Century 21 wins Zoocasa lawsuit

Front Page Sep 14, 2011


Don Lawby (Photo by Jennifer Gauthier)
By Melanie Epp

Century 21 Canada president and CEO Don Lawby says he is pleased with a court’s decision regarding the lawsuit the company filed against real estate aggregate site Zoocasa.com in December 2008.

In its claim, Century 21 accused Zoocasa, a subsidiary of Rogers Communications, of breach of contract leading to copyright infringement for collecting and reproducing data from its website without consent. Century 21 was granted a permanent injunction against Zoocasa.com, further preventing it from posting data from the site, but received a damages award of just $1,000.

The Supreme Court of British Columbia judgment says Century 21 asserted that the Terms of Use displayed on its site constituted a binding contract between the website’s owners and its users. The defendants claimed that the terms were not displayed prominently enough and that Zoocasa, therefore, was not bound by the contract. Interestingly, Zoocasa.com uses an almost identical Terms of Use on its site.

“The court enforced the online terms that appear on our website,” says Lawby, “And the court found that they were taking data without our permission and so ruled against it.”

While Century 21’s claim for copyright infringement was dismissed, since it can only enforce licencing, not copyright, claims by two of its agents were deemed valid. Property descriptions and photographs were found to be “the product of skill and judgment” and therefore entitled to protection by copyright.

“The court upheld the copyrights for the agents – and we were really doing it to protect the agents,” says Lawby. “It is their content and it is copyrighted content, so the court recognized that.”

For breach of copyright, sales rep Charles Bilash was awarded $30,750. Sales rep Michael Walton was awarded $1,250.

“We weren’t going looking for a whole lot of money,” says Lawby, “We were looking for principle – that’s what it was all about.”

The judgment says that Rogers Communications began construction of a vertical search engine in the summer of 2007. The search engine, which later became the foundation of Zoocasa’s website, was launched to the public in August 2008. Zoocasa is an aggregate site that said it is “the Realtors’ best friend” and “a new, innovative way to search for homes in Canada.”

Shortly after the launch, representatives of Rogers met with Century 21 in the hopes that the latter would co-operate with Zoocasa’s plans for the site. Century 21 was not interested and decided not to participate. Despite the response, Zoocasa decided to access Century 21’s site anyway, ‘scraping’, ‘framing’ and ‘indexing’ data without their permission, the judgment says.

In September 2008, Century 21 sent a letter to Rogers stating that it did not consent to the above actions. A Terms of Use contract, which asks users not to “frame in another website, post on another website or otherwise use content for any public, commercial or non-personal use,” was placed on the site in October. Despite this, Zoocasa continued indexing data from Century 21’s site, the judgment says.

Lawby says, “If we don’t want Google to index us, we just tell them and they stop. That wasn’t the case here. And the difference between indexing and actually taking the content and not linking back is very different too.”

Century 21’s solicitors sent another letter stating that consent to access data had not been given and demanded that all material be removed from Zoocasa’s site. In response, rather than removing the data entirely, Zoocasa began posting truncated descriptions and thumbnail photos instead, taking what they referred to as “snippets” of information. The attempted “compromise” was unacceptable to Century 21. By February 2010, Century 21 brought forward an action for copyright infringement. In March 2010, Zoocasa stopped indexing Century 21’s data, except in cases where individual agents requested it.

The case sought to resolve a number of issues. First, whether or not the Terms of Use was indeed an enforceable contract, and if so, were damages recoverable for the breach of that contract? Had the defendant, Zoocasa, committed copyright infringement and if so, were damages for that breach recoverable? Was Rogers liable for Zoocasa’s actions? And finally, was Century 21 entitled to injunctive relief, meaning that Zoocasa would be forced to cease its behaviour in future?

According to the judgment, Century 21 claimed that Rogers Communications was also liable, since it had “directly supported and promoted” the Zoocasa website. Rogers is the sole provider of funding for the project and a number of Rogers employees were directly involved in the development and maintenance of the site. Rogers could have been found liable for authorizing copyright infringement through direct or indirect actions, “including a sufficient degree of indifference.” Since there was no evidence to support that Rogers’ role amounted to anything more than that of a shareholder, all claims against Rogers were dismissed.

Agents Bilash’s and Walton’s claims for injunctive relief were denied since there was no indication that Zoocasa would continue to infringe their copyright. However, given the difficulty in assessing damages as a result of breach of contract, Century 21 was granted a permanent injunction against Zoocasa.com. The injunction restrains Zoocasa, “by itself, its servants, agents, affiliates, subsidiaries or otherwise from accessing the Century 21 website.”

“So all in all,” says Lawby, “We came away feeling very good – that you can’t just go out and take whatever you want from the Internet and create a for-profit business, so to speak.”

Zoocasa representatives reached by REM declined to comment on the case.