Kurt Opsahl
May 1, 2013

Did you post an ad on craigslist between July 26, 2012 and August 8, 2012? If so, bad news for you. Turns out that craigslist, and not you, owns that ad. In other words, if you try to repost it to another site, you could actually be infringing craigslist’s copyright. Sound ridiculous? We think so, too.

Unfortunately, a federal court today upheld this oppressive term that craigslist included in its terms of service for that three-week period last summer. You might remember that we were encouraged when craigslist agreed to eliminate the provision, so we were left perplexed and disappointed that craigslist didn’t drop its ownership claim over user posts made during that time when the issue came before the court.

Here’s the thing: claiming an exclusive license to users’ posts to the exclusion of everyone—including the original poster—threatens both innovation and users’ rights, and, even worse, sets terrible precedent.

Take a look at the actual term in question:


So, if you posted a craigslist ad while this provision was live, you’re out of luck. craigslist’s ownership claims over user posts could potentially mean that the affected users can’t republish their ads on multiple services without risking a claim of infringement. And while not every craigslist post is going to go viral and have real value outside the original context (like the “Jesus Tap-Dancing Christ” car ad), users still need the right to post and repost their material in a variety of venues. Moreover, the exclusive license provision calls into question craigslist’s compatibility with common licensing schemes, like the Creative Commons ShareAlike license or the GNU Free Documentation License for the time that provision was valid. And, worse still: craigslist’s actions, and the court’s ruling, only increases the chance that other websites will start demanding ownership of the content you post there.

Fortunately, the court did reject craigslist’s more extreme argument, that all your posts are belong to them. The court noted that, outside the three-week time frame, only the regular terms of use applied, which did not grant complete—and exclusive—ownership to craigslist.

Computer Fraud and Abuse Act
In addition to craigslist’s overreaching copyright grab, the court also addressed craigslist’s Computer Fraud and Abuse Act computer hacking claim.

The court correctly held that craigslist did not have a CFAA claim for the defendants accessing the website in violation of the terms of use.  As the Ninth Circuit Court of Appeals recognized, violations of contractual restrictions like terms of use are not a crime.  As Judge Alex Kozinski so aptly wrote, under the government interpretation that the Court rejected, “describing yourself as ‘tall, dark and handsome,’ when you’re actually short and homely, will earn you a handsome orange jumpsuit.” EFF is working on CFAA reform to ensure that this is recognized nationwide.

However, the court refused to dismiss the CFAA claim entirely, reasoning that the defendants’ alleged circumvention of craigslist’s “IP blocking,” in combination with craigslist’s cease-and-desist letters to the defendants, could be enough to make accessing the publicly available website into illegal hacking.

Cease and Desist Letters Should Not Make Access to a Website Criminal
The CFAA is both a civil and a criminal statute.  This is a civil case, but has criminal ramifications. While the court looked at the earlier Facebook v. Power Ventures case, it misread a key holding.  There, the court recognized that imposing criminal liability based on the “receipt of a cease and desist letter would create a constitutionally untenable situation.”  This would put too much power in the hands of private parties to decide what a crime would be.

Changing IP Addresses Is Not Hacking
The court’s ruling on IP address blocking is dangerous because it could criminalize innocent behavior.

IP blocking is a common feature by which a computer or network can be configured to discard or ignore all communications from a particular IP address.  One can IP block a particular computer, a particular ISP, or an entire geographic area, such as a country.

Because it can be easy for a user to change her IP address, system administrators know that this kind of blocking is a rather rough and easily ignored tool for limiting Internet connections.  It is not a true security measure, and giving it the force of law only encourages a false sense of security.

Indeed, Internet users who find their computers blocked from accessing a particular service might have many reasons to try to circumvent the restriction. It could be that their favorite coffee shop is blocked because of someone else’s spam, and they have every right to access the information. The solution could often mean doing something as simple as trying again from the coffee shop down the street.

There is nothing inherently improper, never mind unlawful, about switching IP addresses and thereby avoiding IP address blocking.  Moreover, when a website is available without restriction to the public, a private party should not be able turn access into a crime to back up owner preferences or terms of service with the weight of criminal authority.

craigslist Should Help Create a Future We Would Want To Live In
craigslist has been a significant member of the online community, and has been helpful on key debates in the intersection of law and technology.  Its support of the SOPA blackout, for example, helped keep a terrible law off the books, and it has been a stalwart defender of Section 230, a critical law for free speech online.

Here, craigslist has veered from the path to a free and open Internet into a dark passage of walls, locks, and criminal prosecutions. We should not have a future in which terms of use can be used to put people in jail, nor a future in which websites own the content posted by the users. We don’t want a future where craigslist can sue you for distributing your own band flyer by hand, just because you posted it on craiglist.

craigslist may believe that the defendants are harming its users, and attempt to justify its actions in the name of the user. But its victory here against a few people it does not like comes at a tremendous price for all of us. It’s not too late. Craigslist should drop its claim to own user posts, even for that three week period and be clear that it does not want a world in which the measure of criminality is defined by a private cease and desist letter backed by a next to useless technical protection measure.


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