3Taps Files Countersuit, Says Craigslist Is Anticompetitive. ‘We Just Want To Use Data Without Fear Of Being Sued’

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Craigslist may have a peace sign as part of its logo, but the war over its data continues. As TechCrunch reported it would yesterday, 3Taps has today filed a countersuit against Craigslist in the U.S. District Court for the Northern District of California, responding point by point to Craigslist’s allegations of copyright infringement and further levelling counter-accusations at Craigslist of uncompetitive and antitrust behavior. We’ve embedded the full suit below.

Craigslist has been suing 3Taps and another company, PadMapper, over the use of Craiglist’s listings data in 3Taps’ API, with PadMapper named in the suit for being a user of that API.

So far, it’s only 3Taps named in the counterclaim, but TechCrunch understands that this could potentially change, as there are a number of companies that have been issued with cease and desist letters by Craigslist. One that has talked to TechCrunch noted that if it gets named in Craigslist’s suit, it will consider joining the counterclaim.

This story began life as some startups innovating on the fact that Craigslist data is freely searchable on Google but is notoriously difficult to navigate, and then took a proprietary turn when Craigslist started to crack down on them using its data. Now it has reached a decidedly legal juncture.

While several of the smaller companies that were issued with C&Ds by Craigslist simply shut down operations, 3Taps has taken a different route.

Represented by the high-power law firm of Skadden, Arps, Slate, Meagher & Flom, 3Taps and its founder/CEO Greg Kidd feel that this is more than just a fight about getting to use Craiglist data, but also about how data in the public domain should be treated legally, what rights third parties should have to this data, and what the separation should be between technological innovation and information. As Kidd noted in his statement on the suit:

“The issue here is who gets to use exchange related data – product descriptions and prices – in a vital online marketplace. By allowing search engines to capture this information, Craigslist is making it publicly available in an attempt to drive users to its site, yet refuses to accept the consequences: consumer-driven innovation,” Greg Kidd, the founder and CEO of 3Taps, said in a statement. ”That public data could be leveraged to spur innovation that will render markets more efficient and create better experiences for consumers. But Craigslist would prefer to stymie any potential competition at the expense of its users.

“While we respect what Craigslist has accomplished in attaining dominance over online classified advertising, we object to them using that market power illegally to stifle innovation and hurt consumers. As craigslist spends heavily to bully and intimidate companies that challenge them, consumers are deprived of better ways to find and execute real-time exchange transactions.”

Sherwin Siy, VP of legal affairs at data advocacy group Public Knowledge, believes that Craigslist may have some difficulty proving their position on copyright:

The vast majority of postings on Craigslist aren’t going to be covered by copyright anyway. For something to be copyrighted, it has to have at least a “modicum of creativity.” My Craigslist posting about how I have a chair for sale for $25 (OBO) is not at all creative. And even if there’s a minority of posts that are creative, the copyright in those posts belongs to the people who wrote them, not Craigslist.

Craigslist might be trying to claim that their terms of service require posters to sign their rights over to Craigslist, but that’s highly unlikely to be held a valid transfer of rights by a court.

Basically, there’s not much of a copyright case there for Craigslist.

From what we understand, Craigslist now has a 20-day period to respond to the countersuit, with a possible month extension to that.

As for damages, Kidd notes that any antitrust case has a loss-of-business, triple-damages result. “And after those C&D orders, most of our customers left us. But that’s not the purpose of this lawsuit. It’s just to get them to stop suing us and everyone else. We and others want to be able to to use the data without fear of being sued.”

As for others joining 3Taps, Kidd is hesitant: “They could join the suit, but I’m not sure I want to invite anyone into a swimming pool with an unknown level of expense. And we don’t want more litigation.”