3TAPS, INC.'S ANSWER AND COUNTERCLAIM Case No. CV-12 ...

123456789101112131415161718192021222324252627283TAPS’ ANSWER AND COUNTERCLAIMSerial Sham Cease &Desist Letters and Sham Lawsuitscraigslist has targeted 3taps and innovating websites that rely on dataindexed by 3taps with sham cease and desist letters and sham lawsuits –including this lawsuit against 3taps and PadMapper – alleging, inter alia,copyright infringement, breach of craigslist’s Terms of Use, and trademarkinfringement. craigslist’s claims are objectively baseless. First, the dataindexed by 3taps (and, in turn, used by its partners) is factual material notsubject to copyright protection. Moreover, to the extent these user postingsare entitled to copyright protection, craigslist does not have standing toenforce these copyrights because it is neither the owner nor exclusivelicensee of this content. (While craigslist imposed a requirement that usersmake craigslist the exclusive licensee of all newly-posted content shortlyafter it filed suit against 3taps, craigslist abandoned this condition less thantwo weeks later, in the face of user outrage and criticism by web communityand legal forums.) Second, 3taps is not subject to craigslist’s Terms of Usebecause it does not access craigslist’s website to obtain craigslist data.Rather, because craigslist makes its content available to general searchengines (e.g., Google, Bing, etc.), this data already is in the public domain.3taps simply sourced the data from caches maintained by such generalsearch engines, a fact that craigslist already knew when it filed suit. Third,craigslist’s trademark infringement suit against 3taps is equally baseless, as3taps’ craiggers’ site only invokes the “craigslist” name to describe theoriginal source of onboarded data, rather than in any way that could createcustomer confusion. Any reasonable litigant in craigslist’s position wouldknow that its claims against 3taps and its partners lack merit. Indeed, asdiscussed in more detail below, craigslist’s conduct after filing this suitagainst 3taps belies any contention that craigslist’s claims have a good faithbasis. Nevertheless, even with knowledge that its claims utterly lack merit,craigslist has threatened and filed lawsuits as part of a policy intended tointimidate innovators and force them to cease competing with craigslist.Copyright Misusecraigslist purports to enforce copyrights on user content posted on itswebsite against 3taps and innovators like PadMapper that rely on 3taps’indexed content. In the process, craigslist has engaged in copyright misusebecause: (1) as described above, the content that craigslist claims isprotected by these copyrights is factual data that cannot be subject to anycopyright protection; and (2) craigslist is not the owner or exclusive licenseeof users’ original postings, and therefore, lacks standing to enforce anycopyrights associated with these postings.Improperly Restrictive Terms of Use on craigslist’s Userscraigslist also has imposed unduly restrictive Terms of Use on its users thatare intended to restrain competition. craigslist’s Terms of Use prohibitmaking “available any program, application or service” that enables29CASE NO.: 12-CV-3816-CRB