The US District Court for the Northern District of California handed down a decision earlier this week that makes me scratch my head a little. The free classified ad service Craigslist brought the case against 3 defendants and alleged among other things that the three violated Craigslist copyright. How? The defendants scraped real estate listings originally posted on Craigslist and aggregated the information on their sites. The court dismissed part of the copyright claim, but how it got there was the head scratching part. The defendants asked the court to dismiss the copyright claim on several grounds. The first, and for me perhaps the most obvious reason, was that information is not copyrightable. There has to be some minimal degree of creativity. So, if I compile a list of Reds batting averages I can’t copyright it. It’s just information. The compilation of information on Craigslist, it would seem, falls into the same category. Right? Apparently not. For the California court, the fact that Craigslist organized the ads by geographic area and them by a product or service category was enough to satisfy the minimal creativity requirement. But that didn’t end the inquiry. Craigslist had to overcome the hurdle posed by the fact that it didn’t actually create the content. Users of the Craigslist site submit the ads. And since copyright protects the creator of the content, that was an issue here. Craigslist kind of overcame the problem. It pointed to its Terms of Use, which granted Craigslist an all-encompassing license in the submitted content. But as comprehensively drafted as they appeared, the TOU never said that users gave Craigslist an exclusive license in the content. And absent that provision, Craigslist could do pretty much anything it wanted with the content except sue for its unauthorized use. Craigslist salvaged a little of its copyright claim by pointing to a statement that it issued to users who posted classifieds during the period from July 16, 2012 through August 8, 2012. That statement advised users that by submitting content, they were “confirming” that Craigslist acquired and exclusive license to all ads submitted. But apparently due to some bad PR, Craigslist stopped that practice. As a result, the court found that Craigslist could assert a copyright claim only for ads submitted during that 3 week window. It dismissed the copyright claims related to ads posted before or after. So what to make of this? If you run a site that uses third party content, better look at your TOU and make sure those terms match your expectations. If you are an aggregator, don’t assume that content that looks for all the world like non-copyrightable information lacks all degree of creativity. Minimal apparently really means minimal.