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Craigslist, Please Pass the Ass

October 24, 2009

Note to would-be netrepreneurs: if you want to avoid being sued, don’t do anything (the Craigslist way).  If you are simply a passive conduit, it is quite possible that you won’t be held responsible for the nefarious and illegal (and perhaps more importantly, profitable) activity of your patrons on the grounds that you’re not actually inducing the conduct.  At least that’s what a federal court seems to have held in Dart v. Craigslist, Inc.

The fact that Craigslist also pro­vides a word­search func­tion does not change the analy­sis. The word-search func­tion is a “neu­tral tool” that per­mits users to search for terms that they select in ads cre­ated by other users. It does not cause or induce any­one to cre­ate, post, or search for ille­gal content.

Similar analysis has sometimes prevailed in the Copyright context, those wily content owners are getting more and more desperate.   Desperate enough to tell a shop assis­tant in England that she could not sing while she stacked shelves with­out a per­for­mance license.  But maybe Copyright over-enforcement can be a force for good, like its use by a group of musicians who want to use their Copyright pull to stop Guantanamo interrogation with their music.

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