Last week saw an interesting development in craigslist’s lawsuit against 3Taps, brought in July 2012, in which the classified ad site alleged that 3Taps impermissibly crawled or scraped craigslist.com to populate data into the “Craiggers” API and eventually, the “PadMapper” apartment-locator app. With its Answer, 3Taps filed a Counterclaim raising Sherman Act antitrust allegations, alleging that craigslist has impermissibly controlled and impeded access to otherwise public information on the internet — and thus has maintained a monopoly in the market for classified ad and apartment listings.
But 3Taps has offered a vigorous defense — both in and out of court — essentially claiming that what is on the public web is up for grabs, and that no reasonable distinction can be drawn between a search engine that may permissibly “crawl” data, and another “crawler” such as an API that accesses data for its own commercial purpose. With its antitrust allegations, 3Taps alleges, in a nutshell, that:
1 -Craigslist has monopoly power in the relevant product market for the “onboarding” of online classified ad content — meaning the “creation, posting, editing, and deletion of users’ online classified ads.” According to the Complaint, craigslist possesses a 90 percent market share in that market, and a 65 percent market share in the sub-market for apartment listings; and that
2 -Craigslist’s long-standing practice of denying or cutting off access to products, APIs and RSS feeds that seek to compile its listings amounts to illegal maintenance of its monopoly. The Complaint particularly calls into question cease and desist letters craigslist has sent to numerous companies that crawl, use and/or curate data from craigslist.
Of particular relevance to data compilers, especially those who collect online data — and this makes the case somewhat novel — 3Taps insists that it obtained its data not directly from craiglist, but rather from public interfaces and engines such as google and bing. Presumably for this reason, craigslist did not raise claims under the federal CFAA or similar state and common law computer trespass claims. Rather, craiglist principally alleges violations of copyright law and contract (based on the terms of service).