“Scraping” occurs when a business pulls commercial content from the websites of other businesses using web crawlers or other technologies, and then uses that commercial content for its own commercial purposes.
On April 6, 2017, a decision was rendered in Canada in the case of Trader Corporation v. CarGurus. Trader and CarGurus are competitors in the digital marketplace for new and used vehicles in Canada. CarGurus “scraped” car dealership websites for photos of cars for sale. Of the 197,740 photos that were obtained and used by CarGurus, Trader was able to prove that 152,532 of the photos had been taken by photographers paid by Trader. CarGurus argued that, as the images were located on the car dealership servers and not on CarGurus server, CarGurus had not reproduced the photos but had merely “framed” them. The Court found that CarGurus had made the photos available to the public for commercial purposes and rejected the suggestion that the photos had not been “reproduced” and rejected any “fair dealing” defence.
CarGurus then argued that it was entitled to the benefit of section 41.27 of the Canadian Copyright Act, which is intended to protect search engines such as GOOGLE and which reads:
Injunctive relief only — providers of information location tools
41.27 (1) In any proceedings for infringement of copyright, the owner of the copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of an information location tool that is found to have infringed copyright by making a reproduction of the work or other subject-matter or by communicating that reproduction to the public by telecommunication.
Conditions for application
(2) Subsection (1) applies only if the provider, in respect of the work or other subject-matter,
(a) makes and caches, or does any act similar to caching, the reproduction in an automated manner for the purpose of providing the information location tool;
(b) communicates that reproduction to the public by telecommunication for the purpose of providing the information that has been located by the information location tool;
(c) does not modify the reproduction, other than for technical reasons;
(d) complies with any conditions relating to the making or caching, or doing of any act similar to caching, of reproductions of the work or other subject-matter, or to the communication of the reproductions to the public by telecommunication, that were specified in a manner consistent with industry practice by whoever made the work or other subject-matter available through the Internet or another digital network and that lend themselves to automated reading and execution; and
(e) does not interfere with the use of technology that is lawful and consistent with industry practice in order to obtain data on the use of the work or other subject-matter.
Meaning of information location tool
(5) In this section, information location tool means any tool that makes it possible to locate information that is available through the Internet or another digital network.
The Court rejected this defense. The Court found that the section did not afford protection to providers, like CarGurus, that gathered information on the internet and made it available to the public on the provider’s own website. CarGurus was not acting as merely a search engine.
Having won the case, Traders sought “statutory damages”, the provisions of which read:
38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally,
(a) in a sum of not less than $500 and not more than $20,000 that the court considers just, with respect to all infringements involved in the proceedings for each work or other subject-matter, if the infringements are for commercial purposes.
If just the statutory minimum damages were granted, these damages would have amounted to $500.00 per photo x 152,532 photos owned by Trader for a total of $76,266,000.00.
However, the Judge felt that an award of $76,266,000 would be grossly out of proportion to the severity of the infringement and modified the award as a special case to $2 per photo x 152,532 photos owned by Trader for a total of $305,064. In making this determination, the Judge applied section 38.1(3) of the Copyright Act, which reads:
(3) In awarding statutory damages under paragraph (1)(a) or subsection (2), the court may award, with respect to each work or other subject-matter, a lower amount than $500 or $200, as the case may be, that the court considers just, if
(i) there is more than one work or other subject-matter in a single medium, or
(ii) the award relates only to one or more infringements under subsection 27(2.3); and
(b) the awarding of even the minimum amount referred to in that paragraph or that subsection would result in a total award that, in the court’s opinion, is grossly out of proportion to the infringement.
The factors that the Court considered in deciding to treat this matter as a “special case” were the fact the CarGurus had not acted in bad faith and had, in fact, obtained a legal opinion that the conduct was permissible before engaging in the activity. Unfortunately for CarGurus, the legal opinion was wrong because the lawyer involved incorrectly assumed that the photos belonged to the dealerships. Further, the Court felt that there was some bad faith on the part of Trader. Although the parties had corresponded in an attempt to settle the dispute prior to litigation, Trader intentionally did not disclose the critical fact that Trader owned the photos until after litigation was commenced.
These cases will provide some guidance to those whose business model involves “scraping” content from the websites of others.