are all peons with questionable typing skills hoping for your ascension into wealth that will never come.
Besides there is nothing more scary than a hippie with money and thin skin.
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Bye Craigslist
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CL's responsibility for its users' actions is completely different from CL defending its rights. . .
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Where's the POS?
BTW, when you do get your day in court, don't forget to have them show you how they spent 40K preparing a case against you. At 40K per case, Perkins Coie only has to worry about the bad press they will get from these cases.
Such a high publicity case with such little merit should make it easy to get a lawyer on contingent. Start here: http://www.probono.net/sf/
Anyway, even if you get the case vacated, they can just refile it again. You need to take a position
1. Do you want to pay a lawyer and make it go away?
2. Do you want to fight back and pay lawyer with settlement?
Good luck with it all. I hope in the long run this can work to your advantage.
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This post should be taken down, Techdirt is being manipulated.
Copyright is very complex. Unfortunately, copyright has been used to deal with injustice in software situations that seem to have nothing to do with copyright. but this was a violation of the law. The defendant created a device based on Craigslist and sold it for money, money he would not have made if it hadn't been for the work of the Craigslist programmers. The spammers are simply the reason why Craigslist didn't turn a blind eye, the spam is why Craigslist bothered to enforce their rights here. The defendant has no defense and I hope that Craigslist gets him. I really believe in free tools on the internet and preventing spam is a vital part of that. The defendant is clearly a fairly sophisticated programmer and knows exactly what he was doing. He will have to defend himself against this lawsuit the second time, and he will lose. It's just that simple.
Techdirt and Reddit are being used to scare Craigslist away from the person who is being sued for legitimate reasons. I know Craigslist can be shitty but Techdirt shouldn't allow their site to be used to drum up negative publicity to fight a lawsuit.
I just feel as though Techdirt is being manipulated here. The AMA will be taken down soon, it's not a legitimate AMA. But if it's still up, see it here: http://www.reddit.com/r/IAmA/comments/ku5ss/i_was_sued_for_over_12_million_unknowingly_and/
I think this article was planted by the defendant of this lawsuit, just like the LJ AMA.
Basically they have a chance at preventing Craigslist from filing a second lawsuit, because they can use this improper service argument to vacate the original judgment, and in the mean time drum up lots of bad publicity for Craigslist.
The person who is selling the application that is posting all of this stuff actually committed a fairly serious violation of copyright law.
I have to say i even feel like it's weird that copyright applies here, but copyright is used to protect code. This is a derivative use of the Craigslist website's code. The person sold their program which was designed only for craigslist, a free site. Therefore making money off the existence of Craigslist through the derivative use of their code. I have to admit, in fairness, that the use of copyright law for programmers is a stretch but it is the law, they chose copyright over patent or any of the other options for some good reasons. The code is protected.
I am not sure how the program works but it sends posts directly to the Craigslist submission system in some automated way. Everyone who has ever written a bot or some firefox plugin, they're in violation. That's unfortunately a problem inherent in copyright. Everyone is constantly violating copyright but it's also the only way we have to prosecute people who make bots for posting spam.
You might say this is a perfect topic for Techdirt, but not the way they are framing it! They are ranting about improper service, not the expansive protections of copyright
And code is more legitimate to be protected than some song written 50 years ago, at the very least. How else do you prosecute people who create and sell spam bots? I mean, if this guy isn't liable, is anyone? Are spam bots just a free for all?
This is what the article should be about, not about whether this guy has a hard life.
"Are spam bots illegal" is a legitimate topic, not a manipulative article that's trying to bully Craigslist into backing off of some guy who did something pretty malicious.
Craigslist is trying to stop spam bots - it's the same reasoning as suing Limewire, but that suit was still highly successful.
This guy knew exactly what he was doing. Who would take a site like Craigslist, designed for private individuals to deal with their personal stuff, and think "people need to have an easier time posting here!" and make money doing it without intending to aid spammers.
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Re: This post should be taken down, Techdirt is being manipulated.
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Re: This post should be taken down, Techdirt is being manipulated.
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Re: This post should be taken down, Techdirt is being manipulated.
I'm not sure I understand how that point is relevant. If I sell software designed for use on a specific phone, is that then a copyright violation? After all, my software for that phone wouldn't exist without the efforts of the engineers who created the phone. Does this mean that hardware or provider specific applications are illegal?
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Re: Re: Re: Re: This post should be taken down, Techdirt is being manipulated.
Regardless, asking this guy to give up the profits he made selling a tool to businesses for them to abuse a site that was supposed to replace classifieds (ie, generally one post per user and each gets equal visibility) is hardly "destroying his life."
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Re: This post should be taken down, Techdirt is being manipulated.
That has absolutely nothing to do with this case. Lots of people make money by building on the work of others, and it can and often is perfectly legal. Do you use an RSS reader? Same thing. According to you RSS should be illegal.
Do you use Google? Google has software that is built off of works of other websites. Based on your incorrect analysis, that would be illegal.
That's not how the law works.
And it's also not what Craigslist is alleging.
The spammers are simply the reason why Craigslist didn't turn a blind eye, the spam is why Craigslist bothered to enforce their rights here.
Did you even read the post? Craigslist has every right to try to block spam through technical means or to go after spammers legally. But I do not believe they have a legitimate software providers. They *can* go after SPAMMERS directly, but claiming third party liability of the service providers -- while making the exact same argument for why they're NOT liable for prostitution ads is both disingenuous and dangerous.
You act as if the only option is to go after the service provider. As Craigslist itself has noted in its defense of the prostitution charges, that is false.
The defendant has no defense and I hope that Craigslist gets him.
Actually, he has a large number of defenses.
He will have to defend himself against this lawsuit the second time, and he will lose. It's just that simple.
I love it when people who get the law wrong then assume the outcome of cases.
I just feel as though Techdirt is being manipulated here.
That's your opinion. I disagree. I spent a fair amount of time researching this and I stand by the post 100%. You have presented no facts to change that, but a bunch of baseless and ill-informed assertions.
The person who is selling the application that is posting all of this stuff actually committed a fairly serious violation of copyright law.
You keep claiming that, but I don't see it at all.
I have to say i even feel like it's weird that copyright applies here, but copyright is used to protect code. This is a derivative use of the Craigslist website's code. The person sold their program which was designed only for craigslist, a free site. Therefore making money off the existence of Craigslist through the derivative use of their code.
I do not believe anything you write above is accurate. My understanding of the lawsuit is not that they're charging him with making a derivative work at all, but rather with violating the anti-circumvention provisions of the DMCA. This is an abuse of the DMCA. It's designed to block the breaking of DRM. But this isn't DRM.
As for making use of Craigslist's code, where did you get that from? I have seen no evidence of that.
I am not sure how the program works but it sends posts directly to the Craigslist submission system in some automated way. Everyone who has ever written a bot or some firefox plugin, they're in violation. That's unfortunately a problem inherent in copyright.
You don't understand copyright law.
And code is more legitimate to be protected than some song written 50 years ago, at the very least. How else do you prosecute people who create and sell spam bots?
You seem to be assuming a conclusion, that it's proper to blame the tool for the actions. I find that shameful. Do you blame Ford when someone drives recklessly too?
This guy knew exactly what he was doing.
Yes, building a tool to make it easier to post to Craigslist, because CL's interface sucks. In the history of software and the web, this kind of thing is quite common. Think of all those twitter tools out there, that built on Twitter. According to you, they're all illegal. You're wrong.
Who would take a site like Craigslist, designed for private individuals to deal with their personal stuff, and think "people need to have an easier time posting here!" and make money doing it without intending to aid spammers.
You're making a lot of assumptions about CL that are simply not true. It's a big business for lots of people. Companies use it for job listings, real estate listings and many other things. A tool to manage those is quite helpful.
Honestly, you seem to have directed your anger at the wrong person, and in the process accused me of being manipulated. That's a strong charge. I suggest you take some time and actually read the details before commenting again.
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Someone should ask the GOP about this
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They play dirty and pay $500 an hour lawyers tons of money and rarely recoup anything. To the guy this is happening to if you are reading this you should talk to www.twitter.com/kmesiab he also had a huge ridiculous judgment that was taken down to nothing.
Most of the cases have ended in either a default judgment or a settlment. Which means they have never once had to answer for these bogus lawsuits in a court of law. I think if they did it would be a bad day for them. Unfortanetly most people who are served with suits are in no position to fight a lawsuit to the tune of hundreds of thousands of dollars.
Perkins Coie is to Craiglist what all those scum bully lawyer houses are to the RIAA. They do nothing for CL except try to beat people over the head for ridiculous amounts of money, meanwhile their claimed damages are ads posted on their site which means more page views which last time I check actually added value to a website instead of harmed it.
The really sad part is these henchmen that Craigslist uses for lawyers are also lawyers for the White House. No normal person can afford to defend themselves even if they are right against this law firm.
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Re:
Either way, I can only hope that Craigslist realizes that they are not accomplishing anything by going after us little guys, especially myself, being defenseless (poor) and vulnerable with twin infants. It is not easy to deal with Craigslist bullying and my babies at the same time. Anything Craigslist manages to take from me would only be taking away from my children.
I struggle to make ends meet and if you've ever had even one infant I am sure you understand how hard it can be at times. I will never stop sharing my story until Craigslist either drops the judgment or contacts me to settle this for a reasonable amount. I will even go as far as doing interviews for any news station. I feel that Craigslist is absolutely going about this the wrong way.
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They should go after the spammers.
http://scam.com/showthread.php?t=57186
Go after those individuals instead of the software programmer. They are the ones causing a majority of the problems.
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I had a default judgement so i got the lawyer back good
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