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

12II.COPYRIGHT MISUSE163. craigslist has committed copyright misuse as part of its overall scheme to inhibit34567891011121314151617181920212223242526innovation and restrain competition in the Relevant Markets.164. craigslist’s copyright misuse is evidenced by the filing of this lawsuit against 3tapsand PadMapper, as well as its numerous other lawsuits and cease and disease letters threateninglawsuits against, inter alia, Lovely, HuntSmartly, Invatory, for-sale-alert.com, list-alert.com,Tempest, jumpoffcampus.com, wishcan.com, and SnapStore. As is evident in these suits and ceaseand desist letters, craigslist engages in copyright misuse in at least two ways.165. First, craigslist engages in copyright misuse by claiming protection for materialbeyond the scope of any valid copyright. Specifically, craigslist asserts that the factual content ofits postings, which 3taps indexes and provides to partners like PadMapper, is protected bycopyright when such factual material plainly cannot be subject to any copyright protection. Thus,craigslist is attempting to use the doctrine of copyright to secure an exclusive right or limitedmonopoly that could not be granted by the Copyright Office.166. Second, because craigslist is not the owner or exclusive licensee of its users’postings, it lacks standing to assert infringement of its users’ copyrights, assuming arguendo thatany such copyrights exist.167. craigslist’s copyright misuse has compelled numerous competitors to exit theRelevant Markets, and therefore, has furthered craigslist’s scheme and had an anticompetitiveimpact on these markets. For example, Ziink’s Craigslist Helper was disabled in 2012 after itreceived a cease and desist letter from craigslist. Similarly, after filing suit against 3taps, craigslistsent cease and desist letters to 3taps’ partners, including HuntSmartly, Invatory, for-sale-alert.com,list-alert.com, Tempest, jumpoffcampus.com, wishcan.com, and SnapStore. These partnerssubsequently exited the search market. Unless craigslist’s anticompetitive scheme is enjoined,other specialized search engines, such as JeBoom, PadMapper, and Lovely, likely will suffer thesame fate.27III.IMPROPERLY RESTRICTIVE TERMS OF USE ON CRAIGSLIST’S USERS28168. craigslist’s Terms of Use are an additional component of its scheme to inhibit3TAPS’ ANSWER AND COUNTERCLAIM60CASE NO.: 12-CV-3816-CRB