Craigslist, Inc. v John Doe, No. 3:2008cv05060 - Document 35 (N.D. Cal. 2009)
Court Description: STIPULATION AND ORDER Granting Craigslist Leave to File its First Amended Complaint. Signed by Judge Samuel Conti on 10/1/09. (tdm, COURT STAFF) (Filed on 10/1/2009)
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Craigslist, Inc. v John Doe 1 2 3 4 5 6 7 8 9 Doc. 35 Brian Hennessy (SBN 226721) E-mail: BHennessy@perkinscoie.com Perkins Coie LLP 101 Jefferson Drive Menlo Park, CA 94025-1114 Telephone: (650) 838-4300 Facsimile: (650) 838-4350 Elizabeth L. McDougall, WA Bar No. 27026 (pro hac vice) E-mail: EMcDougall@perkinscoie.com Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 Telephone: (206) 359-8000 Facsimile: (206) 359-9000 Attorneys for Plaintiff craigslist, Inc. 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 craigslist, Inc., a Delaware corporation, 15 Plaintiff, 16 v. 17 18 John Doe d/b/a Adsoncraigs.com; and Does 2 through 25, inclusive, Defendants. 19 Case No. CV-08-05060 SC STIPULATION AND [PROPOSED] ORDER GRANTING CRAIGSLIST LEAVE TO FILE ITS FIRST AMENDED COMPLAINT Dept: Before: Courtroom 1, 17th Floor Hon. Samuel Conti 20 21 22 23 24 25 26 27 28 -1CV 08-05060 SC STIPULATION AND [PROPOSED] ORDER GRANTING CRAIGSLIST LEAVE TO FILE ITS FIRST AMENDED COMPLAINT 40753-0043/LEGAL16972031.2 Dockets.Justia.com 1 WHEREAS, on November 5, 2008, craigslist, Inc. (“craigslist”) filed this case against 2 Defendants John Doe d/b/a Adsoncraigs.com; and Does 2 through 25, inclusive, Defendants, for 3 various causes of action based on their operation of the website adsoncraigs.com, which sold 4 auto-posting software in violation of craigslist’s terms of use. 5 WHEREAS, craigslist served Derek Boris as a Defendant in this action. 6 WHEREAS, Derek Boris filed an answer, alleging that Boris Group LLC is responsible 7 8 9 for the actions complained of in craigslist’s complaint. WHEREAS, pursuant to Federal Rule of Civil Procedure 15, Derek Boris has provided craigslist written consent to amend its complaint to name Boris Group LLC. 10 Now therefore, the parties, through the undersigned counsel, hereby stipulate and agree 11 that craigslist shall file its First Amended Complaint (attached as Exhibit A hereto) within five 12 days of the Court executing this Stipulation and Order. 13 IT IS SO STIPULATED. 14 15 DATED: September 29, 2009 PERKINS COIE LLP 16 By: /s/ Brian Hennessy Brian Hennessy (SBN 226721) BHennessy@perkinscoie.com Elizabeth L. McDougall (WA Bar No. 27026) EMcDougall@perkinscoie.com 17 18 19 Attorneys for Plaintiff craigslist, Inc. 20 21 22 23 24 25 26 27 28 -2CV 08-05060 SC STIPULATION AND [PROPOSED] ORDER GRANTING CRAIGSLIST LEAVE TO FILE ITS FIRST AMENDED COMPLAINT 40753-0043/LEGAL16972031.2 1 PLUNKETT COONEY DATED: September 29, 2009 2 By: /s/ Aaron B. Kendal Aaron B. Kendal (MI Bar No 63021, Admitted Pro Hac Vice) akendal@plunkettcooney.com Attorneys for Doe Defendant Derek Boris and Boris Group LLC 3 4 5 6 7 8 9 I, Brian Hennessy, hereby attest, pursuant to N.D. Cal. General Order No. 45, that the concurrence to the filing of this document has been obtained from each signatory hereto. PERKINS COIE LLP DATED: September 29, 2009 10 By: /s/ Brian Hennessy Brian Hennessy (SBN 226721) BHennessy@perkinscoie.com 11 12 Attorneys for Plaintiff craigslist, Inc. 13 14 15 16 PURSUANT TO STIPULATION, IT IS SO ORDERED. IT IS FURTHER ORDERED THAT craigslist shall file its First Amended Complaint (attached as Exhibit A hereto) within five days of the Court executing this Stipulation and Order. _______________________________ D ERE O ORD IT IS S Honorable Samuel Conti onti Judge S 22 A H ER LI RT 21 FO amuel C NO 20 R NIA 19 UNIT ED 10/1/09 Dated: _____________ S DISTRICT TE C TA RT U O 18 S 17 N F D IS T IC T O R C 23 24 25 26 27 28 -3CV 08-05060 SC STIPULATION AND [PROPOSED] ORDER GRANTING CRAIGSLIST LEAVE TO FILE ITS FIRST AMENDED COMPLAINT 40753-0043/LEGAL16972031.2 EXHIBIT A 1 2 3 4 Brian Hennessy (SBN 226721) E-mail: BHennessy@perkinscoie.com Perkins Coie LLP 101 Jefferson Drive Menlo Park, CA 94025-1114 Telephone: (650) 838-4300 Facsimile: (650) 838-4350 5 6 7 8 9 10 Elizabeth L. McDougall, WA Bar No. 27026 (pro hac vice) E-mail: EMcDougall@perkinscoie.com Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 Telephone: (206) 359-8000 Facsimile: (206) 359-9000 Attorneys for Plaintiff craigslist, Inc. 11 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN FRANCISCO DIVISION 15 16 craigslist, Inc., a Delaware corporation, Plaintiff, 17 18 19 v. Boris Group, LLC, and Does 2 through 25, inclusive, 20 Defendants. 21 22 23 24 25 26 Case No. CV 08-05060 SC PLAINTIFF CRAIGSLIST, INC.'S FIRST AMENDED COMPLAINT FOR: (1) COPYRIGHT INFRINGEMENT, 17 U.S.C. § 101, et seq.; (2) VIOLATION OF THE DIGITAL MILLENNIUM COPYRIGHT ACT, 17 U.S.C. § 1201; (3) VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT, 18 U.S.C. §1030; (4) VIOLATION OF CALIFORNIA PENAL CODE § 502; (5) TRADEMARK INFRINGEMENT, 15 U.S.C. §§ 1114 AND 1125(A); (6) TRADEMARK INFRINGEMENT UNDER CALIFORNIA LAW; (7) BREACH OF CONTRACT; (8) INDUCING BREACH OF CONTRACT; (9) INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS; AND (10) FRAUD; and 27 DEMAND FOR JURY TRIAL. 28 40753-0043/LEGAL15220321.2 -1FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 I. 1. INTRODUCTION Defendants are engaged in the unauthorized copying and intentional abuse of 3 craigslist for Defendants' own illicit profit at the expense of craigslist and legitimate craigslist 4 users. Their ongoing activities burden craigslist's operating systems and impede the free local 5 online marketplace communities that craigslist provides and seeks to protect. craigslist brings 6 this action to stop Defendants' unauthorized and unlawful conduct, and to recover for the harm 7 and expenses to craigslist already incurred. 8 9 2. craigslist and its twenty-five employees operate the website, www.craigslist.org. The website provides online localized classified ad placements and related online services. 10 3. craigslist serves millions of users in cities and communities around the world. 11 4. Other than small fees for job postings in ten cities and brokered apartment rentals 12 13 in New York City, craigslist provides its services to the public free of charge. 5. craigslist is committed to providing users with a forum that is easy to use. To this 14 end, it has developed online communities based on simplicity, speed, and uncluttered user 15 interface displays. 16 6. 17 18 19 20 craigslist presents users with simple lists of classified ads by category for geographic areas. The ads are posted by other craigslist users. 7. To post an ad, a user selects his or her geographic area, selects the appropriate category, and posts his or her ad. 8. craigslist automatically places new ads at the top of the list of ads for the chosen 21 category within the selected geographic area. As new ads are posted, existing ads move 22 progressively down the list. 23 9. craigslist implemented this system to create a simple, fair and efficient 24 organization of posted ads, and this system is a foundational pillar of craigslist's operation and 25 service. 26 10. 27 measures. craigslist protects this system through its Terms of Use ("TOUs") and security 28 40753-0043/LEGAL15220321.2 -2FIRST AMENDED COMPLAINT CV 08-05060 SC 1 11. craigslist's TOUs govern all uses of craigslist services and the craigslist website. 2 The TOUs include specific prohibitions against repetitiously posting an ad, posting an ad in 3 multiple categories, posting an ad in multiple geographic areas, and posting by automated means. 4 The TOUs also expressly prohibit the use of any form of automated device or computer program 5 that enables the submission of postings on craigslist without each posting being manually entered, 6 including, specifically, the use of automated posting devices to submit postings in bulk or at 7 regular automated intervals. 8 9 10 11 12. craigslist protects its systems, services and users through numerous security measures. These measures include technological barriers to prevent repetitious and miscategorized or mislocated postings, and to preclude posting by automation. 13. Auto-posting software and services, including the software and services provided 12 by Defendants, undermine craigslist's systems, organization and operation. Defendants sell 13 software and services that enable users to repetitiously post duplicative ads on craigslist, in 14 multiple categories on craigslist, and in multiple geographic areas on craigslist, and that 15 purposefully circumvent craigslist security measures to do so. 16 14. In the course of these activities, Defendants have created copies of craigslist's 17 copyrighted website and accessed craigslist's computer systems without and in excess of 18 authorization. Defendants' activities burden craigslist's computer systems and personnel 19 resources; they impair the efficiency, fairness and simplicity of craigslist services; and they harm 20 and interfere with craigslist's relationship, reputation and goodwill with legitimate craigslist users. 21 22 15. Defendants have also boldly and illegally used the "craigslist" mark to advertise their unlawful software and services in sponsored links on the Internet. 23 24 25 II. 16. JURISDICTION This Court has jurisdiction over this action pursuant to: a. 28 U.S.C. §§ 1331 and1338, because this action alleges violations of 26 federal statutes, including 17 U.S.C. § 101, et seq., 17 U.S.C. § 1201, 18 U.S.C. § 1030, and 15 27 U.S.C. §1114 et seq. and 1125(a); 28 40753-0043/LEGAL15220321.2 -3FIRST AMENDED COMPLAINT CV 08-05060 SC 1 b. additionally or alternatively, 28 U.S.C. § 1332, because there may be 2 complete diversity of citizenship between the parties which will be determined when the 3 defendants are identified, and because the matter in controversy exceeds the sum or value of 4 $75,000, exclusive of interest and costs; and c. 5 28 U.S.C. § 1367 (supplemental jurisdiction), because the claims alleged 6 under state law are so related to claims in this action over which this Court has original 7 jurisdiction that they form part of the same case or controversy under Article III of the United 8 States Constitution. 9 10 III. 17. VENUE Venue is proper in this District under 28 U.S.C. § 1391, because a substantial part 11 of the events or omissions giving rise to the claims occurred in this District, Defendants used 12 craigslist’s computers and services to transact their affairs, craigslist is located in this District, and 13 a substantial part of craigslist’s property, which was targeted and damaged by Defendants' acts, is 14 situated in this District. 15 18. In addition, the TOUs governing Defendants' access to and use of the craigslist 16 website and craigslist's services provide that courts located within the county of San Francisco, 17 California, shall have exclusive jurisdiction over the relationship between craigslist and 18 Defendants. 19 19. Intradistrict Assignment is proper in the San Francisco Division of this Court 20 pursuant to Civil Local Rules 3-5(b) and 3-2(c) for the reasons stated above. 21 IV. 22 23 24 20. THE PARTIES craigslist, Inc. is a Delaware corporation, with its principal and sole place of business in San Francisco, California. 21. craigslist is informed and believes, and based thereon alleges, that Defendant Boris 25 Group, LLC is a limited liability company with its principle place of business currently unknown 26 to craigslist. 27 28 22. Does 2-25 are persons or entities responsible in whole or in part for the wrongdoing alleged herein ("Doe Defendants"). craigslist is informed and believes, and based 40753-0043/LEGAL15220321.2 -4FIRST AMENDED COMPLAINT CV 08-05060 SC 1 thereon, alleges that each of the Doe Defendants participated in, ratified, endorsed, or was 2 otherwise involved in the acts complained of, and that they have liability for such acts. craigslist 3 will amend this Complaint if and when the identities of such persons or entities and/or the scope 4 of their actions become known. 23. 5 6 in this Complaint as "Defendants." 7 8 Defendants Boris Group, LLC and the Doe Defendants are referred to collectively V. A. 9 FACTS GIVING RISE TO ALL CLAIMS FOR RELIEF CRAIGSLIST BACKGROUND 24. craigslist started in San Francisco, California, in 1995. It was originally an email 10 list by Craig Newmark about events in and around the San Francisco Bay Area for his friends and 11 acquaintances. However, it quickly gained in popularity and scope as a forum for free local 12 online classified ads and incorporated in 1999. 13 25. craigslist remains headquartered in San Francisco to date. It has twenty-five 14 employees, all in San Francisco, and the servers on which the craigslist websites operate are 15 located primarily in San Francisco. 16 26. Today, the craigslist website – www.craigslist.org – is world renown. It provides 17 free localized online classified ad services in over 500 cities in more than 50 countries, and is one 18 of the most visited websites in the world. In the United States, craigslist's website is visited more 19 than 10 billion times by more than 30 million users each month. 20 B. 21 22 23 CRAIGSLIST'S WEBSITE AND CLASSIFIED AD SERVICES 27. craigslist allows users to review or post online local classified advertisements for various categories of products and services on the craigslist website. 28. The website is organized first by geographic area, and then by category of product 24 or service within a geographic area. This organizational system ensures that craigslist remains a 25 localized service so buyers know they will find products and services available in their 26 communities. It also ensures that craigslist remains an efficient service so buyers' searches for 27 particular types of products and services are not littered with irrelevant postings. 28 40753-0043/LEGAL15220321.2 -5FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 29. The categories within each geographic area (for example, jobs, personals, housing, furniture, cars, clothes, and vehicles) are displayed on discrete webpages as lists of posted ads. 3 30. An ad appears in a category list identified by a descriptive title created by the user 4 who posted the ad. 5 31. When a new ad is posted, it is automatically placed at the top of the selected 6 category list in the chosen geographic area. Existing ads move progressively lower in the list as 7 new ads are posted at the top. 32. 8 9 This prioritization was implemented by craigslist as a simple method to achieve fair and efficient service to both buyers and sellers using craigslist. Every seller's ad receives 10 initial positioning at the top of its list, and buyers seeking a product or service within a category 11 see the most current ads first. 12 C. 13 CRAIGSLIST'S TOUs 33. craigslist's services and the craigslist website are governed by TOUs. The TOUs 14 are posted on the craigslist website, and users must affirmatively accept the TOUs to post ads on 15 craigslist and to create an account on craigslist. 16 34. The TOUs grant users a limited, revocable, nonexclusive license to access the 17 craigslist website and use craigslist's services. The license limits the authorized uses of the 18 website and services, and identifies types of uses that are not authorized. 19 35. 20 craigslist's license. 21 36. 22 The TOUs also set out penalties for particular violations of their terms and the At all times relevant, the TOUs have, without limitation, prohibited the following activities: 23 • Repeatedly posting the same or similar content; 24 • Posting the same item or service in more than one category; 25 • Posting the same item or service in more than one geographic area; 26 • Posting ads on behalf of others, causing ads to be posted on behalf of others, and accessing craigslist services to facilitate posting ads on behalf of others; 27 28 • Using a Posting Agent (a third-party agent, service, or intermediary that offers to post content to craigslist on behalf of others) to post ads; 40753-0043/LEGAL15220321.2 -6CV 08-05060 SC FIRST AMENDED COMPLAINT 1 • Attempting to gain unauthorized access to craigslist’s computer systems or engaging in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, craigslist's services or the craigslist website; • Using any automated device or computer program that enables postings without each posting being entered manually (an "automated posting device"), including, without limitation, the use of any automated posting device to submit postings in bulk; • Making available content that uses automated means (e.g., spiders, robots, crawlers, data mining tools, and the like) to download data from craigslist; and • Sending unsolicited email advertisements to craigslist email addresses or through craigslist computer systems. 2 3 4 5 6 7 8 9 10 37. The TOUs are attached to this Complaint as Exhibit A and incorporated into the Complaint as if fully set forth herein. 11 D. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 POSTING ADS ON CRAIGSLIST 38. At the outset, a visitor to the craigslist website must select the geographic area in which they wish to find or post an ad. 39. Upon clicking the selected geographic area option, the user is presented with a webpage specific to that geographic area. From that webpage, a user seeking to post an ad must click a link titled "post to classifieds." 40. The user then chooses the type of posting they want to place from a list presented by craigslist for that geographic area (for example, job offered, housing offered, housing wanted, for sale, item wanted, personal/romance, or community). A yellow highlighted notice at the top of this webpage reminds users, as stated in the TOUs, that "cross-posting to multiple cities or categories is not allowed." 41. After selecting the type of posting, the user is presented with a list of categories for posting ads in that geographic area (for example, categories under "for sale" ads include, without limitation, auto parts, bicycles, boats, collectibles, electronics, jewelry, musical instruments, and tools), and must select the appropriate category for his or her ad. 42. After selecting the appropriate category, the user specifies from a list the nearest location within the geographic area, but a notice at the top of this webpage also alerts the users 28 40753-0043/LEGAL15220321.2 -7FIRST AMENDED COMPLAINT CV 08-05060 SC 1 that "there is no need to cross-post to more than one area - doing so may get you flagged and/or 2 blocked - thanks!" 3 43. On the subsequent page, the user creates the title, price, description and other 4 details for the ad, and provides an email address for replies to the ad. (craigslist anonymizes the 5 email address when the ad is posted and relays replies to the user's genuine email address.) 44. 6 7 After verifying the content of the ad, the user is required to affirmatively accept craigslist's TOUs before the ad is posted. 8 45. If the user chooses to decline the TOUs, the ad is not posted. 9 46. If the user accepts the TOUs, the user receives a screen display that requires the 10 user to respond to a CAPTCHA challenge (explained below). If the CAPTCHA challenge is 11 successfully completed, an email is sent to the user's email address with links that allow the user 12 to finally post, edit or delete the ad. 13 14 47. users to create an account with craigslist. 15 16 48. 49. 18 their account. 19 E. 21 22 23 24 To create a craigslist account, a user must provide a valid email address and affirmatively accept craigslist's TOUs. 17 20 To help users manage ads for different products and services, craigslist enables Users with a craigslist account can post ads through an abbreviated process using CRAIGSLIST SECURITY MEASURES 50. craigslist employs a number of security measures to protect the craigslist website, the integrity and operation of craigslist's systems and services, and craigslist users. 51. One measure is the creation of temporary, anonymous email addresses for replies to ads posted by users. 52. craigslist assigns a unique craigslist email address, in the form of sale- 25 xxxxxxxx@craigslist.org, to each advertisement posted by a user. Emails sent to this craigslist 26 email address are automatically forwarded by craigslist to the user's personal email address 27 (provided when the user posts the ad or creates a craigslist account). 28 40753-0043/LEGAL15220321.2 -8FIRST AMENDED COMPLAINT CV 08-05060 SC 1 53. This system avoids publication of users' personal email addresses, but still allows 2 users to receive replies in their personal email accounts. It protects users' privacy and makes it 3 more difficult for spammers to obtain users' email addresses. 4 54. Another security measure employed by craigslist is the use of a verification 5 program commonly known as CAPTCHA ("Completely Automated Public Turing test to tell 6 Computers and Humans Apart"). CAPTCHA is designed to ensure that a human, not a machine, 7 completes a certain task. 8 9 10 55. craigslist uses a CAPTCHA to ensure that ads are posted manually (as required by the TOUs) and not by automated means. 56. When a user creates an account or posts an ad, the user is presented with a 11 webpage displaying a challenge-response test that appears in the form of a box containing 12 partially obscured characters that the user must type into a designated box – this is the 13 CAPTCHA. As shown in the example below, in craigslist's CAPTCHA, the characters of words 14 are obscured so a person can read them, but computer programs, bots and other automated 15 devices usually cannot. 16 17 18 19 20 21 57. If the CAPTCHA is not timely solved, the post or creation of an account on craigslist cannot be completed. 22 58. A further security measure employed by craigslist is telephone verification. 23 59. This measure is designed to prevent repetitious, unauthorized, unlawful and 24 abusive postings on craigslist by requiring a valid telephone number in order to post ads in certain 25 categories. 26 60. 27 When telephone verification is mandated, craigslist requires the user to enter a valid telephone number in a specified box on the craigslist website. craigslist then sends a 28 40753-0043/LEGAL15220321.2 -9FIRST AMENDED COMPLAINT CV 08-05060 SC 1 temporary passcode to that telephone number, and the user must enter the temporary password on 2 the craigslist website. Once a telephone number has been verified, it may be used to post ads to 3 craigslist. craigslist periodically requires re-verification of these accounts. 4 61. If the telephone number is not verified, the post cannot be completed. 5 62. craigslist also uses various technological tools to detect and remove ads that have 6 been abusively cross posted in multiple categories or multiple areas, or that are repetitively posted 7 to stay at or near the top of a chosen list or lists. 8 F. 9 CRAIGSLIST'S COPYRIGHTS 63. As noted at the outset, craigslist is committed to providing users with an easy-to- 10 understand, easy-to-navigate forum to post and locate ads in local communities. To that end, the 11 craigslist website provides uncluttered interfaces and displays for user input, searches and results. 12 64. craigslist's website is, by design, uniquely distinctive in its clarity, composition 13 and simplicity. Among the significant unique elements of the craigslist's website are the clear and 14 simple craigslist account registration and log in features, and the clear and simple post to 15 classified features. 16 65. The website is a badge of craigslist's promise to provide local online marketplace 17 communities that are predominantly free, friendly and easy to use. The simplicity and clarity of 18 the craigslist website are fundamental to craigslist's reputation and garner substantial and valuable 19 goodwill with users. 20 21 66. As an online venture, the intellectual property related to the craigslist website is a vital asset to craigslist. 22 67. craigslist's website is a work of authorship protected by copyright law. 23 68. craigslist owns all right, title and interest, including copyrights, in and to its 24 website, including, but not limited to, the post to classifieds, account registration and account log 25 in expressions and compilations. 26 69. The craigslist website displays copyright notices. 27 28 40753-0043/LEGAL15220321.2 -10FIRST AMENDED COMPLAINT CV 08-05060 SC 1 70. craigslist has registered copyrights in its website, including, but not limited to, the 2 post to classifieds, account registration and account log-in features of the website. These 3 registrations include: 4 Reg. No. Reg. Date Title 5 TX0006866660 September 19, 2008 Accounts.craigslist.org 2004. TX0006866658 September 19, 2008 Accounts.craigslist.org 2008. TX0006866657 September 19, 2008 Craigslist website 2006. TX0006866662 September 19, 2008 Post.craigslist.org 2004. TX0006866661 September 19, 2008 Post.craigslist.org 2008. 6 7 8 9 10 11 G. CRAIGSLIST'S TRADEMARKS 12 71. craigslist also carefully protects its trademarks. 13 72. craigslist owns common law rights in the CRAIGSLIST mark. 14 73. craigslist is also the owner of U.S. federal registrations nos. 2395628, 2905107, 15 2985065, and 3008562 for the CRAIGSLIST mark, covering, inter alia, "[a]dvertising and 16 information distribution services," "online interactive bulletin boards for transmission of 17 messages among computer users concerning classified listings," and "on-line computer data bases 18 and on-line searchable databases featuring information, classified listings and announcements." 19 craigslist has also registered the CRAIGSLIST mark in many other countries throughout the 20 world. 74. 21 22 CRAIGSLIST has been used in commerce by craigslist since 1995. craigslist's use has been substantially continuous and exclusive. 75. 23 craigslist has attained strong name recognition in the CRAIGSLIST mark. The 24 mark has come to be associated with craigslist and identifies craigslist as the source of 25 advertising, information, bulletin board and database services offered in connection with the 26 mark. 27 76. craigslist has also developed substantial goodwill in the CRAIGSLIST mark. 28 40753-0043/LEGAL15220321.2 -11FIRST AMENDED COMPLAINT CV 08-05060 SC 1 77. As noted previously, the craigslist website is one of the most visited websites in 2 the world, and, in the United States alone, the craigslist website is visited by more than 30 million 3 users each month. 4 78. 5 assets. 6 H. 7 craigslist considers the CRAIGSLIST mark among its most important and valuable ILLICIT POSTING SOFTWARE AND SERVICES 79. Illicit auto-posting software and services threaten craigslist's simple, fair and 8 efficient classified ad posting and listing system. Auto-posting software and services enable 9 craigslist users to repetitiously post duplicative ads within a category on craigslist to keep the ad 10 at or near the top of the category list. They also enable postings in multiple categories on 11 craigslist and in multiple geographic areas. 12 13 14 80. Auto-posting software and services load craigslist's classified ad services with hundreds or thousands, or more, ads that are redundant, miscategorized and/or mislocated. 81. Repetitious posting of an ad, posting an ad in multiple categories, and posting an 15 ad in more than one geographic area are all prohibited by the craigslist TOUs. The TOUs also 16 expressly prohibit the use of any automated posting devices, including, but not limited to 17 computer programs, that enable posting ads without manually entering each one. 18 82. Auto-posting disrupts craigslist's services by clogging craigslist categories with 19 numerous advertisements for the same products or services or ads for irrelevant products or 20 services. Auto-posting activities degrade craigslist user experiences and cause harm to 21 craigslist’s reputation as a fast, efficient, and fair platform for sellers to advertise and buyers to 22 locate local items and services. 23 83. For example, auto-posting impairs the efficiency and ease-of-use of craigslist 24 services for legitimate users by causing category lists to display duplicative ads that users are 25 forced to sift through to find legitimate ads. Ads that are repeatedly auto posted also inequitably 26 displace new ads legitimately placed at the top of a category list. Additionally, auto-posting ads 27 in multiple categories or multiple geographic areas subverts users’ expectations that they will find 28 40753-0043/LEGAL15220321.2 -12FIRST AMENDED COMPLAINT CV 08-05060 SC 1 only ads regarding particular products or services within a certain category and that they will find 2 only ads for local products or services within a given geographic area. 84. 3 Auto-posting imposes heavy burdens on craigslist's computer systems and 4 personnel. It creates heightened demands on craigslist's computers and systems, and causes 5 craigslist to expend time and resources and to incur additional costs in order to provide its users 6 with reliable, efficient service. But for craigslist’s efforts and expenditures to thwart auto-posting 7 and its impacts, auto-posting would cause craigslist’s computers and systems to operate 8 inefficiently, take longer to respond to legitimate users’ requests, and become overwhelmed and 9 potentially fail. 10 85. To continue to profit from their sale of unauthorized, unlawful auto-posting 11 software and services despite craigslist's effort to bar them, Defendants intentionally circumvent 12 technological security measures implemented by craigslist to stop auto-posting. They have 13 circumvented tracking systems, CAPTCHAs, and telephone verification, among others. Indeed, 14 whenever craigslist implements a new preventive measure, Defendants appear deterred only as 15 long as it takes them to devise furtive means to circumvent the new measure. 16 I. 17 DEFENDANTS' AUTO-POSTING SOFTWARE AND SERVICES 86. Defendants, operating www.adsoncraigs.com, sell "automated posting devices" as 18 defined in craigslist's TOUs. They sell computer software, entitled the "CL Auto Poster," and 19 other automated devices and related services that enable the submission of postings on craigslist 20 without each posting being entered manually, including, but not limited to, the automated 21 submission of postings in bulk that circumvent craigslist security measures, including, but not 22 limited to, CAPTCHAs and telephone verification. 23 87. Defendants' website at www.adsoncraigs.com advertises the "CL Auto Poster" as 24 "THE #1 BEST SELLING CRAIGSLIST AUTOPOSTER!" (Emphasis in original.) 25 Defendants advertise that the CL Auto Poster has the following features: 26 27 • Manage and post multiple ads in multiple categories with body and title randomization features. 28 40753-0043/LEGAL15220321.2 -13FIRST AMENDED COMPLAINT CV 08-05060 SC • 1 Craigslist account support - Post and delete with one or unlimited Craigslist Accounts! 2 3 • Optional post in all cities and categories 4 • Auto accept the terms of use 5 • Generate reports on what postings were posted when and failed postings with links to EDIT delete each POST! 6 • 7 8 9 10 11 12 88. Automatic CAPTCHA bypass available! Defendants charge customers $67.00 for the "CL Auto Poster Standard" and $99.00 for the "CL Auto Poster Professional." 89. Defendants also sell many Add-on features that were designed to circumvent craigslist's security measures. 90. Defendants sell a "Word-Verification CAPTCHA Bypass" for $99.00, which 13 circumvents CAPTCHA technology to allow the user to post ads without the need for the user to 14 respond to the CAPTCHA security challenge on the craigslist webpage. 15 16 17 18 19 91. Defendants sell an "Automatic Posting Scheduler" for $99.00, which automatically posts ads to craigslist at the intervals determined by the customer. 92. Defendants sell an "Automatic Repost Add-on" for $99.00, which determines if an ad has already been posted and automatically reposts it for the user. 93. Defendants sell an "Auto Re-Dialer Add-on" for $99.00, which automatically 20 redials customers' internet service providers to obtain new IP addresses and which thwarts 21 craigslist’s efforts to identify postings that originate from the same user. 22 94. Defendants sell a "CL Emailer" for $99.00, which automatically extracts email 23 addresses from craigslist and sends messages to those addresses. The use of an automated device 24 to scrape email addresses from craigslist violates craigslist's TOUs and is not authorized by 25 craigslist. The indiscriminate collection and use of email addresses regardless of whether the 26 users have indicated that it is not acceptable to contact them for any commercial purpose violates 27 craigslist's TOUs and is not authorized by craigslist. 28 40753-0043/LEGAL15220321.2 -14FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 3 95. In addition, Defendants sell "Craigslist Verified Accounts," which thwart craiglist's telephone verification. 96. Defendants tout that the "Craigslist Verified Accounts" they sell are: 4 • Verified and ready to use 5 • Guaranteed for use 6 • Created from different IP Addresses 7 • Created with different phone numbers 8 97. 9 accounts for $900. 10 98. Defendants sell 20 phone verified accounts for $300 and 100 phone verified On information and belief, Defendants accessed and copied the craigslist website 11 (including, but not limited to, creation of cached copies of the website) to develop, test, 12 implement, use and provide their "CL Auto Poster," and other auto-posting software, programs, 13 devices and services. 14 15 16 99. These acts of access and copying were unauthorized or in excess of authorized access to the craigslist website, services, computers and systems. 100. On information and belief, Defendants continue to access and copy the craigslist 17 website (including, but not limited to, creation of cached copies of the website) to operate, 18 maintain and update their auto-posting software, programs, devices and services. 19 20 21 101. These acts of access and copying were and are unauthorized or in excess of authorization to the craigslist website, services, computers and systems. 102. On information and belief, Defendants were required to affirmatively agree to and 22 accept, and did affirmatively agree to and accept, craigslist’s TOUs at one or more times when 23 they accessed the craigslist website and ad posting services. 24 103. On information and belief, each time Defendants affirmatively accepted and 25 agreed to abide by craigslist’s TOUs, Defendants intended to violate the TOUs and concealed 26 their intent to violate the TOUs from craigslist. 27 104. Defendants' actions are knowing, intentional, willful, malicious and fraudulent. 28 40753-0043/LEGAL15220321.2 -15FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 105. On information and belief, Defendants do not disclose to their customers that their services are unlawful and violate the craigslist TOUs. 106. 3 Defendants knowingly, willfully, intentionally, fraudulently and maliciously 4 induce, encourage and assist craigslist users to abuse craigslist systems and services and violate 5 the craigslist TOUs. 6 J. 7 DEFENDANTS' USE OF THE "CRAIGSLIST" MARK 107. Defendants without authorization have used the famous "CRAIGSLIST" mark in 8 commerce to advertise their unlawful software and services on the Internet in a manner likely to 9 confuse consumers as to their association, affiliation, endorsement or sponsorship with or by 10 11 craigslist. 108. Defendants' unauthorized use of the "CRAIGSLIST" mark includes, but is not 12 limited to, display of the mark in the text and in the headings of sponsored links on Internet 13 search engines. 14 15 16 109. For example, Defendants have used the CRAIGSLIST mark in the following sponsored link advertisement on the Google search engine. Craigslist Auto Poster 17 www.adsoncraigs.com The worlds Best Selling CraigsIist software. Works with new CAPTCHA! 18 110. Defendants' use of the CRAIGSLIST mark causes confusion and mistake and is 19 likely to deceive customers and potential customers regarding the origin, affiliation, association, 20 connection and/or endorsement of Defendants' auto-posting products and services, Defendants' 21 website, and/or Defendants with or by craigslist. 22 23 24 111. At no time has craigslist authorized or consented to Defendants' use of the CRAIGSLIST mark or any other craigslist intellectual property. 112. At no time has craigslist had any association, affiliation or connection with, or 25 endorsed Defendants' products or services, Defendants' website, or Defendants. Specifically, 26 Defendants' software and services are not authorized, approved, endorsed, or sponsored by, or 27 associated, affiliated, or connected with craigslist, and Defendants and their website are not 28 40753-0043/LEGAL15220321.2 -16FIRST AMENDED COMPLAINT CV 08-05060 SC 1 authorized, approved, endorsed, or sponsored by, or associated, affiliated, or connected with 2 craigslist. 113. 3 In using the CRAIGSLIST mark, Defendants have willfully and deliberately 4 sought to profit from craigslist's pre-established goodwill and reputation. 5 K. 6 CRAIGSLIST'S INJURIES 114. Defendants' actions and activities burden, interfere with and harm craigslist's 7 systems, services, and resources; burden, interfere with and harm the use of craigslist by 8 legitimate users; burden, interfere with and harm craigslist's relationship, reputation and goodwill 9 with legitimate users; and violate numerous provisions of the TOUs. 10 115. Defendants have caused craigslist to incur substantial costs to investigate, 11 remediate, prevent and combat Defendants’ auto-posting software, programs, devices and 12 services and Defendants' unauthorized access to and use of craigslist's systems and services, and 13 to investigate, remediate and prevent harm to craigslist's computer systems and services caused 14 by the Defendants. 15 116. For example, the increased load and burden on craigslist's servers, and the burden 16 on craigslist's personnel resources to develop counter measures, investigate incidents, remove 17 unauthorized ads, and address user complaints as a result of auto-posting, cost craigslist well in 18 excess of $5,000 per year. 19 117. Damages and losses incurred by craigslist include, without limitation, interference 20 with craigslist's load balancing; interference with proper and efficient service to legitimate users; 21 requiring craigslist to undertake extraordinary actions to monitor and enhance website 22 infrastructure; and significantly increasing costs of data storage, troubleshooting, customer 23 service, and system maintenance. 24 25 26 118. Furthermore, the harm to craigslist's relationships, reputation and goodwill with legitimate users is real and irreparable. 119. For example, users have blamed craigslist for interference with the fair and 27 efficient operation of craigslist services caused by illicit auto-posting, and have accused craigslist 28 of conspiring with parties responsible for auto-posting, like Defendants. Users who become 40753-0043/LEGAL15220321.2 -17FIRST AMENDED COMPLAINT CV 08-05060 SC 1 frustrated by auto-posting abuses on craigslist may stop using craigslist and never return. Such 2 injuries to craigslist cannot be compensated by monetary damages and are irreparable. 3 120. In a further effort to deter precisely the kind of activity in which Defendants are 4 engaged, the craigslist TOUs include a liquidated damages provision to compensate craigslist for 5 harm and injury from certain unauthorized and prohibited activities. 6 7 121. Defendants are liable to craigslist for, among other relief and remedies, the following amounts: 8 • $1,000 for each post or message that impersonated any person or entity, or falsely stated the affiliation of the sender with another person or entity; • $100 for each message posted in excess of limits established by craigslist or each day that craigslist is accessed after craigslist terminates access to or use of the service; and • $100 for each and every item posted by a posting agent. 9 10 11 12 13 Under the TOUs' liquidated damages provision, as a result of their violations, 122. craigslist is entitled to an injunction to stop Defendants' unlawful activities and the 14 irreparable harm they are causing craigslist. craigslist is also entitled to monetary damages, 15 including, but not limited to, liquidated damages, to compensate for the quantifiable harm and 16 injury Defendants have caused and continue to cause craigslist. 17 VI. 18 CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF COPYRIGHT INFRINGEMENT (DIRECT, VICARIOUS AND CONTRIBUTORY) 17 U.S.C. § 101, ET SEQ. 19 20 21 123. craigslist realleges and incorporates by reference all of the preceding paragraphs. 22 124. craigslist owns and has registered copyrights in its website and specific portions 23 thereof. 24 125. Defendants had and have access to craigslist's website. 25 126. Defendants have copied and/or created derivative works from craigslist's website 26 27 28 and/or portions thereof, and continue to do so. 127. Defendants' copies and/or derivative works are substantially similar to craigslist's original copyright-protected website. 40753-0043/LEGAL15220321.2 -18FIRST AMENDED COMPLAINT CV 08-05060 SC 1 128. The copies and/or derivative works created by Defendants are unauthorized. 2 129. At all times relevant, Defendants obtained a direct financial benefit from the 3 infringement and had the right and ability to control the infringing conduct, and/or intentionally 4 induced, encouraged, caused or materially contributed to the infringement. 5 130. The foregoing acts of Defendants constitute direct infringement, vicarious 6 infringement and/or contributory infringement of craigslist's exclusive rights in its copyrighted 7 works under 17 U.S.C. § 106. 8 9 10 131. Upon information and belief, Defendants' actions were and are intentional, willful, wanton and performed in disregard of craigslist's rights. 132. craigslist has been and will continue to be damaged, and Defendants have been 11 unjustly enriched, by Defendants' unlawful infringement of craigslist's copyrighted works in an 12 amount to be proven at trial. 13 133. Defendants' conduct also has caused irreparable and incalculable harm and injuries 14 to craigslist, and, unless enjoined, will cause further irreparable and incalculable injury, for which 15 craigslist has no adequate remedy at law. 16 134. craigslist is entitled to the relief provided by 17 U.S.C. §§ 502-505, including, but 17 not limited to, injunctive relief, an order for the impounding and destruction of all Defendants' 18 infringing copies and/or derivative works, compensatory damages (including, but not limited to 19 actual damages and/or Defendants' profits), statutory damages, punitive damages, and craigslist's 20 costs and attorneys' fees in amounts to be determined at trial. 21 22 SECOND CLAIM FOR RELIEF VIOLATION OF THE DIGITAL MILLENNIUM COPYRIGHT ACT ("DMCA") 17 U.S.C. § 1201, ET SEQ. 23 135. craigslist realleges and incorporates by reference all of the preceding paragraphs. 24 136. craigslist has registered copyrights in its website and specific portions thereof. 25 137. craigslist employs numerous technological measures, including, but not limited to, 26 identification of recurrent IP addresses, CAPTCHAs, and telephone verification systems, to 27 effectively protect and control access to and use of its copyrighted website and/or portions 28 thereof. 40753-0043/LEGAL15220321.2 -19FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 3 138. Defendants have circumvented and are circumventing technological measures that effectively control access to craigslist's copyrighted website and/or portions thereof. 139. On information and belief, Defendants manufacture, import, provide, offer to the 4 public, or otherwise traffic in technology, products, services, devices, components, or parts 5 thereof, that are primarily designed or produced for the purpose of circumventing technological 6 measures and/or protection afforded by technological measures that effectively control access to 7 craigslist's copyrighted website and/or portions thereof. 8 9 140. On information and belief, Defendants' technology, products, services, devices, components, or parts thereof have limited or no commercially significant purpose or use other 10 than to circumvent technological measures that effectively control access to the craigslist website 11 and/or portions thereof. 12 141. On information and belief, Defendants and/or others acting in concert with 13 Defendants market such technology, products, services, devices, components, or parts thereof 14 with Defendants' knowledge for use in circumventing technological measures that effectively 15 control access to the craigslist website and/or portions thereof. 16 17 18 142. craigslist has been and will continue to be damaged in an amount not presently known with certainty, but which will be proven at trial. 143. Defendants' conduct also has caused irreparable and incalculable harm and injuries 19 to craigslist, and, unless enjoined, will cause further irreparable and incalculable injury, for which 20 craigslist has no adequate remedy at law. 21 144. craigslist is entitled to the range of relief provided by 17 U.S.C. §§ 1201-1203, 22 including, but not limited to, injunctive relief, compensatory damages or statutory damages, 23 punitive damages, and craigslist's costs and attorneys' fees in amounts to be proven at trial. 24 25 THIRD CLAIM FOR RELIEF VIOLATION OF COMPUTER FRAUD AND ABUSE ACT 18 U.S.C. § 1030 26 27 145. craigslist realleges and incorporates by reference all of the preceding paragraphs. 28 40753-0043/LEGAL15220321.2 -20FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 3 146. craigslist's computers are involved in interstate and foreign commerce and communication, and are protected computers under 18 U.S.C. § 1030(e)(2). 147. On information and belief, Defendants intentionally accessed craigslist's 4 computers without authorization or in excess of authorized access, and through interstate or 5 foreign communication, obtained information from craigslist's computers in violation of the 6 Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030(a)(2)(C). 7 148. On information and belief, Defendants knowingly and with intent to defraud, 8 accessed craigslist's computers without authorization or in excess of authorized access, and 9 thereby furthered the intended fraud and obtained services of value (other than use of the 10 11 computers) in violation of the CFAA, 18 U.S.C. § 1030(a)(4). 149. On information and belief, Defendants intentionally accessed craigslist's 12 computers without authorization and caused and/or recklessly caused damage in violation of the 13 CFAA, 18 U.S.C. § 1030(a)(5)(A)(ii) and (iii). 14 150. Defendants' actions have caused loss to one or more persons, including, but not 15 limited to, craigslist, in a one year period aggregating at least $5,000 in value in accordance with 16 the CFAA, 18 U.S.C. § 1030(a)(5)(B)(i). 17 151. Defendants' conduct has also caused irreparable and incalculable harm and injuries 18 to craigslist, and, unless enjoined, will cause further irreparable and incalculable injury, for which 19 craigslist has no adequate remedy at law. 20 21 152. Under the CFAA, 18 U.S.C. § 1030(g), craigslist is entitled to injunctive relief, compensatory damages, and other equitable relief. 22 FOURTH CLAIM FOR RELIEF VIOLATION OF CAL. PEN. CODE § 502 23 24 153. craigslist realleges and incorporates by reference all of the preceding paragraphs. 25 154. craigslist is the owner or lessee of the computers, computer systems, computer 26 network, computer programs, and data that operate the craigslist website and services. 27 28 40753-0043/LEGAL15220321.2 -21FIRST AMENDED COMPLAINT CV 08-05060 SC 1 155. Defendants have knowingly accessed and without permission used craigslist data, 2 computers, computer systems and/or computer network in order to devise and/or execute a 3 scheme to defraud and deceive in violation of California Penal Code § 502(c)(1). 4 156. Defendants have knowingly accessed and without permission taken, copied, and/or 5 made use of data from craigslist computers, computer systems and/or computer network in 6 violation of California Penal Code § 502(c)(2). 7 8 9 157. Defendants have knowingly and without permission used or caused to be used craigslist's computer services in violation of California Penal Code § 502(c)(3). 158. Defendants have knowingly and without permission accessed and added data to 10 craigslist computers, computer systems and/or computer network in violation of California Penal 11 Code § 502(c)(4). 12 159. Defendants have knowingly and without permission disrupted or caused the 13 disruption of craigslist's computer services and/or have knowingly and without permission denied 14 or caused the denial of computer services to authorized users of craigslist's computers, computer 15 services and/or computer network in violation of California Penal Code §502(c)(5). 16 160. Defendants have knowingly and without permission provided or assisted in 17 providing a means of accessing craigslist computers, computer systems, and/or computer network 18 in violation of California Penal Code § 502(c)(6). 19 161. Defendants have knowingly and without permission accessed or caused to be 20 accessed craigslist computers, computer systems, and/or computer network in violation of 21 California Penal Code § 502(c)(7). 22 23 24 162. craigslist has suffered and continues to suffer damage as a result of Defendants' violations of the California Penal Code § 502 identified above. 163. Defendants' conduct also has caused irreparable and incalculable harm and injuries 25 to craigslist (including, but not limited to, craigslist's reputation and goodwill), and, unless 26 enjoined, will cause further irreparable and incalculable injury, for which craigslist has no 27 adequate remedy at law. 28 40753-0043/LEGAL15220321.2 -22FIRST AMENDED COMPLAINT CV 08-05060 SC 1 164. Defendants willfully violated California Penal Code § 502 in disregard and 2 derogation of craigslist's rights and the rights of legitimate craigslist users, and their actions as 3 alleged above were carried out with oppression, fraud and malice. 4 165. Pursuant to California Penal Code § 502(e), craigslist is entitled to injunctive 5 relief, compensatory damages, punitive or exemplary damages, attorneys’ fees, costs and other 6 equitable relief. 7 FIFTH CLAIM FOR RELIEF TRADEMARK INFRINGEMENT, 15 U.S.C. §§ 1114 AND 1125(a) 8 9 166. craigslist realleges and incorporates by reference all of the preceding paragraphs. 10 167. craigslist owns U.S. federal registrations nos. 2395628, 2905107, 2985065, and 11 3008562 for the CRAIGSLIST mark. These registrations are in full force and effect and are 12 enforceable. 13 168. At all times relevant, Defendants exercised ownership or control over sponsored 14 links and other online advertising for their products, services and website, and knowingly 15 cooperated in and/or induced, encouraged, enabled or aided the infringement of craigslist's 16 trademark rights in sponsored links and other online advertising for their products, services and 17 website. 18 169. Defendants' use of the CRAIGSLIST mark in interstate commerce is likely to 19 cause consumer confusion or to cause mistake or to deceive as to the origin of the products and 20 services offered and sold by Defendants and as to their affiliation, connection, or association with 21 and/or endorsement or approval by craigslist. 22 170. The foregoing acts of Defendants constitute false designation of association, 23 affiliation, connection, endorsement and/or approval under 15 U.S.C. § 1125(a), and/or vicarious 24 or contributory infringement of craigslist's rights under 15 U.S.C. § 1125(a). 25 171. Defendants' actions also constitute the use in interstate commerce of a 26 reproduction, counterfeit, copy, or colorable imitation of a registered trademark of craigslist in 27 connection with the sale, offering for sale, distribution, or advertising of goods or services on or 28 40753-0043/LEGAL15220321.2 -23FIRST AMENDED COMPLAINT CV 08-05060 SC 1 in connection with which such use is likely to cause confusion or mistake, or to deceive, in 2 violation of 15 U.S.C. § 1114. 172. 3 Upon information and belief, Defendants have engaged in such false designation 4 of origin, association, affiliation, connection, endorsement and/or approval knowingly, willfully, 5 deliberately, and in conscious disregard of craigslist's rights, making this an exceptional case 6 within the meaning of 15 U.S.C. § 1117. 7 8 173. craigslist has been damaged and will continue to be damaged, and Defendants have been unjustly enriched, by such unlawful conduct in an amount to be proven at trial. 9 174. In addition, Defendants' conduct described herein has caused and, if not enjoined 10 will continue to cause, irreparable damage to craigslist's rights in its marks, and to the business, 11 positive reputation and goodwill of craigslist, which cannot be adequately compensated solely by 12 monetary damages. craigslist therefore has no adequate remedy at law and seeks permanent 13 injunctive relief pursuant to 15 U.S.C. § 1116. 14 SIXTH CLAIM FOR RELIEF TRADEMARK INFRINGEMENT UNDER CALIFORNIA LAW 15 16 175. craigslist realleges and incorporates by reference all of the preceding paragraphs. 17 176. craigslist owns common law rights in the CRAIGSLIST mark that date back to 177. The acts and conduct of Defendants as alleged in the CLAIM FOR RELIEF 18 19 20 21 22 1995. immediately above constitute trademark infringement under the common law of California. 178. As a direct and proximate result of Defendants' conduct, craigslist has been damaged in an exact amount to be proven at trial. 23 SEVENTH CLAIM FOR RELIEF BREACH OF CONTRACT 24 25 179. craigslist realleges and incorporates by reference all of the preceding paragraphs. 26 180. Use of the craigslist website and use of craigslist services are governed by and 27 subject to the TOUs. 28 40753-0043/LEGAL15220321.2 -24FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 181. geographic region have provided links to the TOUs. 182. 3 4 183. 9 10 11 In addition, users are presented with the TOUs and must affirmatively accept the TOUs before they can post an ad without an account. 7 8 In addition, users are presented with the TOUs and must affirmatively accept the TOUs to register for a craigslist account to post ads. 5 6 At all relevant times, the main craigslist homepage and the homepage for each 184. On information and belief, Defendants affirmatively accepted and agreed to the 185. On information and belief, Defendants have repeatedly accessed and used TOUs. craigslist's website and services, and thereby accepted the TOUs. 186. On information and belief, Defendants affirmatively accepted the TOUs by 12 clicking the "ACCEPT the terms of use" option (not the "DECLINE the terms of use" option) 13 when they set up accounts on craigslist. 14 187. On information and belief, Defendants affirmatively accepted the TOUs by 15 clicking the "ACCEPT the terms of use" option (not the "DECLINE the terms of use" option) 16 when they posted ads on craigslist. 17 188. The TOUs are binding on Defendants. 18 189. Defendants' actions, as described above, have willfully, repeatedly and 19 20 21 22 23 24 25 systematically breached the TOUs. 190. craigslist has performed all conditions, covenants, and promises required of it in accordance with the TOUs. 191. Defendants' conduct has damaged craigslist, and caused and continues to cause irreparable and incalculable harm and injury to craigslist. 192. craigslist is entitled to injunctive relief, compensatory damages, liquidated damages under the TOUs, attorneys’ fees, costs and/or other equitable relief. 26 EIGHTH CLAIM FOR RELIEF INDUCING BREACH OF CONTRACT 27 28 193. craigslist realleges and incorporates by reference all of the preceding paragraphs. 40753-0043/LEGAL15220321.2 -25FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 3 4 194. craigslist's TOUs constitute a valid and existing contract between craigslist and craigslist users. 195. Defendants had knowledge of the TOUs and of the valid and existing contract between craigslist and craigslist users created by the TOUs. 5 196. Defendants intended to induce users to breach their contract with craigslist. 6 197. Users who were induced to utilize Defendants' products and services did in fact 7 breach the TOUs by acts, including, but not limited to: 8 • Repeatedly posting the same or similar content; 9 • Posting the same item or service in more than one category; 10 • Posting the same item or service in more than one geographic area; 11 • Gaining unauthorized access to craigslist’s computer systems; and 12 • Using "automated posting devices" to post to craigslist. 13 198. 14 15 16 17 18 19 These breaches of the TOUs were caused by Defendants' unjustified and wrongful conduct. 199. Defendants' conduct has damaged craigslist, and caused and continues to cause irreparable and incalculable harm and injury to craigslist. 200. craigslist is entitled to injunctive relief, compensatory damages, liquidated damages under the TOUs, attorneys’ fees, costs and/or other equitable relief. 201. craigslist is informed and believes that Defendants' conduct was undertaken with 20 the intent to injure craigslist, or with a willful and conscious disregard of craigslist's rights, and 21 constitutes clear and convincing evidence of oppression, fraud and malice under California Civil 22 Code § 3294. As a result, craigslist is entitled to an award of punitive damages against 23 Defendants in an amount sufficient to deter them from future misconduct. 24 25 NINTH CLAIM FOR RELIEF INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS 26 202. craigslist realleges and incorporates by reference all of the preceding paragraphs. 27 203. craigslist's TOUs constitute a valid and existing contract between craigslist and 28 craigslist users. 40753-0043/LEGAL15220321.2 -26FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 3 4 5 6 7 8 9 10 11 204. Defendants had knowledge of the TOUs and of the valid and existing contract between craigslist and craigslist users created by the TOUs. 205. Defendants committed intentional and unjustified acts designed to interfere with or disrupt the contract between craigslist and craigslist users. 206. Defendants caused actual interference with or disruption of relationships between craigslist and craigslist users. 207. Defendants' conduct has damaged craigslist, and caused and continues to cause irreparable and incalculable harm and injury to craigslist. 208. craigslist is entitled to injunctive relief, compensatory damages, liquidated damages under the TOUs, attorneys’ fees, costs and/or other equitable relief. 209. craigslist is informed and believes that Defendants' conduct was undertaken with 12 the intent to injure craigslist, or with a willful and conscious disregard for craigslist's rights, and 13 constitutes clear and convincing evidence of oppression, fraud and malice under California Civil 14 Code § 3294. As a result, craigslist is entitled to an award of punitive damages against 15 Defendants in an amount sufficient to deter them from future misconduct. 16 TENTH CLAIM FOR RELIEF FRAUD 17 18 210. craigslist alleges and incorporates by reference all of the preceding paragraphs. 19 211. On information and belief, Defendants have repeatedly accessed and used 20 craigslist's website and services, including, but not limited to, the post to classified, account 21 registration and account log in portions and services of the website, and, in doing so, represented 22 to craigslist that they would comply with the TOUs, and thus that they would not, among other 23 things, use automated devices, post duplicative ads, post ads in multiple categories or multiple 24 geographic areas, or otherwise abuse or interfere with the website or services. 25 212. On information and belief, Defendants affirmatively accepted the TOUs by 26 clicking the "ACCEPT the terms of use" option (not the "DECLINE the terms of use" option) 27 when they set up accounts on craigslist, and thereby expressly represented to craigslist that they 28 would comply with the TOUs, and thus that they would not, among other things, use automated 40753-0043/LEGAL15220321.2 -27FIRST AMENDED COMPLAINT CV 08-05060 SC 1 devices, post duplicative ads, post ads in multiple categories or multiple geographic areas, or 2 otherwise abuse or interfere with the website or services. 213. 3 On information and belief, Defendants affirmatively accepted the TOUs by 4 clicking the "ACCEPT the terms of use" option (not the "DECLINE the terms of use" option) 5 when they posted ads on craigslist, and thereby expressly represented to craigslist that they would 6 comply with the TOUs, and thus that they would not, among other things, use automated devices, 7 post duplicative ads, post ads in multiple categories or multiple geographic areas, or otherwise 8 abuse or interfere with the website or services. 9 214. craigslist reasonably relied on Defendants' representations to provide Defendants 10 with access to portions of the craigslist website and access to certain services offered on the 11 craigslist website. 12 215. Defendants' representations that they would comply with the TOUs were false. 13 216. Defendants have accessed and used the craigslist website and services, and, when 14 they accepted the TOUs, they intended to, and did, access and use the craigslist website and 15 services, in violation of the TOUs as described above. 16 217. On information and belief, when Defendants accepted the TOUs and accessed and 17 used craigslist's website and services, they concealed from craigslist their true intent to violate the 18 TOUs. 19 218. As a result of Defendants' fraudulent representations and omissions, Defendants 20 obtained information about the structure and operating features of craigslist's website and services 21 to enable them to design, test and operate their auto-posting software and services and related 22 devices. 23 24 25 26 27 28 219. Defendants' conduct has damaged craigslist, and caused and continues to cause irreparable and incalculable harm and injury to craigslist. 220. craigslist is entitled to injunctive relief, compensatory damages, liquidated damages under the TOUs, attorneys’ fees, costs and/or other equitable relief. 221. craigslist is informed and believes that Defendants' conduct was undertaken with the intent to injure craigslist, or with a willful and conscious disregard for craigslist's rights, and 40753-0043/LEGAL15220321.2 -28FIRST AMENDED COMPLAINT CV 08-05060 SC 1 constitutes clear and convincing evidence of oppression, fraud and malice under California Civil 2 Code § 3294. As a result, craigslist is entitled to an award of punitive damages against 3 Defendants in an amount sufficient to deter them from future misconduct. 4 VII. PRAYER FOR RELIEF 5 WHEREFORE, plaintiff craigslist, Inc. prays for the following relief: 6 1. A preliminary injunction and permanent injunction enjoining and restraining all 7 Defendants, their employees, representatives, agents, and all persons or entities acting in concert 8 with them during the pendency of this action and thereafter perpetually from: 9 (a) Manufacturing, developing, creating, adapting, modifying, exchanging, 10 offering, distributing, selling, providing, importing, trafficking in, or using any automated device 11 or computer program (including, but not limited to, any technology, product, service, device, 12 component, or part thereof) that enables postings on craigslist without each posting being entered 13 manually; 14 (b) Manufacturing, developing, creating, adapting, modifying, exchanging, 15 offering, distributing, selling, providing, importing, making available, trafficking in, or using 16 content that uses automated means (including, but not limited to, spiders, robots, crawlers, data 17 mining tools, and data scraping tools) to download or otherwise obtain data from craigslist; 18 (c) Engaging in any activity that disrupts, diminishes the quality of, interferes 19 with the performance of, or impairs the functionality of, craigslist's services or the craigslist 20 website; 21 (d) Copying, distributing, displaying, creating derivative works or otherwise 22 using protected elements of craigslist's copyrighted website (located at www.craigslist.org), 23 including, but not limited to, the website's post to classifieds, account registration and account log 24 in expressions and compilations, and from inducing, encouraging, causing or materially 25 contributing to any other person or entity doing the same; 26 27 (e) Circumventing technological measures that control access to craigslist's copyrighted website and/or portions thereof (including, but not limited to, CAPTCHAs, RE- 28 40753-0043/LEGAL15220321.2 -29FIRST AMENDED COMPLAINT CV 08-05060 SC 1 CAPTCHAs, and telephone verification systems), and from inducing, encouraging, causing or 2 materially contributing to any other person or entity doing the same; 3 (f) Manufacturing, developing, creating, adapting, modifying, exchanging, 4 offering, selling, distributing, providing, creating, importing, trafficking in, or using technology, 5 products, services, devices, components, or parts thereof, that are primarily designed or produced 6 for the purpose of circumventing technological measures and/or protection afforded by 7 technological measures that control access to craigslist's copyrighted website and/or portions 8 thereof, and from inducing, encouraging, causing or materially contributing to any other person or 9 entity doing the same; 10 (g) Accessing or attempting to access craigslist's computers, computer 11 systems, computer network, computer programs, and data, without authorization or in excess of 12 authorized access, including, but not limited to, creating accounts or posting content on the 13 craigslist website, and from inducing, encouraging, causing, materially contributing to, aiding or 14 abetting any other person or entity to do the same; 15 (h) Manufacturing, developing, creating, adapting, modifying, exchanging, 16 offering, selling, distributing, providing, importing, trafficking in, purchasing, acquiring, 17 transferring, marketing or using any program, device, or service designed to provide an 18 automated means of accessing craigslist’s website, automated means of creating craigslist 19 accounts, or automated means of posting ads or other content on the craigslist’s website, 20 including, but not limited to, any program, device, or service that is, in whole or in part, designed 21 to circumvent security measures on the craigslist website; 22 (i) Repeatedly posting the same or similar content on craigslist, posting the 23 same item or service in more than one category on craigslist, posting the same item or service in 24 more than one geographic area on craigslist, and from inducing, encouraging, causing, assisting, 25 aiding, abetting or contributing to any other person or entity doing the same. 26 27 (j) Posting ads on behalf of others, causing ads to be posted on behalf of others, and accessing craigslist to facilitate posting ads on behalf of others; 28 40753-0043/LEGAL15220321.2 -30FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 (k) or intermediary to post content to craigslist; (l) 3 4 Misusing or abusing craigslist, the craigslist website and craigslist services in any way, including, but not limited to, violating the craigslist TOUs; (m) 5 6 Using, offering, selling or otherwise providing a third-party agent, service, Accessing or using craigslist’s website for any commercial purpose whatsoever; and 7 (n) Using the CRAIGSLIST mark and any confusingly similar designations in 8 Internet advertisements and otherwise in commerce in any manner likely to confuse consumers as 9 to their association, affiliation, endorsement or sponsorship with or by craigslist. 10 2. An order requiring Defendants to account for, hold in constructive trust, pay over 11 to craigslist, and otherwise disgorge all profits derived by Defendants from their unlawful 12 conduct and unjust enrichment as permitted by law; 13 14 3. An award to craigslist of damages, including, but not limited to, liquidated, compensatory, statutory, and punitive damages, as permitted by law; 15 4. For an award of prejudgment and post-judgment interest; and 16 5. An award to craigslist of its costs of suit, including, but not limited to, reasonable 17 18 attorneys' fees, as permitted by law; 6. For such other relief as the Court deems just and proper. 19 20 DATED: September 29, 2009 PERKINS COIE LLP 21 By: /s/ Brian Hennessy Brian Hennessy (SBN 226721) BHennessy@perkinscoie.com Elizabeth L. McDougall (WA Bar No. 27026) EMcDougall@perkinscoie.com 22 23 24 Attorneys for Plaintiff craigslist, Inc. 25 26 27 28 40753-0043/LEGAL15220321.2 -31FIRST AMENDED COMPLAINT CV 08-05060 SC 1 2 3 DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial of all issues in the above-captioned action which are triable to a jury. 4 5 DATED: September 29, 2009 6 PERKINS COIE LLP By: /s/ Brian Hennessy Brian Hennessy (SBN 226721) BHennessy@perkinscoie.com Elizabeth L. McDougall (WA Bar No. 27026) EMcDougall@perkinscoie.com 7 8 9 Attorneys for Plaintiff craigslist, Inc. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40753-0043/LEGAL15220321.2 -32FIRST AMENDED COMPLAINT CV 08-05060 SC
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