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BC Court Rules Rogers' Zoocasa Real Estate Site Infringed Copyright, Breached Terms of Use

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Thursday September 08, 2011
The B.C. Supreme Court has issued a lengthy ruling against Rogers Communications and its real estate search site, Zoocasa. The case originates from Century 21's objections to Zoocasa's scraping of its real estate listings and incorporating them into its own site. Zoocasa scraped the full listings for several months starting in August 2008, but in November 2008 switched to "truncated" descriptions that provide only basic information. In August 2009, Zoocasa began "framing" other sites, but it stopped that practice in December 2009.  Zoocasa stopped indexing Century 21 listings in 2010.

The decision includes many important findings on online contracts, trespass, and copyright. The court canvasses the law of online contracts and concludes that website terms of use can be enforceable.  In this particular case, Century 21's terms prohibited copying or scraping its content. By doing so, Zoocasa breached the contract. The court awarded $1,000 in damages for the breach. Note that the court even finds that continuing to link to the Century 21 site (a practice prohibited by Century 21 once it provides notice) was a breach of the contract.

The court dismissed claims that the use of the Century 21 website in violation of the terms of use might constitute a form of electronic trespass.  Many years ago, U.S. courts considered the issue in a series of cases.  The court expressed doubt that "Canadian law supports the proposition that electronic access to a computer system is a physical act involving some degree of force" sufficient for a trespass finding, but was able to avoid a definitive finding because it also found that Century 21 did not have a possessory interest in the computer servers that were allegedly being trespassed.

The court also considered whether copying the listings infringed Century 21's copyright (and the copyright of the agents who took the photographs and wrote the descriptions). The court conducted a lengthy analysis and concluded:
  • copying the full length property descriptions for several months constituted copyright infringement
  • copying truncated, shorter descriptions did not (an example the court provides is "212-819 Hamilton St, Vancouver, B.C. V6Z 6M2 $285,000 - 1 Bed, 1 Bath - Great Newly Updated Jr 1 Bedroom at 819 Hamilton. This is a great West facing 1 bedroom suite which has lots of great. …")
  • copying photographs of properties constituted copyright infringement
The court then considered whether the use might qualify as fair dealing. It noted that commercial use (as in this case) is only one factor.  However, attempts to argue that the use of work was "transformative" failed as the court ruled that transformative use is not a category under fair dealing.

Having concluded the copying was not fair dealing (the court also says the amount of the dealing is not fair and that there were alternatives), the court considered the appropriate statutory damages for the infringements of the agents' copyright.  At first it arrived at the low end of the scale at $500 per infringement, but that would have led to a $64,000 award. The court ruled that that would be a disproportionate award and cut it in half to $250 per infringement or $32,000. The court also issued a permanent injunction prohibiting any further breaches of the terms of the Century 21 site and declined to find that Rogers authorized the copyright infringement merely by providing the idea, website and search engine for the Zoocasa site.

While this is a long case - 119 PDF pages - it is hard to think of a Canadian case that covers as many e-commerce and Internet issues. Given the sheer number of legal issues canvassed in the case, it will be interesting to see whether Century 21 or Rogers decide to appeal.
Comments (16)add comment

Jesse said:

...
But if an individual infringes on 24 songs, $5 million in damages. Or I guess we will see what the damages will be in Canadian courts.
September 08, 2011

Crockett said:

...
Yes, a $250 fine per COMMERCIAL infringement is I think reasonable. Million$ in non-commercial damages for a few songs is not.

It is heartening to see Canadian courts have some semblance of reasonableness.

Proportionality matters.
September 08, 2011

end user said:

...
So if the record/movie companies are scraping torrent/download sites for ip's addreses is that now considered infringment?
September 08, 2011

fdask said:

This could open the floodgates...
The practice of scraping a competitors site to seed your own is rampant in the industry. Everyone does it. Dating sites steal each others profiles and user pics, food sites steal each others recipes, even tech blog sites steal each others articles. As a developer, I've even been tasked with doing this myself several times over the years.

The issue in this case appears to be ownership of the content, which can be a gaping black hole of legality on the net. When I post a comment here, do I own it, or is it given to the site I post it too? Does my comment enter public domain allowing anyone to take it and use it as they wish? A quick Google search will reveal the homogenous nature of content on the web today, for better or worse.

Another point here is the misuse of resources. When you scrape someones website, you are utilizing their resources (bandwidth, cpu time). Poorly written scripts can even knock a smaller website offline as it is harvested. Cases of this sort have been tried in courts before and have held up. They are much more clear cut.

In any case, interesting decision, and I'm looking forward to seeing what, if any, impact this has on the scraping to seed practice.

October 02, 2011

RichardG said:

corporations vs individuals
I would like to consider the possibility of "Rogers Communications" being barred from internet access. There is talk in many countries of barring individuals from internet access for copyright violations. If individuals can be barred then corporations can be barred, it is only fair. Corporations should not have rights elevated above those of individuals.

In this case it would be clear that barring Rogers Communications from internet access would be very damaging to the company and third parties. In some cases barring individuals from the internet could be very damaging to their livelyhoods as well.

Corporations should not have rights elevated above individuals. So because corporations could not be barred from the internet, neither should individuals.
October 02, 2011

JohnS said:

...
This could get awkward, based on a website's TOS link that most people aren't aware of, or won't read anyway. In a court case they lost (SPORE), Electronic Arts was supposed to indicate for each software contained DRM, both on the packaging and on their website. You have to go through several links, scroll down a list (a lot of trouble) to locate the DRM statement on their website; and the link is in faint grey, small font size and easy to miss. Century 21's TOS link is found at the very bottom of the page; it is in an eight page PDF document that you have to download. Or if you're smart, given the PDF's vulnerability, you'll view online instead of downloading.

What's to stop me from putting a (hidden) TOS on my website that says anyone who visits owes me a $1.00 or $100.00?

October 02, 2011

Jason Kay said:

Terms of servitude
First, I can't believe Zoocasa thought they could get away with ripping content and using it for commercial gain. Their behaviour is in clear violation of copyright law and obviously not covered under fair dealing, so I think the court got that right.

However, I don't think Century 21's TOS ever should have come into play. TOS are unenforceable legal contrivances that take contract law into the realm of absurdity. It is absurd that by visiting a website one could implicitly agree to a contract which they have never seen and could never disagree to. It is unreasonable to expect visitors of a website to read the TOS which is concealed somewhere therein and written in one-sided legalese that no common person could understand. What part of having a link to a terms of service from a different page implies that the TOS would ever be read? Would you have your lawyer review the TOS of every website before you visit it? No you wouldn't; that would be insane. And that is why these 'agreements' are unenforceable: they are totally unfair and unrealistic. Site owners are completely within their right to block traffic they deem undesirable, and they should do so, they shouldn't be wasting the court's time.
October 02, 2011

Paul M said:

are screen scrapers, search engines and news aggregators stealing content?
I believe in many cases they are, and blogged about it a while ago. I have added a link to this article.

http://previouslysilent.blogspot.com/2011/05/are-search-engines-and-content.html
October 02, 2011

PeterA said:

Terms of service solution
So, why don't web browsers include headers that alter terms of service.

website owners can log these headers, and they are the equivalent of us talking to them (when we request a webpage we also send a couple headers like useragent indicating who we are). If in your header it says something like: "After reading your terms of service, I hearby inform you that I will enter an agreement with you that I will not honor any agreement reducing my ability to copy/read/store/reproduce (or whatever right you don't want stripped away) and retain the ownership of said material. If you do not agree with this, do not send me the content of any future web-pages.

If they send you the webpage, you gave them as much warning as hidden by a thousand click terms-of-service.

If the courts are going to listen to TOS's, they can listen to web-browser headers too. (both require the other party to "do" something to read, both are unreasonably onerous for each party to send to counsel to check over, and both are - to a reasonable person - completely ridiculous)
October 02, 2011

Byte said:

@PeterA
Sounds a bit like TOSAmend:
http://owocki.com/2011/09/02/t...reements/
October 02, 2011

Jeremy said:

What was Century 21's motivation?
Scraping content for search use is very useful to the public. Not many would want to go back to the days pre-google/bing/altavista.

In this case, what was Century 21's motivation for the lawsuit? As a search engine that specialized in real estate, would Zoocasa not be bringing more business to Century 21?

I could see MLS getting miffed about this, since Zoocasa was performing a similar service with a better experience without even charging real estate firms for it.

So, I'm really not understanding what the trouble is here.
October 03, 2011

theodore said:

a agree with PeterA
I will be adding an html header to firefox today.
October 03, 2011

karl said:

scraping or republishing
What was the real issue?

Scraping content or Republishing the scrapped content.
October 04, 2011

Rabid Platypus said:

JavaScript
It is a shame that your site is broken unless javascript is enabled. That's just bad design all around m8.
October 04, 2011

Mack Graham said:

Stratus Building Solutions
This Real Estate posting is very important article. It’s a helpful service for anybody.
Thanks
Mack
“Stratus Building Solutions”
October 07, 2011

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September 08, 2012

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