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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1 2 3 4 5 LATHAM & WATKINS LLP Perry J. Viscounty (SBN 132143) 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 (415) 391-0600 / (415) 395-8095 Fax Attorneys for Plaintiff craigslist, Inc. 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 CRAIGSLIST, INC., a Delaware corporation, 13 Plaintiff, 14 15 16 v. Defendants. 18 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED: 19 1. 23 2. unlawful, and/or spam postings/email.” 3. craigslist’s Terms of Use further prohibit the collection of “users’ personal and/or contact information.” 26 27 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, 24 25 Plaintiff craigslist, Inc. (“craigslist”) owns and operates the website, the access to, and use of which, is governed by craigslist’s Terms of Use. 21 22 STIPULATED JUDGMENT AND PERMANENT INJUNCTION AGAINST INSTAMOTOR, INC. INSTAMOTOR, INC., a Delaware corporation, and DOES 1-10, 17 20 CASE NO. 3:17-cv-02449-MMC 4. 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. 28 61283266.2 US-DOCS\92663055.1 Case No. 3:17-cv-02449-MMC STIPULATED JUDGMENT AND PERMANENT INJUNCTION 1 2 5. § 7702(11). 3 4 6. 7. Defendant owns and operates the Instamotor service located at the website (the “Instamotor Website”). 7 8 craigslist’s website and computers are protected computers within the meaning of 15 U.S.C § 7702(13). 5 6 craigslist is a provider of Internet access service as defined in 15 U.S.C. 8. Defendant used automated means to access the craigslist website and scrape craigslist content, including postings, pictures, and craigslist users’ contact information. 9 9. Defendant also employed a team of individuals based in the Philippines (the 10 “Philippines Team”) to (1) access the craigslist website and copy craigslist content—including 11 postings, pictures, and craigslist users’ contact information; and (2) send emails to craigslist 12 users seeking to obtain additional information (e.g., the vehicle’s VIN, mileage, or license plate 13 number) without identifying that the senders were affiliated with Instamotor, which information 14 Instamotor then used to create unauthorized vehicle advertisements on the Instamotor Website. 15 16 10. Instamotor provided the Philippines Team with specific directions about the information that the Philippines Team should seek to obtain from craigslist users. 17 11. Defendant harvested craigslist users’ contact information from the craigslist 18 website and initiated many thousands of electronic mail messages to such users. The primary 19 purpose of these electronic mail messages was the commercial advertisement or promotion of 20 Instamotor’s commercial products or services (including content on an Internet website operated 21 for a commercial purpose). 22 12. Defendant initiated the transmission of commercial electronic messages that 23 failed to clearly and conspicuously identify that the messages were advertisements or 24 solicitations for Instamotor’s services, did not contain clear and conspicuous notice of the 25 opportunity to decline to receive further commercial electronic mail messages from the sender 26 (i.e., an unsubscribe button), and did not provide a physical postal address of the sender. 27 28 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 61283266.2 US-DOCS\92663055.1 2 Case No. 3:17-cv-02449-MMC STIPULATED JUDGMENT AND PERMANENT INJUNCTION 1 body of the messages. 2 14. Defendant sent these unlawful commercial electronic mail messages from what 3 appeared to be personal Gmail accounts. Defendants used, without authorization, craigslist’s 4 own email relay system to transmit their commercial electronic mail messages. 5 6 15. Defendant’s actions, as described above and more fully in craigslist’s Complaint (see Dkt. No. 1), constitute: 7 a. Breach of contract; 8 b. Violations of the CAN-SPAM Act, 15 U.S.C. §§ 7701 et seq.; and 9 c. Violations of California Restrictions on Unsolicited Commercial Email 10 11 Advertisers, Cal. Bus. & Prof. Code §§ 17529 et seq. I. 12 13 Final Judgment Judgment is entered in favor of craigslist against Defendant in the amount of $31,052,314, comprised of the following: 14 A. $25,674,300 for violations of the CAN-SPAM Act based on 85,581 emails at $100 15 per email, trebled pursuant to 15 U.S.C. § 7704(b)(1); and 16 B. $5,378,014 for breach of craigslist’s Terms of Use based on collecting personal 17 information ($1 for each email address and $1 for each phone number) from 18 2,689,007 listings. 19 II. 20 Injunction Defendant and its current and future officers, agents, servants, employees, attorneys and 21 other persons who are in active concert or participation with it or individuals within its control 22 (collectively, the “Prohibited Parties”), are ordered and enjoined as follows: 23 A. Within one day (1) day of the entry of this Order, the Prohibited Parties will 24 forever cease access to and/or any use of, including but not limited to 25 reproducing, transmitting, displaying, framing, including, disseminating, 26 publishing, distributing, selling, or giving away (“Access and Use”), any content, 27 including but not limited to user-generated postings, advertisements, 28 information, data, images, messages, or emails, that has been submitted to, 61283266.2 US-DOCS\92663055.1 3 Case No. 3:17-cv-02449-MMC STIPULATED JUDGMENT AND PERMANENT INJUNCTION 1 posted on, or transmitted via any craigslist website, service, or computer server, 2 including, but not limited to (“craigslist Content”). For the 3 avoidance of doubt, this prohibition includes, but is not limited to, craigslist 4 Content that a third party, including without limitation a third party located 5 outside U.S. jurisdiction, has obtained from (i) any craigslist website, service, or 6 computer server, or (ii) any other party, or series of parties, that itself or 7 themselves obtained craigslist Content from any craigslist website, service or 8 computer server. 9 B. The prohibition on Access and Use of craigslist Content includes: 1) direct 10 Access and Use by the Prohibited Parties; and 2) indirect Access and Use via a 11 third party, intermediary, or proxy, including but not limited to any search engine 12 or participant in crowd sourcing of craigslist Content. The prohibition covers all 13 Access and Use by the Prohibited Parties and provides no exceptions, including 14 but not limited to a claim of fair use or implied license. 15 C. 16 The Prohibited Parties are also permanently prohibited from: (1) sending or transmitting, or paying, directing, aiding, or conspiring with 17 others to send or transmit (i) any commercial electronic mail or electronic 18 communication to any craigslist email address, user, member or poster, 19 bearing any false, fraudulent, anonymous, inactive, deceptive, or invalid 20 return information, or otherwise using any other artifice, scheme or 21 method of transmission that would prevent the automatic return of 22 undeliverable electronic mail to its original and true point of origin or that 23 would cause the email return address to be that of anyone other than the 24 actual sender or by any other means in violation of the CAN-SPAM Act, 25 15 U.S.C. § 7701, et seq. or (ii) any commercial electronic mail message 26 to email addresses known to have been acquired or harvested from any 27 craigslist website; 28 61283266.2 US-DOCS\92663055.1 4 Case No. 3:17-cv-02449-MMC STIPULATED JUDGMENT AND PERMANENT INJUNCTION 1 (2) directly or indirectly downloading, harvesting, obtaining, or copying 2 craigslist Content by any means whatsoever, including but not limited to 3 robots, spiders, scrapers, or crawlers; 4 (3) directly or indirectly displaying, framing, including, disseminating, 5 publishing, distributing, selling, giving away, or otherwise presenting or 6 making available to any person or entity, or facilitating same, any 7 craigslist Content; 8 (4) 9 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 10 or services contain or include any craigslist Content; 11 (5) directly or indirectly circumventing technological measures that control 12 access to any craigslist website or any portions thereof, including but not 13 limited to, measures that: monitor and/or block activity associated with 14 particular IP addresses or provide a set of instructions to any automated 15 technologies visiting the craigslist website that prohibit automated 16 programs (e.g., a robots.txt file), whether through use of multiple IP 17 addresses or any other means; and 18 (6) engaging in the purchase, acquisition, collection, harvest, sale, transfer, 19 transmission, distribution, trade, or display of craigslist users’ postings, 20 names, locations, addresses, email addresses, phone numbers, contact 21 information, screen names or other user information, taken from any 22 craigslist website, service, or computer server, including, but not limited to 23, or lists thereof. 24 D. Within ten (10) days of the entry of this Order, the Prohibited Parties shall 25 permanently delete or destroy any craigslist Content, regardless of whether 26 obtained directly or indirectly, whether stored in electronic form or otherwise, in 27 their possession, custody, or control. 28 61283266.2 US-DOCS\92663055.1 5 Case No. 3:17-cv-02449-MMC STIPULATED JUDGMENT AND PERMANENT INJUNCTION 1 III. Monitoring Compliance 2 It is further ORDERED that the Prohibited Parties shall: 3 A. Take reasonable steps sufficient to monitor and ensure that all persons within their 4 control or past or present employment (whether as independent contractors, 5 employees, agents, partners or in some other capacity) comply with this Order, 6 including but not limited to providing a copy of this Order to any person within 7 their control or past or present employment and requesting that such person 8 adhere to its terms; and 9 B. Take all reasonable corrective action with respect to any individual within their 10 control or employment whom any Prohibited Party determines is not in 11 compliance with the terms of this Order, which may include training, disciplining, 12 and/or terminating such individual, and notifying craigslist promptly in writing of 13 the underlying conduct. 14 IV. Retention of Jurisdiction 15 It is further ORDERED that this Court shall retain jurisdiction of this matter in law and 16 equity for purposes of (1) enforcing and/or adjudicating claims of violations of this Order, with 17 any such dispute being raised by noticed motion; and (2) permitting craigslist to pursue its claims 18 against the Doe Defendants, including by conducting relevant discovery from current and former 19 Instamotor directors, officers, employees, investors, and/or other third parties. For the avoidance 20 of doubt, this Order resolves craigslist’s claims solely against Instamotor, and does not resolve 21 any potential claims against the Doe Defendants or former officers, agents, servants, employees, 22 or affiliates of Instamotor, Inc. 23 24 IT IS SO STIPULATED. Dated: August 17, 2017 25 LATHAM & WATKINS LLP By: Perry J. Viscounty 26 Attorneys for Plaintiff CRAIGSLIST, INC. 27 28 61283266.2 US-DOCS\92663055.1 6 Case No. 3:17-cv-02449-MMC STIPULATED JUDGMENT AND PERMANENT INJUNCTION 1 Dated: August 17, 2017 FOCAL PLLC By: 2 3 Attorneys for Defendant INSTAMOTOR, INC. 4 5 6 Venkat Balasubramani ORDER IT IS SO ORDERED. 7 8 Date: _____________ August 18, 2017 9 ________________________________ Hon. Maxine M. Chesney U.S. District Court Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 61283266.2 US-DOCS\92663055.1 7 Case No. 3:17-cv-02449-MMC STIPULATED JUDGMENT AND PERMANENT INJUNCTION

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