In a welcome course correction, craigslist has removed its short-lived provision that required users to grant it an exclusive license to--in other words granting them ownership of--every post. We were unhappily surprised to see this click-through demand, but are glad to see that craigslist has promptly removed it.
For many years, craigslist has been a good digital citizen. Its opposition to SOPA/PIPA was critically important, and it has been at the forefront of challenges to Section 230 and freedom of expression online. We understand that craigslist faces real challenges in trying to preserve its character and does not want third parties to simply reuse its content in ways that are out of line with its user community’s expectations and could be harmful to its users.
Nevertheless, it was important for craigslist to remove the provision because claiming an exclusive license to the user’s posts--to the exclusion of everyone, including the original poster--would have harmed both innovation and users’ rights, and would have set a terrible precedent. We met with craigslist to discuss this recently and are pleased about their prompt action.
The exclusive license was first noticed about a week ago, shortly after news broke of craigslist’s lawsuit against 3Tap and PadMapper. The posting provision said:
Clicking “Continue” confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.
Under copyright law, an exclusive license is a “transfer of copyright ownership” (17 U.S.C. § 101). If upheld, it would have meant that craigslist owned every post that you made (assuming a court would find clicking “Continue” was equivalent to an “instrument of conveyance … in writing and signed by the owner” (17 U.S.C. § 204)). The change appeared to fit in with the lawsuit, which sued, in part, over alleged infringement of these newly-minted exclusive rights.
craigslist demanding ownership of user posts would have potentially meant that users couldn’t republish their ads on multiple services without risking a claim of infringement. And while not every craigslist post is going to go viral and have real value outside the original context (like the “Jesus Tap-Dancing Christ” car ad), users still need the right to post and repost their material in a variety of venues. Moreover, removing the exclusive license provision retains craigslist’s compatibility with common licensing schemes, like the Creative Commons ShareAlike license or the GNU Free Documentation License. And craigslist’s change lessens the chance that other websites will start demanding ownership of the content you post there.
Disclosure: Craig Newmark, founder of craigslist, is a member of EFF’s Advisory Board, and craigslist has donated to EFF.