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Canada The Courts The Internet News Your Rights Online

Canadian Court Finds Website Scraping Infringes Copyright 147

Posted by timothy from the didja-see-the-eula-punk dept.
First time accepted submitter wrecked writes "A trial judgment from British Columbia, Canada, found that Zoocasa, a real estate search site operated by Rogers Communications, breached copyright by scraping real estate listings and photos from Century 21 Canada. The decision thoroughly reviews the issues of website scraping, Terms of Use, 'Shrink Wrap' and 'Click Wrap' Agreements, robots.txt files, and copyright implications of hyperlinking. For American readers used to multi-million dollar damages, the court here awarded $1,000 (one thousand dollars) for breach of the Century 21 website's Terms of Use, and statutory copyright damages totalling $32,000 ($250 per infringing real estate photo). More analysis at Michael Geist's blog, and the Globe & Mail."
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Canadian Court Finds Website Scraping Infringes Copyright More

Canadian Court Finds Website Scraping Infringes Copyright

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  • Curious question, (Score:5, Interesting)

    by pecosdave ( 536896 ) * on Sunday October 02, 2011 @10:26AM (#37583426) Homepage Journal

    those crappy robot sites that like to take my comments on other web sites and message boards and repost them willie-nilly all over the place in hopes of attracting ad revenue- are those affected by this ruling?

    Not like I'm going to file in a Canadian court, but I do find it annoying to have comments showing up all over Google on garbage sites that only exist for a short time and that I've never heard of.

    • Re: (Score:2)

      by Kjella ( 173770 )

      Well that depends on the Terms of Service of the board where you posted them - both what rights you signed away and what rights others get - but I would imagine for most of these fly-by-night scraping sites yes. It'll probably be just as hard bringing those to court as spammers though, the chance you'll ever recover any time or money you spend pursuing them is very slim and the award likely the statutory minimum.

    • Sure only if you can afford those same high priced lawyers that Century 21 Canada can afford.

    • Here you go:

      http://xkcd.com/810/

  • first comment! (Score:3)

    by Almost-Retired ( 637760 ) on Sunday October 02, 2011 @10:32AM (#37583442) Homepage
    I wonder what they were smoking, thinking that was legal to do in the first place?

    I know if I was a R.E. agent & somebody scraped all the pictures and other work I had gone to in an attempt to sell a property that I was asked and contracted to sell, I would be yelling copyright violations in court. And if the property was sold, I would normally have a contract that said I got my commission if it was sold within the duration of my contact.

    They walk among us, and breed too!

    --
    Cheers, Gene.

    • "First" comment, in excess of five minutes late? I wonder what browser you're using..

      • Re:first comment! (Score:5, Funny)

        by Yvan256 ( 722131 ) on Sunday October 02, 2011 @10:52AM (#37583516) Homepage Journal

        He's probably using Firefox and it had to update to a new major version between each keystroke.

        • Re: (Score:2, Funny)

          by Anonymous Coward

          He's probably using Firefox and it had to update to a new major version between each keystroke.

          I'm torn between moderating this as Funny or as Insightful.

        • Re:first comment! (Score:4, Informative)

          by Almost-Retired ( 637760 ) on Sunday October 02, 2011 @11:26AM (#37583676) Homepage
          Yeah, well, I waste a lot more time being forced to do a preview before I can submit the post. It takes at least 5 seconds, and often 10+ seconds to get the damned preview back from /. For me, that is a PITA. When I am ready to post my drivel, even if complete with miss-spellings, I am ready.

          Oh, and yes, firefox-7.01

          • and often 10+ seconds to get the damned preview back from /.

            The ten-second delay is Slashdot port-scanning your IP address for common open proxies and waiting for connections to time out. You get it on a given IP only once every 24 hours. I've been told that if you set your firewall to refuse the connections instead of letting them timing out, the scan will run faster.

            • I wondered why, by the time I had posted 3 times, the response was much faster. thanks for that inofo.

              --
              Cheers, Gene

            • Hold on, so we are being punished by Slashdot for Slashdot updating to a shittier interface?

              Fucking ridiculous!

              • Re: (Score:2)

                by tepples ( 727027 )
                The allegedly "shittier interface" has nothing to do with this. The same delay for a port scan happens the first time you preview or post using the classic posting interface, which you can reach by middle-clicking "Reply to This" on Firefox.
      • No, but when I started that comment, it was first, but I often go back and change the wording a bit, so someone else could well have beat me to the actual first post. No biggie IMO, I was just surprised that I might be first.

        --
        Cheers, Gene

    • Re: (Score:2)

      by Nikker ( 749551 )
      Would you be also mad if I scraped your site and it resulted in the sale of your property? /devils advocate
      • The point is, I do not have a sales contract with you, so I am in no way obligated to pay you any commission, only the person/agency I have a contract with (and you don't do anything in R.E. w/o a contract) then the only commission to be paid is to that agency that I do have a contract with.

        Further point, why would you even want to expose yourself to a copyright violation when there is not a single farthing in it for you?

        Boggles my mind.

        So answer me this? What was in it for Rogers Comm. that made it appeti

        • Re: (Score:2)

          by rtb61 ( 674572 )

          They have access to the buyer. In some real estate sales market, if another real estate agent can come up with a buyer, the real estate agent with the contract will share the sales commission with the referring real estate agent. So the scraping was likely re-directing the potential purchases to a real estate agency other than contract real estate agency, resulting in many shared sales commissions.

          However in principle there is no real cheating going on, Century 21 was just being idiotically greedy. They

          • Re: (Score:2)

            by Altrag ( 195300 )

            We've already got an amalgamated real estate listing service [www.mls.ca] up here in Canada, which is sanctioned and used by basically all of the real estate agents.

            The only people Zoocasa would be benefiting are buyers who use that specific search site and don't bother going through an agent (who would be making recommendations from MLS).

            Whether this battle was worth C21's time and lawyer fees is up for debate, but they aren't standing to lose much from the lack of an unsanctioned rip of their data. Who knows, maybe t

            • Re: (Score:2)

              by rtb61 ( 674572 )

              You only list on the amalgamated service when you are ready to give up a piece of your commission and that service also costs money. From the agents point of view, especially the larger ones, they have already scammed the client into accepting a somewhat lower price than the property is worth making it an easier sale and they have a purchaser lined up. Sales agreement signed and the property sold that week, no advertising costs no shared commission.

              Now they have the internet, for them very cheap internal

    • If you were a real estate agent with a contract to sell a property, then having somebody scrape and repost your ad is just more free advertising for you.

      It's the photographer who should be mad, in the (unlikely) event he had plans to sell copies of those photos for their artistic value or something.

  • Century 21? (Score:5, Insightful)

    by M. Baranczak ( 726671 ) on Sunday October 02, 2011 @10:35AM (#37583460)

    They're a real estate broker. They make money when the property is sold; displaying ads is only a means to selling the property. Why do they object when people are copying and re-publishing their ads?

    • Century 21 usually has exclusive listing contracts, which means that no one else can sell the house for commission without getting sued out of their commission. I don't see the profit for the scraping company.

      • Century 21's (or anybody's) private contracts cannot obligate 3rd parties without their consent. If I wanted to sell a house that Century 21 has listed, for commission or not, there isn't a damned thing they can do about it... unless the contract is one of exclusivity, with the owner. In which case they could sue the OWNER, but not me. I still haven't done anything wrong or illegal.

    • Re: (Score:2)

      by amorsen ( 7485 )

      There is a similar situation in Denmark with the website Boliga [boliga.dk]. They attempt to list all properties which are for sale along with information about price changes and what the properties were sold for in the past (if that information is public). Real estate brokers and sellers are not particularly interested in buyers getting access to such information and so they are trying various things to block Boliga from providing that service. So far the competition authorities have forced the brokers to not block ac

    • Zoocasa is an aggregating site; they take listing information from a number of realtors and provide listings from all of them. The issue is that Zoocasa took too much information to be considered fair use.

      By linking directly to each listing users do not see the following;
      Century 21 home page and all the information/offers there.
      Other Century 21 listings that may be in a different order than what Zoocasa wants to display them.
      Zoocasa does not display all the information that Century 21 does which may cause a

      • Re: (Score:2)

        by Rysc ( 136391 ) *

        Too bad. I, as a buyer, don't care what Century21 wants. Services like Zoocasa provide value to me. If Century21 doesn't get metrics and I don't follow the process they prefer, tough cookies.

        • Zoocasa is still in business. They just can not pull the complete listing from Century21. Had they not been such idiots and come to an agreement with Century21 this issue would never have arisen.

          As a buyer you are interested in finding a listing in a certain area with certain criteria. Century21 is interested in creating those listings so you can buy them. If Century21 doesn't know you are looking they the don't know to try to get people to sell. You both lose.

          So you think it is fine that Zoocasa makes mill

          • Re: (Score:2)

            by Rysc ( 136391 ) *

            I simply don't care whether Zoocasa is operating legally or not, making money or not. I'm interested in results.

            Thought experiment: What if Zoocasa asked for permission to relist the listings and was denied. What if Century21 routinely denies all such requests? At that point I want someone to list them anyway, no matter the terms of use, because that's what's good for me. The free-market argument that by doing this eventually Century21 loses business is bogus because houses are not commodities. Exclusive co

    • They make money when the property is sold; displaying ads is only a means to selling the property.

      You're assuming brokers have exclusivity over each property they list. In some jurisdictions, this is a given, but in others, it's not. And I really don't know about Canada? Do you live in Canada?

  • Century 21? What is Gerry Anderson doing selling properties in Australia?

  • Cut off internet access for"Rogers Communications" (Score:4, Informative)

    by RichMan ( 8097 ) on Sunday October 02, 2011 @11:25AM (#37583672)

    Why not treat them like and end user and shut off internet access for the "user".

    I would like to see "Rogers Communications", the runner of the site lose access to the internet.

    Some how I don't think the court would do that to one of the top ISP's in Canada.
    Yet we are likely to see the courts cut off internet access for small end users. Why are the laws not equal? Corporation got people status, but it seems corporations are way above people status when it comes to some laws. That is not fair. And if it would be unfair to cut off access for a corporation then it should be unfair to cut off access for a person.

    • I agree with this sentiment. A weeks internet black hole for Rogers Comm. would send a message their greedy board members will never forget.

      --
      Cheers, Gene

  • Good to know. (Score:3)

    by isilrion ( 814117 ) on Sunday October 02, 2011 @01:18PM (#37584224)

    Last time I was looking for a place to rent, I felt tempted to do something like this. There are several rental websites out there, and you are lucky if their listing overlap... Comparing locations, prices, what was being offered, etc, was a pain. Some sites would at least let you right-click and open in a new tab, but others wouldn't. The maps, sometimes they were google's, sometimes they were bing, and they would never let you overlay the public transit lines on top... And instead of letting you chose a location and radius on the map, some would ask you for the postal code!

    So, I toyed with the idea of scraping those sites and build my own database, and build a website from it for others like me (probably sticking some google ads to try to pay for the hosting). I guess it is a good thing I didn't. And it is a shame to know that I can't (and no one else can either). I don't like Rogers and part of me is smiling about this ruling... but if this means that there will be no "google news"-like service for rent hunting, this is another case of copyright preventing useful services from coming to life.

    • You can do something like that. You just have to comply with the Robot Exclusion Standard so that a site that does not want you to index them can make that call. You also can not copy and save too much of each listing.

      • Actually, you probably don't have to follow the standard, or anything even close. At least in the US.

        First off, in US law it has (finally) become pretty clear that not obeying TOS is not, in itself, a crime. Ever-higher courts have ruled on that issue and Congress has a pending bill spelling that out in plain English.

        Second, again in the US, tabular data cannot be copyrighted. A recent case involving phone books pretty much nailed the lid on that one. Real estate listings are nothing if not "tabular d

        • Re:Good to know. (Score:4, Informative)

          by jklovanc ( 1603149 ) on Monday October 03, 2011 @04:45AM (#37588036)

          The copyright issue was not about the facts about the listing; address, floor space, bedrooms, etc. There were two components that were copyrightable; the pictures and the description. Here are some reveant clauses from the decision.

          [185] The property descriptions describe particular real properties. They are created to market the property to potential buyers. It is apparent they are written for each property in a manner to highlight the positive aspects of the properties. There is also the evidence of Bilash and Walton that there is some level of skill involved in writing an effective property description. I am satisfied that the property descriptions are the product of skill and judgment. As a result they meet the threshold for copyright protection.

          [204] The continued copying of the entire property description to the Zoocasa server is a violation of copyright. The truncated versions of the property description in my view do not infringe copyright as they do not meet the criteria for substantial copying sufficient for copyright infringement.

          [205] With respect to the photographs, Zoocasa was not merely copying a thumbnail image as in the case of Kelly v. Arriba Soft Corporation, 336 F. 3d 811 (USCA, 9th Circuit, 2003), but rather the entire photograph. This was a clear violation of copyright.

          • That is true; descriptive text probably cannot be characterized as "tabular data". But the rest can: address, basic home style and information about it (square feet, bathrooms, etc.), price, and so on.

        • First off, in US law it has (finally) become pretty clear that not obeying TOS is not, in itself, a crime. Ever-higher courts have ruled on that issue and Congress has a pending bill spelling that out in plain English..

          Sorry but you missed the point. The bill just means the someone can not be arrested and charged by the state with a crime that will go on their criminal record. They still can be sued in civil court for damages, breach of contract, etc. It becomes a civil matter rather than a criminal matter.

          • No, YOU missed MY point. Just as I stated the first time, and I will repeat: in the U.S., a violation of TOS was already a civil matter, not a crime. And a pretty darned minor civil matter, at that. Generally the "penalties" are no more than the cost of the service over the disputed period.

            What was unclear to you about that?

            My second point was that if you copy only tabular data, not the verbatim description or pictures -- again, in the U.S. -- it isn't even a civil matter. It is perfectly legal. You c

            • You need to take a look at the Computer Fraud and Abuse Act (CFAA). A violation of this act is a criminal matter. There have been a number of criminal cases brought by the government for TOS violations. Take a look at this article. http://econsultancy.com/us/blog/6189-can-terms-of-service-turn-you-into-a-criminal [econsultancy.com]. How about this article http://www.onthemedia.org/blogs/on-the-media/2011/sep/28/senate-advocates-terms-of-use-reform-computer-fraud/ [onthemedia.org]. Note this quote
              "Late last week, the Senate Judiciary Committee

              • Obviously you aren't familiar with the many recent court cases that have consistently ruled that violations of TOS are not criminal.

                I have confused nothing. YOU have confused the act of taking someone to court, with the violation of criminal statutes.

                As I stated earlier, what the new statute does is make it explicit, rather than leave it up to the courts, that violation of TOS is not criminal, which will avoid many malicious prosecutions. But just as I stated previously: while people have been taken t
              • Further, my statements about TOS had absolutely nothing to do with the CFAA. That is a straw-man argument, and a pretty silly one at that.

                You have confused prosecutorial abuses of the law with what the courts have already decided the law actually is. As *I* stated before you did, the pending legislation merely makes what the courts have already decided explicit, which should avoid further such prosecutorial abuses..

        • First off, in US law it has (finally) become pretty clear that not obeying TOS is not, in itself, a crime. Ever-higher courts have ruled on that issue and Congress has a pending bill spelling that out in plain English.

          I never said violation of TOS was a crime but breach of contract is an actionable item in civil court even in the US. If you break the TOS in the US you can be sued for breach of contract in the US. Here is the relevant citation concerning Brows Wrap Agreements.

          "[93] In Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (Dist. Court S.D.N.Y. 2000), aff’d 356 F.3d 393 (2d Cir. N.Y. 2004), Register.com’s website contained their Terms of Use which stated that if the user accessed the database then the user agreed to the terms. The defendant submitted that simply making a query of the database was insufficient to indicate their consent. Register.com involved commercial parties where the defendant Verio accessed the plaintiff’s computers daily and saw the Terms of Use each time they did so and admitted that they were aware of the terms. Verio conceded that its use of the data for solicitations by mail and telemarketing breached Register.com’s Terms of Use. Registrar.com notified Verio that they were in breach of Register.com’s Terms of Use. Verio argued that it was not bound because the notice was provided after the transaction occurred, not before. The United States Court of Appeals for the Second Circuit found that this argument would only succeed if Verio accessed Register.com’s computers infrequently. The court held that Verio had notice of the terms because of its numerous daily queries and the presence of the Terms of Use after each query."

          Notice that is an American case. Zoocasa was frequently accessing Century21 data and had been advised of the TOS. The court ruled there was a binding contract and Zoocasa breached that contract. A similar decision based on the same precedent would pr

      • "... within the law..." Sheesh. Typos.

        But this also needs to be stated: contrary to the title of this thread, scraping per se was not found to be the illegal act here anyway: reproducing someone else's site was.
    • How would that be any different than what Google or any other search provider does? They scrape a website and retain all the data and return it in a variety of ways. As long as robots.txt doesn't reject your crawler.

      • Because, for a site like I mentioned to be useful, it would have to display lots of information about the listings, not merely point to the original website with an excerpt of the content. Think a "comparison" website. I don't know about you, but I think that displaying the information side by side is much more useful than going back and forth between different tabs, specially if the formatting of those tabs is different. But that would fall completely in the "scrap and display the factual data with a new f

      • As long as robots.txt doesn't reject your crawler.

        There is the crux of the situation. Zoocasa would not give Century21 the information that could put into their robots.txt file to stop the scraping.

    • Some sites would at least let you right-click and open in a new tab, but others wouldn't.

      Why right click when ctrl + left click does the job just fine? (that's in Firefox at least). And FF also allows you to switch off suppression of the right-click menu. Though it's of course irritating behaviour of those sites.

    • Replying twice but totally different comment :)

      Interesting how markets differ. In Hong Kong I've never used web sites to find homes for rent: we just went to an area, walked around the shopping malls, and asked the agents directly on what's available. They always post numerous offers on the window giving you a good idea on what's available in the area and what prices you have to think of. And usually they can show you some flats right away, just walking around the area.

      My current home we found through a s

  • " the court here awarded $1,000 (one thousand dollars) for breach of the Century 21 website's Terms of Use"

    We need an "Internet Terms of Use". "Anything on the internet that was meant to be accessible by the public is automatically public domain.

    • Re: (Score:2)

      by amorsen ( 7485 )

      We need an "Internet Terms of Use". "Anything on the internet that was meant to be accessible by the public is automatically public domain.

      Are you sure that is what you want? It would mean that you could not apply the GPL to downloadable software.

      I'm an advocate of abolishing copyright so I'm all in favour of course.

      • Re: (Score:2)

        by Bengie ( 1121981 )

        Nah, I didn't really think it through, but it sounds nice to me :P

        I bet it would be more good than bad.

    • Re: (Score:2)

      by bk2204 ( 310841 )

      Anything on the internet that was meant to be accessible by the public is automatically public domain.

      Uh, I don't think that's a good idea. It means that all downloadable software would be in the public domain. It would effectively prevent anyone from putting any sort of creative work online (written, photographic, etc.). The same goes for documentation, news stories, comics, useful web apps, etc. It would probably result in a much more closed web where everybody had to sign up to every site in order to just access it.

    • If anyone was copying your website 1:1, that is assuming you are competent enough to have one, and just replaced your name with his, you would be up screaming "he stole my website".

      Copying a little from many makes a doctoral thesis or a fiction book, copying from one without attribution, is plagiarism.

      Also, the robots.txt is an established means to indicate that you do not want your content to be copied completely.

      Weakening the status of the robots.txt is stupid, exactly because it allows publishers who are

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