craigslist, Inc. v. Instamotor Inc.

Filing 28

STIPULATED JUDGMENT AND PERMANENT INJUNCTION AGAINST INSTAMOTOR, INC. Instamotor Inc. terminated. Signed by Judge Maxine M. Chesney on 08/18/17. (mmclc2, COURT STAFF) (Filed on 8/18/2017)

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LATHAM & WATKINS LLP
Perry J. Viscounty (SBN 132143)
[e-mail]
505 Montgomery Street, Suite 2000
San Francisco, CA 94111
[phone] / [phone] Fax
Attorneys for Plaintiff
craigslist, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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CRAIGSLIST, INC., a Delaware corporation,

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Plaintiff,

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v.

Defendants.

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED:

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1.

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2.

unlawful, and/or spam postings/email.”
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craigslist’s Terms of Use further prohibit the collection of “users’ personal and/or

contact information.”

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craigslist’s Terms of Use prohibit, among other things, the use of “[r]obots,

spiders, scripts, scrapers, crawlers” and the transmission of any “misleading, unsolicited,

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Plaintiff craigslist, Inc. (“craigslist”) owns and operates the craigslist.org website,

the access to, and use of which, is governed by craigslist’s Terms of Use.

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STIPULATED JUDGMENT AND
PERMANENT INJUNCTION AGAINST
INSTAMOTOR, INC.

INSTAMOTOR, INC., a Delaware
corporation, and DOES 1-10,

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CASE NO. 3:17-cv-02449-MMC

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craigslist’s Terms of Use are valid and enforceable against Defendant Instamotor,

Inc. (“Defendant”) and Defendant accepted and agreed to be bound by those terms.

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5.
§ 7702(11).

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6.

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Defendant owns and operates the Instamotor service located at the

instamotor.com website (the “Instamotor Website”).

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craigslist’s website and computers are protected computers within the meaning of

15 U.S.C § 7702(13).

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craigslist is a provider of Internet access service as defined in 15 U.S.C.

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Defendant used automated means to access the craigslist website and scrape

craigslist content, including postings, pictures, and craigslist users’ contact information.

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Defendant also employed a team of individuals based in the Philippines (the

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“Philippines Team”) to (1) access the craigslist website and copy craigslist content—including

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postings, pictures, and craigslist users’ contact information; and (2) send emails to craigslist

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users seeking to obtain additional information (e.g., the vehicle’s VIN, mileage, or license plate

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number) without identifying that the senders were affiliated with Instamotor, which information

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Instamotor then used to create unauthorized vehicle advertisements on the Instamotor Website.

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10.

Instamotor provided the Philippines Team with specific directions about the

information that the Philippines Team should seek to obtain from craigslist users.

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11.

Defendant harvested craigslist users’ contact information from the craigslist

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website and initiated many thousands of electronic mail messages to such users. The primary

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purpose of these electronic mail messages was the commercial advertisement or promotion of

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Instamotor’s commercial products or services (including content on an Internet website operated

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for a commercial purpose).

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12.

Defendant initiated the transmission of commercial electronic messages that

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failed to clearly and conspicuously identify that the messages were advertisements or

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solicitations for Instamotor’s services, did not contain clear and conspicuous notice of the

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opportunity to decline to receive further commercial electronic mail messages from the sender

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(i.e., an unsubscribe button), and did not provide a physical postal address of the sender.

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13.

Defendant initiated the transmission of commercial electronic mail messages that

contained false and misleading (i) header information, (ii) subject lines, and (iii) content in the
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body of the messages.

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Defendant sent these unlawful commercial electronic mail messages from what

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appeared to be personal Gmail accounts. Defendants used, without authorization, craigslist’s

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own email relay system to transmit their commercial electronic mail messages.

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15.

Defendant’s actions, as described above and more fully in craigslist’s Complaint

(see Dkt. No. 1), constitute:

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a. Breach of contract;

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b. Violations of the CAN-SPAM Act, 15 U.S.C. §§ 7701 et seq.; and

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c. Violations of California Restrictions on Unsolicited Commercial Email

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Advertisers, Cal. Bus. & Prof. Code §§ 17529 et seq.
I.

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Final Judgment
Judgment is entered in favor of craigslist against Defendant in the amount of

$31,052,314, comprised of the following:

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A. $25,674,300 for violations of the CAN-SPAM Act based on 85,581 emails at $100

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per email, trebled pursuant to 15 U.S.C. § 7704(b)(1); and

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B. $5,378,014 for breach of craigslist’s Terms of Use based on collecting personal

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information ($1 for each email address and $1 for each phone number) from

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2,689,007 listings.

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II.

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Injunction
Defendant and its current and future officers, agents, servants, employees, attorneys and

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other persons who are in active concert or participation with it or individuals within its control

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(collectively, the “Prohibited Parties”), are ordered and enjoined as follows:

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A.

Within one day (1) day of the entry of this Order, the Prohibited Parties will

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forever cease access to and/or any use of, including but not limited to

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reproducing, transmitting, displaying, framing, including, disseminating,

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publishing, distributing, selling, or giving away (“Access and Use”), any content,

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including but not limited to user-generated postings, advertisements,

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information, data, images, messages, or emails, that has been submitted to,
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posted on, or transmitted via any craigslist website, service, or computer server,

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including, but not limited to craigslist.org (“craigslist Content”). For the

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avoidance of doubt, this prohibition includes, but is not limited to, craigslist

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Content that a third party, including without limitation a third party located

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outside U.S. jurisdiction, has obtained from (i) any craigslist website, service, or

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computer server, or (ii) any other party, or series of parties, that itself or

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themselves obtained craigslist Content from any craigslist website, service or

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computer server.

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B.

The prohibition on Access and Use of craigslist Content includes: 1) direct

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Access and Use by the Prohibited Parties; and 2) indirect Access and Use via a

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third party, intermediary, or proxy, including but not limited to any search engine

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or participant in crowd sourcing of craigslist Content. The prohibition covers all

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Access and Use by the Prohibited Parties and provides no exceptions, including

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but not limited to a claim of fair use or implied license.

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C.

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The Prohibited Parties are also permanently prohibited from:
(1)

sending or transmitting, or paying, directing, aiding, or conspiring with

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others to send or transmit (i) any commercial electronic mail or electronic

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communication to any craigslist email address, user, member or poster,

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bearing any false, fraudulent, anonymous, inactive, deceptive, or invalid

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return information, or otherwise using any other artifice, scheme or

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method of transmission that would prevent the automatic return of

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undeliverable electronic mail to its original and true point of origin or that

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would cause the email return address to be that of anyone other than the

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actual sender or by any other means in violation of the CAN-SPAM Act,

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15 U.S.C. § 7701, et seq. or (ii) any commercial electronic mail message

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to email addresses known to have been acquired or harvested from any

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craigslist website;

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(2)

directly or indirectly downloading, harvesting, obtaining, or copying

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craigslist Content by any means whatsoever, including but not limited to

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robots, spiders, scrapers, or crawlers;

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(3)

directly or indirectly displaying, framing, including, disseminating,

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publishing, distributing, selling, giving away, or otherwise presenting or

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making available to any person or entity, or facilitating same, any

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craigslist Content;

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(4)

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representing, on their websites, in their mobile apps, or otherwise, that
they are in any way affiliated with craigslist, or that any of their products

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or services contain or include any craigslist Content;

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(5)

directly or indirectly circumventing technological measures that control

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access to any craigslist website or any portions thereof, including but not

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limited to, measures that: monitor and/or block activity associated with

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particular IP addresses or provide a set of instructions to any automated

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technologies visiting the craigslist website that prohibit automated

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programs (e.g., a robots.txt file), whether through use of multiple IP

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addresses or any other means; and

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(6)

engaging in the purchase, acquisition, collection, harvest, sale, transfer,

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transmission, distribution, trade, or display of craigslist users’ postings,

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names, locations, addresses, email addresses, phone numbers, contact

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information, screen names or other user information, taken from any

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craigslist website, service, or computer server, including, but not limited to

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craigslist.org, or lists thereof.

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D.

Within ten (10) days of the entry of this Order, the Prohibited Parties shall

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permanently delete or destroy any craigslist Content, regardless of whether

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obtained directly or indirectly, whether stored in electronic form or otherwise, in

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their possession, custody, or control.

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III.

Monitoring Compliance

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It is further ORDERED that the Prohibited Parties shall:

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A.

Take reasonable steps sufficient to monitor and ensure that all persons within their

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control or past or present employment (whether as independent contractors,

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employees, agents, partners or in some other capacity) comply with this Order,

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including but not limited to providing a copy of this Order to any person within

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their control or past or present employment and requesting that such person

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adhere to its terms; and

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B.

Take all reasonable corrective action with respect to any individual within their

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control or employment whom any Prohibited Party determines is not in

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compliance with the terms of this Order, which may include training, disciplining,

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and/or terminating such individual, and notifying craigslist promptly in writing of

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the underlying conduct.

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IV.

Retention of Jurisdiction

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It is further ORDERED that this Court shall retain jurisdiction of this matter in law and

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equity for purposes of (1) enforcing and/or adjudicating claims of violations of this Order, with

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any such dispute being raised by noticed motion; and (2) permitting craigslist to pursue its claims

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against the Doe Defendants, including by conducting relevant discovery from current and former

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Instamotor directors, officers, employees, investors, and/or other third parties. For the avoidance

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of doubt, this Order resolves craigslist’s claims solely against Instamotor, and does not resolve

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any potential claims against the Doe Defendants or former officers, agents, servants, employees,

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or affiliates of Instamotor, Inc.

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IT IS SO STIPULATED.
Dated: August 17, 2017

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LATHAM & WATKINS LLP
By:
Perry J. Viscounty

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Attorneys for Plaintiff
CRAIGSLIST, INC.

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Dated: August 17, 2017

FOCAL PLLC
By:

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Attorneys for Defendant
INSTAMOTOR, INC.

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Venkat Balasubramani

ORDER
IT IS SO ORDERED.

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Date: _____________
August 18, 2017

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________________________________
Hon. Maxine M. Chesney
U.S. District Court Judge

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