Notorious R.O.B.

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.

-rsh

If you care about legal issues, this is a must read post from Real Estate, Real Competition, and The Law. Chicago Lawyers’ Committee for Civil Rights Under the Law (CLC) sued Craigslist for violating the Fair Housing Act and got pretty much slapped around by the trial court. CLC appealed, and the Seventh Circuit heard the appeal.

The blogger, Michael Erdman, spent a great deal of time and energy reporting on the actual oral arguments. Having been to a court hearing or two myself, I know just how incredibly boring that can be. He deserves a great deal of thanks for the work he’s done here.  Seriously, read the whole thing.

This case is important not just for real estate, but for the internet industry as well.  If Craigslist is found guilty of violating FHA because its members posted ads that are, that creates all kinds of problems for all web-based advertising businesses, social networks, and the like.  At issue is whether a web-based message board has a duty to filter content — or at least attempt to filter content — to keep objectionable ads off its system.

Again, forcing companies like Craigslist and eBay to filter content proactively is going to have immense implications for companies like Facebook, MySpace, and others.  In real estate, such a rule would have enormous implications for FSBO sites, as well as non-FSBO listing sites in terms of proving some sort of an affirmative filtering mechanism.

In concluding, Mr. Erdman expects to see a unanimous affirmance of the trial court’s ruling to dismiss the case against Craigslist.  I hope so.

-rsh