The B.C. Supreme Court released a decision last week in Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196 involving allegations that Zoocasa improperly scraped content from Century 21’s online real estate listings. In a lengthy decision, the court dismissed the claim for trespass to chattels, granted nominal damages for breach of the website’s terms of use and awarded statutory damages in favour of the individual plaintiffs for copyright infringement.

Contract – Terms of Use

After canvasing the law on shrinkwrap, clipwrap and browsewrap licenses, the court held that browsewrap agreements can be valid enforceable contracts and the terms of use for Century 21’s website were breached by the defendant in this case scraping content from the website contrary to the terms:

[108]      Browse wrap agreements have the advantage of being readily available for perusal by the user. Their enforcement requires a clear opportunity for the user to read them which, given the nature of computer and the Internet, is likely to be a better opportunity than that available to the user of a product with a standard form contract presented at the time of purchase.  A properly enforceable browse wrap agreement will give the user the opportunity to read it before deeming the consumer’s use of the website as acceptance of the Terms of Use.  In the case at bar, notice is not an issue given the defendant has acknowledged it was aware of the Terms of Use and what conduct was deemed to be acceptance.  In addition, the defendant Zoocasa relies on similar Terms of Use on its own Website.  The defendants have also acknowledged that the Century 21 Website Terms of Use are industry standard.
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[116]      In my opinion, a publicly available website does not necessarily give a right of access free of any contractual terms. Depending on the circumstances, a contract may be formed.
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[119]      Taking the service with sufficient notice of the Terms of Use and knowledge that the taking of the service is deemed agreement constitutes acceptance sufficient to form a contract. The act of browsing past the initial page of the website or searching the site is conduct indicating agreement with the Terms of Use if those terms are provided with sufficient notice, are available for review prior to acceptance, and clearly state that proceeding further is acceptance of the terms.
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[141]      I find that Century 21’s Terms of Use constitute a binding contract between the parties, that Zoocasa had actual knowledge of the Terms of Use and in continuing its actions after notice of those Terms of Use, Zoocasa breached those terms. (emphasis added)

Since the plaintiffs showed they suffered but not damages of any substantial character, only nominal damages were awarded in addition to an injunction.

Copyright

The Court canvased the ownership and chain of title in the property descriptions and photographs that had been downloaded. The Court determined that only the individual agents held copyright in the listings, not the corporate parties due to the contractual arrangements between the plaintiffs and dismissed the copyright claims by Century 21.

The personal claims of copyright infringement were granted. Substantial portions of the works were reproduced and none of the ‘fair dealing’ defences applied although the court did consider the interaction between ‘fair dealing’ and the robot exclusion standard (‘robots.txt’ file).

The court found that $500 per photograph and description to be “grossly out of proportion to the infringements” so awarded $250 per work, or $32,000 total.

Trespass against chattels

The court dismissed this claim on the basis that Century 21 had no possessory interest in the servers hosting its website. Only Century 21’s hosting service had such an interest and they were not a party to the action.

[299]      The chattels in question are the servers of WTL or its third party suppliers.  Century 21 under its agreement with WTL has no possessory interest in those servers.  As a result, an essential element of the tort of trespass to chattels is not present.  Any potential claim for trespass to chattels would be that of WTL.  They are not a party to this action.  Century 21’s claim respecting trespass to chattels is dismissed.

The decision is available at Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196.