For years, craigslist has aggressively used technological and legal methods to prevent unauthorized parties from scraping, linking to or accessing user postings for their own commercial purposes.  In a prior post, we briefly discussed craigslist’s action against a certain aggregator that was scraping content from the craigslist site (despite having received a cease and desist letter informing it that it was no long permitted to access the site) and offering the data to outside developers through an API. (See generally Craigslist, Inc. v. 3Taps, Inc., 2013 WL 1819999 (N.D. Cal. Apr. 30, 2013)).  In 2015, craigslist subsequently settled the 3Taps lawsuit, with relief against various defendants that included monetary payments and a permanent injunction barring the defendants from accessing any craigslist content, circumventing any technological measures that prohibit spidering activity or otherwise representing that they were affiliated with craigslist.

This past April, the 3Taps saga, in a way, was resurrected.  Craigslist filed a complaint against the real estate listing site RadPad, an entity that had allegedly received, for a limited time period, scraped craigslist data from 3Taps that it used on its own website.  In its complaint, craigslist claims that after the 3Taps litigation was settled in June 2015, RadPad or its agents began their own independent efforts to scrape craigslist site.  Craigslist alleges that RadPad used sophisticated techniques to evade detection and scrape thousands of user postings and thereafter harvested users’ contact information to send spam over the site’s messaging system in an effort to entice users to switch to RadPad’s services.  (See Craigslist, Inc. v. RadPad, Inc., No. 16-1856 (N.D. Cal. filed Apr. 8, 2016)).  In its complaint seeking compensatory damages and injunctive relief, craigslist brought several causes of action, including:

• Breach of Contract: The complaint alleges that as a user of the site, RadPad was presented with and agreed to the site’s Terms of Use, which prohibits scraping and spidering activity, collection of user contact information, as well as unsolicited spam.

• CAN-SPAM (and California state spam law): RadPad allegedly initiated the transmission of commercial email messages with misleading subject headings and a non-functioning opt-out mechanism, among other violations, and also had allegedly collected email addresses using email harvesting software.  Craigslist asserts that it was adversely affected and incurred expenses to combat the spam messages and is entitled to statutory damages.

• Computer Fraud and Abuse Act (CFAA) (and California state law equivalent): The complaint alleges that RadPad accessed craigslist’s site in contravention of the Terms of Use and thereby gained unauthorized access to craigslist’s servers and obtained valuable user data.  Websites seeking to deter unauthorized screen scraping frequently advance this federal cause of action, with mixed results.

• Copyright Infringement: Craigslist claims that RadPad is liable for secondary copyright infringement for inducing 3Taps’ prior copyright infringement, by allegedly assisting 3Taps in shaping the “data feed” and advising on how to circumvent the site’s technological blocks.

In response, RadPad filed its answer late last month, arguing that craigslist is attempting to exclude RadPad from accessing publicly-available information that would allow it to compete in the classified-ad market for real estate rentals.  In its counterclaim, RadPad claims that, in its efforts to block RadPad, craigslist has prevented email messages containing the word “RadPad” from being delivered to landlords in response to craigslist listings, an act that, it alleges, constitutes unfair competition.  RadPad is also seeking a declaration that craigslist is wrongfully asserting copyright claims over rental listings that are not copyrightable subject matter.

Outside of the dispute, the debate continues.  Digital rights advocates have argued that content on publicly-available websites is implicitly free to disseminate across the web, while web services hosting valuable user-generated content or other data typically wish to exercise control over which parties can access and use it for commercial purposes.  While the law surrounding scraping remains unsettled, craigslist has notched some notable litigation successes in recent years, including, in the prior 3Taps case.  In that case, a California district court ruled, among other things, that an owner of a publicly-accessible website may, through a cease-and-desist letter and use of IP address blocking technology, revoke a specific user’s authorization to access that website. Such lack of “authorization” could form the basis of a viable claim under the federal Computer Fraud and Abuse Act and state law counterpart. See Craigslist, Inc. v. 3Taps, Inc., 2013 WL 4447520 (N.D. Cal. Aug. 16, 2013).

It remains to be seen whether the court will consider any of the issues in the RadPad dispute on the merits or whether the parties will resolve the matter with some agreed-upon restrictions limiting or barring RadPad’s access to craigslist’s site.  We will continue to watch this case and similar data scraping disputes carefully.