July 20, 2012
Browse wrap agreements rely on the notion that, where an offer is made subject to certain conditions and a person takes the benefit of the offer with knowledge of the conditions, the taking can itself be an acceptance of the terms of the contract.
However, the court held that the mere involvement of a computer does not allow the individual who programs the computer to escape liability for the actions it carries out on that individual’s behalf.
The court next turned its attention to the question of copyright infringement. Here, Zoocasa advanced a fair dealing defence, arguing that its actions constituted “research,” one of the enumerated exceptions to infringement under the Copyright Act. In particular, Zoocasa argued that “research” includes “the action or instance of searching carefully for a specified thing or person” and argued that “commercial research by a consumer qualifies as research.”
After consideration of the fair dealing factors, the court found that Zoocasa’s copying of basic information, such as property addresses and legal descriptions, was not copyright infringement. However, the copying of original property descriptions created by real estate agents and their employees, and moreover “the repeated daily access and indexing of such information” exceeded what could be considered fair dealing. Zoocasa was ordered to pay nominal damages for breach of contract, and additional statutory damages for breach of copyright in the sum of $32,000.
Despite the outcome of this case, website owners, search engine providers, and web surfers in general would be well-served to note that at least some questions of sufficient notice, and acceptance, remain unresolved. In particular, it remains an open question whether a generic indexing robot – one that merely stumbles across a website in the context of an untargeted search – could bind its owner to the terms of a browse wrap agreement. Prudence dictates that website owners continue providing separate written notice as soon as they are made aware of possible violations.
Paul Horbal, B.A.Sc., M.Sc. (Elec. Eng.), J.D., is an associate lawyer with Bereskin & Parr LLP's Electrical & Computer Technology practice group. He can be reached in Toronto at 416.957.1664 or firstname.lastname@example.org.
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