Both 3Taps and Padmapper are potentially liable in this scheme. DMCA compliance does not protect this type of use; the safe harbors are very narrow and specific. It only protects websites (or services) from liability for content posted to the website directly, by users of the website (or service). The DMCA does not protect the website (or service) from content it actively acquires, on its own or on behalf of another party.
3Tap is scraping the Google Cache under some misguided interpretation that the copy of the Craiglist site is not protected by copyright. This is as ridiculous a legal interpretation as Carreon's charges against the Oatmeal for defamation. Google has fair use rights to maintain a copy of Craiglist's site in its cache, but ownership of the content remains with Craiglist. This is no different than if the site were hosted on Akamai or CloudFront servers instead of Craiglist's own servers.
Copyright liability does not stop with the first infringer. Every infringer is potentially liable (which is why the DMCA safe harbors were necessary in the first place).
> 3Tap is scraping the Google Cache under some misguided interpretation that the copy of the Craiglist site is not protected by copyright.
Yes, but is 3Taps presenting a copy of the posting or the material facts contained within the posting? The former would be a copyright violation. The latter should not be. I cannot tell without delving into the SDK. I take it you didn't consider this.
I did consider this. Facts are not copyrightable, but unique selections of facts are copyrightable. This is a basic tenet of the copyright decisions regarding databases and phonebooks.
Moreover, even if the copyright does not rise to the level of a copyright violation (if the facts copied are not sufficiently unique -- that would require a look at the CL fields, the 3Tap API, and Padmapper's use), it would still be a TOS violation, which courts have held are enforceable especially against commercial entities.
1) Databases are protected by copyright, but there is no such thing as "database rights." As I have repeatedly pointed out, the selection, arrangement, and presentation of facts is copyrightable in the U.S. if such activities involve any actual choice.
2) A copy of the Craiglist site is visited. The fact that the copy is hosted by the Google cache is immaterial for copyright or TOS purposes, unless Google cache did not have any right to keep that copy. Google operates the cache under the fair use doctrine, and so has compulsory rights to the Craiglist website. Ergo, visiting the cached copy is the same as visiting the original site, for legal purposes. If it were not, then all TOS could easily be avoided simply by accessing a CloudFront or Akamai-hosted website, or through any third-party aggregation service or software.
Can you provide a source for this assertion? The terms of service on their website has the standard "you automatically grant us a license so we can distribute it" clause, but then has this additional term directly following:
> You also expressly grant and assign to CL all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).
Righthaven, as you pointed out turns on this very issue: Righthaven was not able to enforce someone else's copyright because Righthaven did not have a license to use the copyrighted material. The Righthaven court found that the "license" Righthaven had was merely a "license" to sue for damages, but Righthaven was not actually allowed to use any of the newspapers content.
Craiglist is different. Craiglist has the right to use the copyrighted content of its posters. It is a basic tenant of copyright and contract law that Craiglist therefore has the right to enforce the contract to protect its own license rights.
Honest question: would a client-side implementation be OK? As in, the only person making any requests to the CL servers is the end-user, and then a browser extension/app maps the listings? Is it wrong to automate calls to CL's server from javascript in a local app?
If no one else is doing a client-side padmapper, I sort of want to myself.
Both 3Taps and Padmapper are potentially liable in this scheme. DMCA compliance does not protect this type of use; the safe harbors are very narrow and specific. It only protects websites (or services) from liability for content posted to the website directly, by users of the website (or service). The DMCA does not protect the website (or service) from content it actively acquires, on its own or on behalf of another party.
3Tap is scraping the Google Cache under some misguided interpretation that the copy of the Craiglist site is not protected by copyright. This is as ridiculous a legal interpretation as Carreon's charges against the Oatmeal for defamation. Google has fair use rights to maintain a copy of Craiglist's site in its cache, but ownership of the content remains with Craiglist. This is no different than if the site were hosted on Akamai or CloudFront servers instead of Craiglist's own servers.
Copyright liability does not stop with the first infringer. Every infringer is potentially liable (which is why the DMCA safe harbors were necessary in the first place).