In Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196 the BCSC heard allegations by Century 21 that Roger’s subsidiary Zoocasa improperly scraped content from Century 21′s online real estate listings. The Judge:

1. held that the Terms of Use was enforceable and was breached;

2. awarded statutory damages for copyright infringement for the individual plaintiffs, and

3. dismissed the claim for trespass against chattels on the basis that only Century 21’s hosting service had possessory interest in the servers hosting its website and they were not a party to the action.

1. Terms of Use: Enforceable & Breached:

After reviewing the enforceability of shrinkwrap, clipwrap and browsewrap agreements, the court held that browsewrap agreements can be valid enforceable contracts as they are readily available to the user. For Zoocasa, notice was not an issue as the defendant acknowledged that it was aware of the Terms of Use and what conduct was deemed to be acceptance and in fact relied on similar Terms of Use on its own website and acknowledged that the Terms of Use are industry standard. Consequently the Court held that the terms of use for Century 21′s website were enforceable and breached by the defendant in this case by scraping content from the website contrary to the terms: “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.” The Judge awarded only nominal damages and an injunction because the plaintiffs did not prove their damages.

2. Copyright:

The Court granted personal claims of copyright but dismissed the copyright claims by Century 21 because only the individual agents held copyright in the listing. The Judge held that none of the ‘fair dealing’ defences applied. The Judge awarded $ 250 per work or $ 32,000 total.

This case provides guidance to lawyers writing terms of use for web sites.