Craigslist Demands 'Exclusive License' On Your Posts
from the good-luck-with-that... dept
When Craigslist sued PadMapper and 3taps, we questioned the legal basis for much of the lawsuit, in particular the claim that Craigslist even could sue over copyright, when any copyrightable content is created by the end-users and not Craigslist itself. It appears that someone at Craigslist realized that it was somewhere very close to the Righthaven line in claiming a bare right to sue over someone else's work, and made a tweak, demanding "exclusive" rights.I first saw this via Slashdot on the Baligu blog, and was trying to go through the legal implications, but thankfully, Tim Lee over at Ars Technica did all the heavy lifting for us in speaking to IP lawyers James Grimmelmann and Mark Lyon who are quite skeptical of this move.
What's odd is that this "change" isn't even to its terms of use, which don't actually claim an exclusive license. Instead, the company has just added text to the posting page saying that you are granting the company such a right:
Clicking "Continue" confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.The theory, as Lee notes, is probably that by more forcefully claiming exclusive rights, perhaps it can get over the hump and have the right to actually enforce those copyrights -- but that legal theory is speculative at best.
It's kind of interesting, because someone could also potentially argue that this statement contradicts the company's own terms of use since they're different but perhaps more interesting are the wider legal questions raised by this -- including what happens if you, the user, post your classified ad to any other site. Craigslist seems to be claiming that it can go after those other sites (and, um, potentially you, I think...) for reposting "its" work. That's crazy and something that completely goes against Craigslist's standard "user-friendly" approach to everything.
Once again, this is showing how Craigslist's pursuit of these kinds of legal issues really seems to go against what made Craigslist so successful, turning the company into much more of a cranky legal bully. Lots of companies that start out innovative and open, do later change and flip sides on things like this, but Craigslist always seemed like the kind of company that would stay on the right side of the "evil line." It's too bad to see that it seems to be so aggressively diving over to the copyright bully side of the line.
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Filed Under: closed, copyright, exclusive rights, lawsuits, legal bullying
Companies: craigslist
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Any great legal minds here that could clarify?
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Craigslist is trying to figure out some way to have their cake (safe harbour) and eat it (sue for infringement). The judge is not going to buy it.
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If that is the case then by proxy they do have ownership to do what they will, and control what happens with said content. This is a double edged sword since they are then fully liable (and not vicariously) for any and all uses of that content which instantly makes moot any safe harbours under s230. Oh and they could probably be criminally liable too since their duty of care rises dramatically since anyone who has complete control of an item has a reasonable expectation of knowing what is within that content and how it could be interpreted
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mmm like Apple?
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It might be an interesting precedent and judging by Craigslist moves I'd say they might have a good chance of calling Craigslist bluff here, and Craigslist know it!
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Not a smart move in the web business, where empires rise and fall constantly and quickly.
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Good thing some real journalist did the hard work so you could just ride his coattails.
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Just Wondering
I’m not a lawyer but if you can click away a licence, cant they post themselves out of one?
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Re: Just Wondering
You can't just “click away” an exclusive copyright license.
17 USC § 101 - Definitions
(Emphasis added.)
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An exclusive licensee is an "owner" of a copyright
The majority view among the courts is that an exclusive licensee is an “owner” of a copyright. Ownership is a prerequisite to maintain an action for copyright infringment.
17 USC § 501 - Infringement of copyright
(Emphasis added.)
(*) (Fwiw, the 1909 Copyright Act treated copyright ownership very differently, and as a legacy of precedents established under that earlier act, a minority of courts today remain rather confused and think there's some difference between an exclusive licensee and a copyright owner.)
Copyright ownership is important in the context of Craigslist's recent act. For one thing, the copyright act has a statute of frauds:
17 USC § 204 - Execution of transfers of copyright ownership
See the part where a transfer of copyright ownership needs to be signed?
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Re: An exclusive licensee is an "owner" of a copyright
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Re: Re: An exclusive licensee is an "owner" of a copyright
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Re: An exclusive licensee is an "owner" of a copyright
What's your opinion on that?
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Re: Re: An exclusive licensee is an "owner" of a copyright
In comments here, it's courteous to provide a hypertext link to cases you cite.
Effects Associates v Cohen (9th Cir.1990)
<:a href="http://scholar.google.com/scholar_case?case=9695307318571874997">Effects Associates v Cohen (9th Cir.1990)
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[Citation required]
Sorry couldn't resist that ;)
And like wills, deeds of title, etc signed means physical signature (in most jurisdictions) or at the least a reliable, unique, authenticated, and most importantly, court approved electronic signature. Not a click through at all
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Re: Re: Re: Re: Re: An exclusive licensee is an "owner" of a copyright
Would it be possible to record a click-thru in the Copyright Office?
17 USC § 205 - Recordation of transfers and other documents
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This is why Signatures on deeds, letters of writ, land titles, wills etc all have to be witnessed (notarised) that they were the person signing. There are electronic equivalents (though not everywhere accepts them) but Craigslist are definitely not suing them. They just rely on "click this button and we mark a database that you - whoever the hell you are - agrees to whatever weird thing we want..
and before anyone sya it IP address's do not identifiers make.
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Re: Re: An exclusive licensee is an "owner" of a copyright
In comments here, it's courteous to provide a hypertext link to cases you cite.
Effects Associates v Cohen (9th Cir.1990)
<a href="http://scholar.google.com/scholar_case?case=9695307318571874997">Effects Associates v Cohen (9th Cir.1990)
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Re: Re: Re: An exclusive licensee is an "owner" of a copyright
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Re: Re: Re: Re: An exclusive licensee is an "owner" of a copyright
I have a preliminary question:
Is the “signed” part of the § 204(a) signed writing requirement governed by state law? Or do the federal policies underlying copyright necessarily mandate one uniform standard for electronic signatures?
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Re: Re: Re: Re: Re: An exclusive licensee is an "owner" of a copyright
Is the “signed” part of the § 204(a) signed writing requirement governed by state law? Or do the federal policies underlying copyright necessarily mandate one uniform standard for electronic signatures?
I was just about to ask you the same thing. :)
My opinion, without researching it (and there may be no answer in the case law anyway for this exact point), is that state contract law governs to the extent it's not preempted by federal common law. If there is a body of federal case law on point, that controls, and if not, then look to state contract law. My two cents.
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Re: Re: Re: Re: Re: Re: An exclusive licensee is an &quot;owner&quot; of a copyright
I haven't researched this point in half a decade. But, iirc, in some circuits, the sufficiency of a § 204(a) writing is exclusively subject to federal law.
In other circuits, the judges perhaps just assume that the formation of a contract is governed by state law.
The 11th circuit's recent, unpublished decision in Hermosilla v Coca-Cola has been criticized for not discussing the § 204(a) issue:
However, looking at the Florida District Court's decision in that case, we do find a nod to § 204(a). Unfortunately the district court cited a patent case:
(Not hyperlinking Lamle v. Mattel, 'cause if I stick too many links in one post then the comment gets held in the moderation queue.)
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So if there is a "transfer of copyright ownership," then it needs to be in writing.
Section 101 defines "transfer of copyright ownership" as: "A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license."
So an exclusive license, though not a nonexclusive license, needs to be in writing.
I agree that they aren't *really* transferring ownership of the underlying copyright (for the reasons I've stated elsewhere in these comments), but nonetheless it's clear that an exclusive license must be in writing.
Now whether that writing requirement can be fulfilled by a click-through license is the question. I'd need some more facts before I could make that call (like what exactly happens on CL's website when this alleged exclusive license is perfected).
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If I put up a help wanted I don't want to be limited to placing it on one site.
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Hand in hand
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17 USC § 101 - Definitions
(Emphasis added.)
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There is some unfortunate confusion built into the Copyright Act: Morris v. Bus. Concepts, Inc., 259 F.3d 65 (2d Cir. 2001) (emphasis added).
While an exclusive licensee is certainly a legal owner of the underlying copyright such that they are entitled to the protections and remedies of the Act, they are not in fact the true copyright owner. A licensor owns that which is licenses, even exclusively, to another.
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A new way to make money
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Chicken or egg?
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Re: Chicken or egg?
17 USC § 204 - Execution of transfers of copyright ownership
(Emphasis added.)
An exclusive license which is a 17 USC § 101 “transfer of copyright ownership” ... is not valid unless... signed.
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See 15 USC § 7001.
But compare the electronic signature cases involving a statute of frauds defense with Konigsberg v Rice (9th Cir. 1993):
(Pin cites omitted.)
The upshot of this being that one circuit's opinion (e.g. 10th) holding that the sender's name on an email satisfies a state (Colo.) statute of frauds may not be a § 204 signature in another circuit (e.g. 9th).
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I see that Section 7006(5) provides: 15 U.S.C.A. § 7006 (West).
I don't know how Craigslist presents the exclusive license language, but if a user merely agrees to it without "the intent to sign the record," then it would appear that it wouldn't be a signature and the writing requirement isn't fulfilled (since it must be signed).
Great stuff! I'd have to research it more to say anything intelligent about it, but it does appear that maybe there is no exclusive license here.
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There is a real lesson to be learned here that perhaps you have never had to deal with in your life:
What happens when a business becomes successful. They suddenly have something that is worth protecting, and they do so.
Don't call CL out for being successful, and having a product that other people want to rip off and make money from.
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Fuck you craigslist!
Fuck you whale!
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How hard is that to understand?
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Again, fuck you craigslist and whale!
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I expect that pretty near everyone here understands that, but that's just working around Cl's demands. It doesn't make CL's demands acceptable.
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Yes, there is a lesson here, but since you don't seem to understand what it is, it's likely you've never had to deal with it either.
The lesson is maintaining popularity requires not being a dick.
Yes, and that something is their user base. However they are not "protecting" it, they are actively engaging in conduct to destroy it.
That's what this is about.
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Since they aren't being dicks, it's not an issue. The guys being dicks are the ones trying to springboard a business OFF of CL by using their site, data, and information to leech. Nobody wants to post their ads on these leech sites, only to CL.
Why can't CL just say "it's our site, our content, and you cannot use it that way"? Remember, CL shuts down tomorrow, and all of those sites go broke and fold. They are entirely depending on the data that CL has on their site.
Their have a user base to protect, that is true. But just like Twitter, they face a simple challenge. If people are using off line CL ad writers and submitters, and then using third party websites to look at the ads, that moves CL from destination website to just a storage facility. That would seem to defeat their entire business model.
CL clearly has no interest in getting worked around, and they have no interest is having their user experience taken over by third parties.
That's what this is about, not your touchy feelie crap.
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Because it's not, in fact, their content, maybe?
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Psst. Craigslist has existed (and grown) for over a decade without this kind of protection.
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Wait, I never have anyway. :^/
But at least they have now assured that I never will. :^)
Mission Accomplished!
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Personally, I don't care if CL does this or not -- but I do take contracts seriously, and I take exclusive licenses ten times as seriously. I'm not about to grant an exclusive license to anything I do to any entity at all unless they are paying me to produce something for them.
There's just too many ways this sort of thing can come back around years later and hurt me.
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What this does is make people look for other communities that aren't going to try to lock up the content.
That would be like Techdirt claiming exclusive license on the comments.
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Crags list copyright
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