This is the first time I have seen EFF tap-dancing around issues that are important to its mission and I can't help but think that this arises from its relationship to Mr. Newmark.

Craigslist has recently engaged in a lawyer-driven campaign to ensure that no third party can use any of the data posted to its site:

1. Quite apart from the "exclusive license" language that it recently added (and has now dropped), it had recently amended its terms of use to make absolutely clear that no one has the right to use any data posted to its site, whether directly or indirectly, under any circumstances.

2. It sent cease-and-desist demands to various parties, including PadMapper, warning them not to use any such data but, as much as anything, making clear that it was revoking any implied license that the law might find to exist from CL's having allowed parties to scrape its data in the past (i.e., it was saying, in effect, no more loose community norms will apply but only the heavy hand of the law).

3. It also sued 3Tap for having set up a business that used CL data from the Google cache and offered it to third parties to enable them to have access to CL data without having to get it from the site directly. 3Tap contended that it could lawfully use the cached data without violating CL's terms of use or any copyright held by CL in any such data. CL strongly disagreed and set out its claims of infringement, etc. in a complaint filed in federal court just recently. The 3Tap business model may or may not have withstood this legal challenge but the salient fact here is that CL faced a lot of uncertainty on the legal issues involved, meaning that it might ultimately have lost on its claims and further meaning that 3Tap's business model would serve as a ready-made way for third parties to gain unfettered access to the CL data, at least until CL were able to obtain a preliminary injunction in the lawsuit or an ultimate victory on its claims. To do that, however, it would have needed to run the risk of potentially losing on its claims and thereby having helped create some pretty bad legal precedents for its business model.

4. That, to my thinking, is the only reason why CL would have taken the otherwise insane-looking step of changing its terms of use to demand that posters give it an exclusive license to all items posted to the CL site. That sort of license represents a bonehead decision from almost any angle one looks at it except one, and that is the legal angle of giving CL a strong position to claim that 3Tap can no longer use any of the data taken from the Google cache, whether or not 3Tap was deemed to have been bound by the CL terms of use. If CL had exclusive rights to enforce claims relating to the CL postings, then it could try to shut down 3Tap whether or not 3Tap was technically bound by the CL terms of use because it could do so from the copyright angle. In other words, the whole point of having tried to claim exclusive rights to the posts was to have a weapon against 3Tap to block it from having an avenue by which it could open up CL posts for use by potentially innumerable third parties via 3Tap - that is, to plug the final loophole in its legal system aimed at strict enforcement of the terms of use.

5. Any agreement, however, that amounts to a bare assignment of the right to sue on a copyright (with the assignor retaining effective ownership rights to everything else besides the right to sue) is of dubious enforceability, as copyright troll Righthaven found out to its dismay when it was upended by the combined efforts of Democratic Underground, Fenwick & West, and EFF - who convinced a judge to toss all its cases on the ground that such an assignment was ineffective and could not be used as a basis upon which to sue alleged infringers. Now the legal doctrines involved here can get complex and I have not had a chance to assess them carefully in the 3Tap/CL context. But I would wager that CL had lawyers telling it that, if the new terms amounted in practice only to a bare assignment of the right to sue on copyright (and what other reason is there for this?), there was still some potentially serious doubt on whether it would be able to prevail against 3Tap even though CL could now claim that it had the exclusive right to sue to enforce copyrights relating to CL posts.

6. This left CL with only one practical choice, which it took: remove its data from the Google cache or at least set it up so that third parties could not use such data. And that is precisely what it did, just a couple of days ago (see http://news.ycombinator.com/item?id=4351207 for an HN discussion on this event, with link to relevant article).

With the final step above, I assume that CL has effectively crippled the 3Tap business model. Therefore, it no longer needs to impose insane-looking licensing terms on persons wanting to post to its site and it has dropped those terms. It has simply found a more practical way to defeat the 3Tap model, rendering the oppressive licensing terms unnecessary.

The bottom line to what has happened here, in my view, is that CL is engaged in a heavy-handed, lawyer-driven campaign to guard its turf at all costs but doesn't really want to say this publicly for its own prudential reasons. This too is perhaps why EFF is being so diffident in this post, trying to celebrate the removal of obnoxious language from the CL terms of use without really giving convincing reasons for why that language found its way into the terms of use in the first place or why (short of CL being on a drunken toot) such language underwent a here-today-gone-tomorrow transformation for no apparent good reason over a very short period of time. I am only speculating here but it looks like EFF pulled a punch here.