By Geoff Kraemer
On July 20, 2012, Craigslist, the website known for providing free classifieds, sued 3Taps Inc. and Padmapper Inc., alleging both copyright and trademark infringement.1
In its complaint, Craigslist alleged that 3Taps actually “scrapes” content directly from the Craigslist website, and posts the content in the exact same format on 3Taps’ website, “Craiggers.”23 Since filing the complaint, it appears that Craigslist has dropped the copyright claim with regard to the “scraping."4
Craigslist’s decision was likely based on a closer examination of the Copyright Act, specifically in light of Feist Publications, Inc. v. Rural Telephone Service.5 In Feist, the Court stated that “[n]o one may claim originality as to facts.”6 Facts such as the square footage of an apartment, the wages for a job, and the color of a bicycle, however, are exactly the content that Craigslist hoped to protect.
Feist prohibited the copyrighting of facts based on a finding that “one who discovers [or reports] a fact is not its ‘maker’ or ‘originator,”7 and therefore the “minimal creative spark required by the Copyright Act and the Constitution” is not satisfied.8 In Feist, the Court identified firms, such as Craigslist, that accumulate facts in a particular way, as “compilers.”9 While the Court understood that under this rule “much of the fruit of the compiler’s labor may be used by others without compensation,” it explained that “[t]he primary objective of copyright is not to reward the labor of authors, but ‘to promote the Progress of Science and useful Arts.”10 Not shockingly, this holding means that the factual content of Craigslist posts is not a “useful art.”
Feist does provide “factual compilations” with the possibility of a limited form of copyright protection.11 The order in which one placed facts and how to arrange the compiled data so that it may best be used are creative and thus protectable activity.12 If the choices of the compiler show “some minimal level of creativity” its choices are copyrightable.13 This copyright protection, however, only extends to the specific selection or arrangement; the facts are never protected.14
Whether Craigslist will be able to show the requisite level of creativity required for protection is yet to be determined. It seems unlikely, at this point, that Craigslist’s compilation will pass muster. In Craigslist’s complaint it describes its website as “distinctive in its simplicity and efficiency,” with a “clear and straightforward design….”15 This simplicity may prove fatal. If the court hearing this case concludes that the simplistic design and arrangement of facts is an “obvious” choice,16 Craigslist will not have any copyright protection for its website.
Craigslist bases its alleged trademark infringements on 3Tap’s use of the name “CRAIGGERS” for its website.17 Specifically, Craigslist alleged that 3Tap’s use constituted dilution by blurring.18 Dilution by blurring is a cause of action that requires one to show that another is using a mark so similar to the former’s famous mark that it will blur the distinctiveness of that mark.19
As a threshold issue, Craigslist must prove that its mark is famous.20 Craigslist is the nation’s third most trafficked website, and tenth internationally.21 It receives hundreds of billions of page views annually, and several hundred million posts per year.22 Craigslist will not have much problem proving that its mark is famous.
Craigslist must also show that the similarity between “CRAIGGERS” and “CRAIGSLIST” is such that “CRAIGGERS” impairs the distinctiveness of the famous, “CRAIGSLIST,” mark.23 In making its case, Craigslist will likely indicate that
- the degree of similarity between the two marks is quite high;
- it is the only company using the mark “CRAIGSLIST”; and
- the mark is widely recognized by internet shoppers.
All of these points weigh in favor of finding dilution by blurring.24
The two factors that weigh most heavily in favor of Craigslist, though, are the fifth and sixth factors listed in the Lanham Act.25 The fifth factor asks whether the “[use] of the mark [CRAIGGERS was] intended to create an association with the famous [CRAIGSLIST] mark.”26 The sixth factor asks whether “the mark or trade name and the famous mark” are actually associated. Based solely on Figure 9 in Craigslist’s complaint, “CRAIGGERS” was intended to create an association and an actual association exists.27 The figure shows the mark “CRAIGGERS” and says “craigslist data. better [sic] than craigslist!”28 Craigslist has this claim in the bag.
As such, Craigslist will not be able to prevent other websites from displaying the information that it has compiled. But it should be able to protect the way in which it currently displays the information that it compiles. And it will be able to win a significant victory by forcing Tap3 to change the name of its website.
4Kurt Opsahl, Good News: Craigslist drops exclusive license to your posts, Electronic Frontier Foundation (August 9, 2012) https://www.eff.org/deeplinks/2012/08/good-news-craigslist-drops-exclusive-license-your-posts