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1. 3taps Defense Against Copyright Trolls
On July 5, legal counsel representing Craigslist sought to block the popular
apartment mapping site Padmapper and data provider 3taps from use of Craigslist
data. Craigslist makes numerous claims regarding copyright and trademark
violations right through to federal cyberpiracy along the way to protesting that they
have suffered “irreparable and incalculable harm and injury.”
3taps views the overblown claims as reflective of a copyright troll mentality and
tactics. Furthermore, the Craigslist recent revamp to its Terms of Use represents a
massive overreach of the application of copyright law. The choice by CL to litigate
rather than innovate to respond to completion in search and display methods for big
data is a chilling hairball laid at the foot of the open internet.
Most sadly of all, the litigation directly contradicts the assurance made by
Craigslist’s own founder Craig Newmark on Quora in response to the question “Why
hasn’t anyone built any products on top of the Craigslist data?”
Craig’s Answer: “Actually, we take issue only with services which consume a
lot of bandwidth.” Craig Newmark on Quora July 14, 2010
Given that 3taps sourcing of Craigslist data and API provisioning to PadMapper
takes 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 the
expression of information must meet a minimum of original creativity to be protected
by copyright.1
1International News Service v. Associated Press, 248 U.S. 215 (1918), is a United States Supreme
Court decision that upheld the common lawrule that there is no copyright developed the common law
doctrine of misappropriation through the tort of unfair competition. In the case, the court struggled to
distinguish between interference with business practices versus interference in facts and
with 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. Classified exchange postings are merely factual statements of limited creativity
produced by users to promote exchanges of goods and services between seekers
and providers. The CL data in question is indexed by public search engines and is
made available in the public domain. One does not have to belong to or even go to
Craigslist to find this information on the description, price, and time of availability of
a posting. The information is freely available in the public domain and is a
fundamental component of the transparency of supply and demand and price
discovery that are the foundation of free markets.
Confession: the author’s prior life included time at the Board of Governors of the
Federal Reserve – where the notion of preventing the free flow of information
pertaining 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 for
mundane postings of goods and services through classified ads.
It is the contention of 3taps that no party, Craigslist or any other, can use a
predatory Terms of Use contract to have users ascribe and relay copyright
attributable qualities to simple exchange data that merely describes the fact of an
item or service being offered for sale. Even if one wants to accept a thin claim of
copyright, notions of fair use and of implied license for reasonable rebroadcast of
that information once posted in public are common sense expectations.
Craigslist could set up a private members exchange (aka a walled garden) but it
chooses not to do so and allows search engine to index all its postings because of the
public benefit of having that information out there for others to discover. What
Craigslist is upset about is that others (including perceived competitors) also find
that data in the public domain, and can create better search methods and user
interfaces to use that data and other sources to create a broader view of all
exchange data (both Craigslist and non-Craigslist). PadMapper is just one such
instance of an “exchange of exchanges” that trumps the narrowness of CL with data
from other rental exchanges for its particular niche.
The Craigslist lawsuit claims that the infringing parties are getting their data from
Craigslist itself – and this is false. 3taps finds the data by using the same public
search engines that everyone else has access too – albeit faster and with global
reach and the ability to avail this data to other innovative developers without them
having to inefficiently repeat the effort. The 3taps utility fills the niche of creating
an API (the hard way because its done from search engines rather than original
Court case establishing that information alone without a minimum of original creativity cannot be
protected by copyright.

3. sources) for data that, along with other lack of innovations by CL, Craigslist has
clearly 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. Just
look at innovators in the air travel space that have had to do the same (albeit with
better funding to standup to trolls). Southwest may not want to participate in
Orbitz’s billing sites (and therefore aren’t shown in its search results) but that
doesn’t mean it should or can stop Kayak from showing schedules including the
times of its (publicly searchable/available) flight schedules.
The point is that 3taps doesn’t have to even visit Craigslist servers to get this info as
Craigslist has already allowed this data to be passed on to any of the major search
engines on the internet. Its already out there – duh! But of course general purpose
page rank algorithms aren’t the best way to organize exchange data – which is
where part two of the 3taps secret sauce comes in. But we are getting distracted by
innovation when what the real focus (sadly) here is litigation to make sure that we
never 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 on
Craigslist servers to achieve these ends as Craigslist has already availed the data to
third party search engines which serve all the volume of requests of the new
generation of innovators. Craigslist can neither claim TOU control over access to its
servers (as they are not accessed) nor copyright like control over factual offers of
goods and services in the public domain (for there is no copyright in facts or
information of with a de minimis creativity).
Exchange postings in the public domain are not and should not ever be thought of as
copyrightable nuggets to be squirreled away into dark pools for the eyes of some
but not all. If they are, then the whole notion of best execution achieved through
open and equal access to public market exchange data is held hostage to the
overreach of copyright. We aren’t talking about private markets here (which have
their own commercial protections). We are talking about public markets, public
facts, 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 internet
is 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. The
safest, fastest, best mileage, 7 person vehicle I can imagine (with no need to muck
around with kids car seats). How hard or long would it take for me to find that with
legacy Craigslist. F-o-r E-v-e-r. But with access to search tools that put the humpty
dumpty of diverse data together in ways that Craigslist absolutely thwarts, I was
able to score the exact match in the distant city of Salt Lake City – to which I was
willing to fly and make my local purchase and drive back to SF on the wide open
route 50 (gosh if only I could have paid with Square!).

4. OK, I realize that someone in Craigslist thinks I’ve done evil by searching globally
rather than locally (even though I made the purchase locally once I found my hearts
desire). But really, why should I be stopped from doing this search – by technical
blocking or legal harassment. So I scratched my itch and figured that others don’t
want to be similarly blocked … and realized that the luck of fate gives me access to
the resources to make ones imagination of a better world into something that
actually kindof works. So its not just about getting my dream car…. I also learned
how to cache all CL postings with the word “stolen” in it so that I could mechanical
turk new postings of bikes by folks fenced stolen goods – and yes with that data
mining 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 systematic
recovery of lost pets…..all this and all these other innovations currently thwarted by
one firm’s presumptive use of what their users want. Why not let the users actually
show what they want by letting them use a multitude of innovative sites that all
have 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 the
Encyclopedia Britannica. What’s the sense of that? Or more generally, what’s the
sense of simply accepting a single OZ that knows all about what answers can be
provided – or even what questions can be asked. OK, personal rant completed and
the “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 hard
to efficiently search as a means of control.
There was time that Craiglist would be giving rather that getting this rant. The
receiver would have been the disrupted legacy newspapers who use to rely on
paper postings of classified exchanges to largely pay for investments in newsrooms
to create their own content. Well that’s long gone now (even before the advent of
Twitter), but now the roles have returned and its Craigslist trying to hold onto
keeping the lid on local exchange listings – initially through technology, but now
through resorting to copyright trolling.
Craiglist has great data and an interface that many people like and prefer – there’s
nothing wrong and everything right in that. But its another matter if they think that
while 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 players
building search and display innovations from touching that very same data that is
sitting in Bing and Google. Remember, we aren’t talking LexusNexis anymore where
users are subscribing to a private, close loop search network. We are talking open
loop searching – which Craigslist has allowed and embraced from its inception, but
now with a penchant for reaching beyond it own site access to control access by
third parties to fourth parties for the benefit of fifth parties. Thank goodness
Craigslist hasn’t yet reached to control six degrees of separation.
Litigating rather than innovating works for CL regardless of the merits of the case
when there is a gross imbalance of power between the parties to a dispute.

5. Craigslist has prevailed on that basis again and again by scores of C&Ds against
small fry without the resources to stand up for themselves let alone bump the
debate up to the underlying principles CL progressively encroaches upon. The only
pushback to CL extension of control has been some noise on message boards by
those 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 and
loose with some facts and/or upon collateral issues which rational people can agree
or disagree. These can and will be addressed by 3taps and PadMapper in replies to
the complaint as framed. But what needs to be transformed is the discourse about
whether Craigslist – or any other established web property – can enforce copyright
troll like Terms of Use on any and all that don’t have the means to stand up for
themselves on a one-off basis.
PadMapper has really brought the litigate versus innovate conundrum to the top of
the stack in the copyright wars. ABetaBeat report caught the spirit of the dispute in
the title “Craigslist Goes Full on Troll” rather than face the music of the observation
by 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 feel
happy enough with CL UI/UX to keep coming back to the original. But that’s a
market decision by some against others – and its not the market that Craigslist is
appealing to by trying to conflate access to public domain data with a demand that
access to such facts be done only through its UI and no other. Hey, by this time, the
reader has probably forgotten that the Craigslist founder pledged just the opposite
point of view to the legal aggression currently being pursued by their legal
surrogates.
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 that
Craigslist charges (and prices) in segments where it has enough monopoly power to
extract rents that generate $300M a year in revenue with little offsetting cost.2 In
other potentially competitive segments, the price is zero – a practice economists
understand as dumping or cross subsidization and that Microsoft paid a fine for
getting caught doing with Internet Explorer bundling in the past decade. I believe
the quote was “We’re going to cut off their [Netscape’s] air supply. Everything
they’re selling, we’re giving away free.”3 Whereas Bill Gates used the expression
“cut of the oxygen supply,” for dealing with pesky and disruptive
startups,Craigslist’s euphemism is de-monetization to describe their tactical
strategy of not charging for broad swaths of the exchange space while raking in
2 Download “Craigslist By the Numbers” for more info on Craigslist volumes – paid
and unpaid. From the Advocacy section of the 3taps.com website
3quote attributed to Microsoft VP Paul Maritz in the US DOJs evidence at the anti-
trust trial

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 world
endeavors, while leaving the crunching to Ballamers and Buckmasters.
Despite the CL “.org” designation, this is not a charity ball anymore even if it might
have started out that way. BTW, we have no problem with the money that Craigslist
makes – and wish them every financial success going forward – because yes we
want, need, and believe Craiglist should succeed. We are midgets on the shoulders
of giants, even though CL may attempt to disabuse us of the strength of their own
hand. We respect and applaud lots of what they have done on the whole – and even
can 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, Righthaven
and the Motion Picture Association for most troll filings of the year. You guys are
too good for that.
As for the disgorgement of ill-gotten profits that Craigslist seeks in its lawsuit from
the free-riding defendant 3taps – the author fears that CL’s legal team may be a bit
let down when the bloom is off the rose about the recapture of those
alledgedillicit3taps spoils. 3taps has never charged for any of the data it has
provided 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 that
situation any time soon. No VC has expressed interest in such a venture that
manages to overlay huge technical risk, non-existent cash flow, with a healthy dose
of legal and reputational risk. Wow, now here’s a seriously bad idea that only a
mother could love.
But when it comes to cause of the public domain, such mothers do exist. The hope is
that something (we don’t know what) might come out of enabling best execution in
the 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 new
innovation occurs when public facts are indeed public property with free and equal
access to all. I/we are curious. Just as I was when that first opportunity came
through the door to drop some coin on funding Twitter or advising on Square. And
further full disclosure – the original idea and name for 3taps wasn’t mine either. I’m
just the guy who put the milk in the fridge for the folks that really do the work to
unlock 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 in
the back row of the litigation bus in the meantime. Rosa Parks might have some
good advice for the hapless innovatorco-named in this legal action – the founder of
PadMapper. He’s who’s fired up more than a few users who believe there might well
be a better way to look at the same old data. 3taps extolls his efforts and is
4The Craigslist Credo: Unbrand, Demonetize, and Uncompete from “Why is
Craigslist Such a Mess” Wired Magazine 17.09

7. concerned merely with the mundane business of picks and shovels for liberating the
factual data that never should have been shanghaied in the first place.