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May 12, 2009



I'm not sure this case answers too many questions. On the one hand, it has a lot of dicta about what is and is not an intended beneficiary (like saying that your "only recourse" is to leave and by providing an abuse email box that can be ignored at any time.

On a broader level, though, the clause at issue here had no clear third party effects for other posters. If the rule was "don't spam other advertisers" and those other advertisers were getting spammed, then the analysis in this case might have been different.

Thus, I think the jury is still out.


I certainly agree that the fighting question is whether the court's language construing the "no-spam" rule as being about Craigslist's infrastructure only, and thus not about third parties, leaves open the possibility that rules which protect third parties might be actionable.

But I think this shows something else, too: courts are not likely to read intention into a EULA promise absent a whole lot more. The "no-spam" rule clearly impacted third parties--enough for them to sue. The court chose not to take that rule as an intention to convey enforceable rights on the third parties.

So while I do agree that there remains wiggle room, I think the precedent is a solid one for saying that TOU promises which clearly bear on the usefulness of the system to third parties (here, the ability of competitors to post ads) will not be construed as conveying enforceable contract rights to third parties.

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