A Ruling on the Craiglist Case

Work has been absolutely crushing the past couple of weeks, and blogging has been light out of necessity.  Hopefully, I can get back on schedule next week.

But I did want to briefly note that the Seventh Circuit Court of Appeals issued its ruling (PDF) affirming the lower court’s decision in Craigslist v. Chicago Lawyers Committee (H/T: Inman News).  It seems like a sweeping victory for Craigslist to me, and good news generally for the RE.net community.

Trulia, Zillow, and others can relax a bit.  Seems to me that under this ruling, even a brokerage network may be safe from liability for discriminatory ads/descriptions entered by an independent contractor (aka, the agent).

I wonder, however, what to make of this dictum:

To appreciate the limited role of §230(c)(1), remember that “information content providers” may be liable for contributory infringement if their system is designed to help people steal music or other material in copyright. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913(2005); In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003). Grokster is incompatible with treating §230(c)(1) as a grant of comprehensive immunity from civil liability for content provided by a third party. (Emphasis mine)

Arguably, the court ruled in favor of Craigslist partly because Craigslist provides next to nothing to the advertiser. It’s basically just a big message board.

If you provide additional tools to the agent — such as a way to edit listings, or manipulate photos, or automated feed uploads — does that take you over the line into contributory infringement? One could make the argument that such a rich system is “designed to help people” infringe the Fair Housing Act, couldn’t one? Providing detailed maps, data on crime, etc. could theoretically be construed as providing a “system designed to help” those who want to redline and steer consumers.

That creates a perverse incentive for the online listings aggregators: provide more tools, face more liability.

I know, it seems like weak tea, but it did make me wonder. Maybe the real solution isn’t in the courts, but in the legislature. Time to update the Fair Housing Act to conform to the 21st century reality.


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Rob Hahn

Managing Partner of 7DS Associates, and the grand poobah of this here blog. Once called "a revolutionary in a really nice suit", people often wonder what I do for a living because I have the temerity to not talk about my clients and my work for clients. Suffice to say that I do strategy work for some of the largest organizations and companies in real estate, as well as some of the smallest startups and agent teams, but usually only on projects that interest me with big implications for reforming this wonderful, crazy, lovable yet frustrating real estate industry of ours.

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