Tuesday, May 7, 2013

A Response to Jerry: Craig Should Still Dismiss

[Cross-posted on Freedom to Tinker]

Jerry Brito has a new post on the Reason blog arguing that I and others have been too harsh on Craigslist for their recent lawsuit. As I wrote in my earlier post, Craigslist should give up the lawsuit not just because it's unlikely to prevail, but also because it risks setting bad precedents and is downright distasteful. Jerry argues that what the startups that scrape Craigslist data are doing doesn't "sit well," and that there are a several reasons to temper criticism of Craigslist.

I remain unconvinced.

To begin with, the notion that something doesn't "sit well" is not necessarily a good indicator that one can or should prevail in legal action. To be sure, tort law (and common law more generally) develops in part out of our collective notion of what does or doesn't seem right. Jerry concedes that the copyright claims are bogus, and that the CFAA claims are ill-advised, so we're left with doctrines like misappropriation and trespass to chattels. I'll get to those in a moment.

First, there is a bit of confusion around the copyright claims, so it's worth revisiting them. The court held that Craigslist unambiguously does not hold copyright in user-created postings, except for those three ill-fated weeks last summer when they instituted that horrible terms of service. At all other times, they do not own the posts. However, Jerry's claim--which has been made by others--that no copyright exists in these posts whatsoever, seems weak. As the court noted, at this stage of the proceedings it portrays Craigslist's claim of copyrightability in the "most favorable light" and concludes that the claim:

sufficiently alleges that users’ posts on the Craigslist site have a level of creativity that is not "so trivial as to be virtually nonexistent," and thus are sufficiently “original” to fall within the scope of copyright protection.

It seems likely that the court will ultimately hold that these are not Feist-style facts, but instead creative works. I don't necessarily think that this is a great policy outcome, but it is consistent with copyright jurisprudence generally (as ill-founded as that may be). It's just that (other than during those three weeks) the copyright resided with the poster, not Craigslist.

The court did not dismiss Craigslist's claim of copyright over the compilation of posts. The way in which Craigslist organizes and presents posts may well be copyrightable. I didn't see that the order specifically spoke to the complaint's allegation that the 3taps "craiggers" site imitated the "visual fashion" of the Craigslist posts, but perhaps this survives. It is somewhere between a copyright and trademark claim (maybe "trade dress"?). This is all to say that the copyright
claims are not entirely dead, although the strongest claims are indeed thrown out.

On the CFAA claims, Jerry says that, "one can understand why it might have thrown the kitchen sink into its lawsuit." Well yes, I can understand why one might do that, particularly if one were a litigator interested solely in winning the case. However, the lawyers are not adequately representing the interests of their client here--I think that the client includes Craig, and the Craig I've met would not have agreed. If that's the case, the "kitchen sink" approach is wildly inappropriate. It has the potential to do collateral damage to internet-related jurisprudence, and goes against principles of tolerance and freedom.

Jerry then argues that maybe this is the right case to test out some novel approaches to applying physical-world torts to online things that feel kinda like property. The tort of Misappropriation is about property. The tort of trespass to chattels is about property ("chattels" are, roughly speaking, "your stuff"). Jerry is suggesting that this case is a good opportunity to further propertize the digital world.

First of all, this is not the right case. It's a messy fact pattern, and the conflicting interests of the Craigslist ethos and intellectual property make it more ugly. Second, moving law in this direction is bad policy. Jerry has written extensively about the problems with propertization creep, so I don't know why he would think that this makes sense.

Jerry also turns to the economics of network effects to support his "it doesn't feel right" hypothesis. As his argument goes, Craigslist built the network effects that it now enjoys, so competitors should have to do the same. I suppose that this satisfies a visceral sense of fairness, but it doesn't say much about what is optimal for the market and for innovation. Jerry says that what Craigslist did was to disrupt the newspaper market for classifieds via, "true innovation: taking command of the network effect by offering a superior product."

I agree that Craigslist innovated. However, their innovation contributed to their network effect, which then (as network effects tend to do) fed itself. Once you have a network effect in a market, your incentives to innovate decrease because of lock-in. Others, however, are strongly motivated to try to break into that market. Padmapper and others innovated--in a way that is no less "true" than Craigslist's original innovation. Craigslist saw the value of that innovation and even tried to imitate it by creating its own mapping tool (arguably innovation in and of itself).

No doubt, some Paleo-Schumpeterian will argue that these incentives are necessary in order to motivate innovation. They will argue that without them, creative destruction will be halted and all of us will trade in our riding boots for birkenstocks. Of course, I'm not sure that Craig ever had the incentive to become the greatest horseman in San Francisco. He had a different incentive.

It all sounds more like a shift from incentive to excess to me.

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