Canada: Federal Court Makes Clear: Website Scraping Is Illegal

Last Updated: May 28 2019
Article by Lisa R. Lifshitz

As a general rule, we all know it is not a good idea to scrape content from a website, yet some companies persist in this behaviour contrary to law and best practice.

On April 15, Justice Richard Southcott of the Federal Court of Canada issued a permanent injunction against Mongohouse.com, aka, MongoHouse.ca, Sheng Lan Mai aka Maxim Mai, Kun Xu, 2565707 Ontario Inc. and Jing Liu (collectively, the Mongohouse defendants) in a stinging rebuke against web/data scrapers, upholding the copyright of the Toronto Real Estate Board in its internal multiple-listings service systems and database.

The Toronto Real Estate Board, a not-for-profit corporation representing more than 50,000 realtors across the Greater Toronto Area, is the creator, author and custodian of the TREB Multiple Listing Service®, a co-operative service that provides more than 100 online services, including access to active real estate listings, detailed property descriptions, archival information, photography, neighbourhood descriptions and other curated information related to real property (including purchase prices) that is available for use by its members for a fee and its partner real estate boards’ members. TREB has reciprocal agreements with other real estate boards across Canada and is affiliated with the Canadian Real Estate Association, the registered owner of the multiple listing service registered trademark and the MLS design.

The Toronto Real Estate Board’s statement of claim, filed on Sept. 12, 2018, alleged that Mongohouse.com’s entire existence (and business) was based upon its unauthorized access of the TREB MLS® system and infringing use and distribution of TREB MLS® information for a commercial purpose, namely monetizing TREB’s content for Mongohouse’s and its owners’ financial benefit. 

The Mongohouse defendants were accused of deactivating, bypassing and circumventing the various technological protection measures actively deployed by TREB to limit and restrict access to the TREB MLS® system and the MLS® information, in violation of various confidentiality and copyright protection obligations of TREB’s listing agreements, its authorized user agreements, statutory obligations and third-party licence agreements with information-supply partners including Teranet Inc. and the Municipal Property Assessment Corporation.   

The claim also named the software engineer who was the alleged author of the software used to crack TREB’s technological protection measures to gain access to the TREB MLS® information and display it on Mongohouse. 

Various U.S. and Canadian internet service providers were also originally named in the claim for the purposes of obtaining injunctive relief requiring them to comply with take-down notices and to cease hosting Mongohouse as well as providing all information regarding the identity of the current and past site owners and operators.

Currently, TREB members can only access the TREB MLS® system by providing two levels of credential authorization to authenticate their user names, passwords and using a PIN number to gain access. Members are also required to abide by the TREB MLS® rules and policies, which require them to agree to the TREB authorized user agreement terms and conditions.

Section four of the AUA explicitly prohibits authorized users from using, copying, reproducing or exploiting “the MLS Database contrary to various By-Laws, the MLS Rules and MLS Policies” or Ontario’s Real Estate and Business Brokers Act. 

Authorized Users are also expressly forbidden, under s. 7(c) of the AUA, to “decompile, reverse-engineer, disable, modify, analyze or create derivative works of the software, MLS Database or BRS Database.” TREB presently uses, as described in the claim, a variety of software applications and protection measures to actively prevent third parties from gaining unauthorized access to and download or stream the TREB MLS® information, including antivirus software, third-party anti-scraping services (ongoing monitoring and check/validation processing), hosting-service firewalls and intrusion-detection systems, anti-malware software and detection systems and encrypted token authentication protocols.

Mongohouse stood accused of subverting the TPMs put in place by TREB and populating its website, on a daily basis and at no charge, with content that it had copied from the TREB MLS® system, including new property listing, prices, photography and detailed property descriptions. 

Using maps with indicators to show new property listings and recently sold properties to its 50,000 registered users, in a similar form and with a similar content and layout to that provided by TREB, Mongohouse also offered advertising space to real estate-related businesses in competition with TREB.

The claim alleged that the information contained on the Mongohouse site could only have been available from TREB’s MLS® system, and TREB asserted that they had actually verified this fact by placing certain unique information in the TREB MLS® system for access by members (and restricting how this information could be displayed). TREB subsequently found that the information was suddenly available on the Mongohouse website within 24 to 48 hours following its initial placement on the TREB site, proof that the content was actually being scraped from the TREB MLS® system.

TREB argued that the TREB MLS® system, including its design, layout, presentation, manner of access and form/selection of information as well as the information contained therein, is proprietary to TREB (even though not all of the information is exclusive to it) and that it had spent millions of dollars annually for upkeep, maintenance and support of the online service for its members. Moreover, TREB claimed that the unique collection of information compiled, organized and maintained by TREB in the TREB MLS® system is a copyrightable work (namely a compilation that is original, independently created and organized that requires a great degree of skill, judgment and labour in its overall selection and arrangement) and that also contains confidential and proprietary information. Accordingly, as the author and content creator, TREB holds the copyright interest associated with the TREB MLS® info (and associated copyrights as defined in the Copyright Act and, therefore, only TREB MLS® has the right to authorize its use, copying, streaming, distribution or dissemination. Mongohouse, through the use of the illegally obtained TREB MLS® information, was passing itself off as offering the same services as offered by TREB (without users having to pay the associated fees), infringing TREB’s copyrights and exclusive rights in order to profit from advertising revenue, etc. 

In addition to an interlocutory and permanent injunction against Mongohouse and the defendants, TREB sought: damages for each breach and infringement of TREB’s proprietary information and copyrights in the amount of $100,000; an accounting as to the receipts by each defendant arising from such infringement of TREB’s copyrights and breaches of confidential information; damages in the amount of $2,000,000 under the Trade-Marks Act for infringement, passing off, confusion and loss of reputation and  pre-and post-judgment interest as provided by law and TREB’s costs on a solicitor and client basis.

By Oct. 1, 2018, not long after the filing of the claim, Mongohouse had taken down its site and it remained offline. However, on Oct. 30, 2018, the Mongohouse defendants responded with their own spirited, 73-page statement of defence and counterclaim denying virtually every allegation in the claim and counterclaiming for lost revenue. However, the Federal Court was not convinced and, with the consent of the Mongohouse defendants, definitively found and declared in its order that: As the owner of the TREB MLS® listing services and TREB MLS® database, TREB is the owner of the associated copyrights pursuant to the act; the unauthorized copying, data scraping, downloading, display, distribution, access to make available for distribution and streaming for public display of any TREB MLS® data is a breach of TREB’s proprietary rights and copyrights associated with the TREB MLS® service and  any access to the TREB MLS® system other than as authorized by TREB using any means to avoid, bypass, deactivate, impair or to circumvent in any manner a TPM is a breach of s. 41 of the act and is an infringement of TREB’s rights. 

The court further granted a permanent injunction against the Mongohouse defendants, restraining each of them (including their officers, directors, employees, agents, assigns or any person acting under their instructions) from: accessing, copying, data scraping, downloading, displaying, distributing, accessing to make available for distribution and streaming for public display any TREB MLS® data or information, unless expressly authorized in writing by TREB; using any method to avoid, bypass, remove, deactivate, impair or circumvent any technological protection measures put in place to protect or limit access to the TREB MLS® system and data; operating, conducting or having any involvement in or providing or offering means to access the TREB MLS® system or assisting in the collection or display of the TREB MLS® data, unless expressly authorized in writing by TREB; maintaining, operating, implementing, marketing or having any involvement with any business or enterprise used in any manner or form for the purpose of providing or offering a means to access the TREB MLS® system via any means or method, including any internet-based technology, without the express written permission of TREB. 

The action was otherwise dismissed on a without cost basis and Mongohouse’s counterclaim was also dismissed on a without costs basis.

What are the takeaways of this decision? 

The Federal Court has clearly laid to rest any question regarding the legality of web scraping.  The bottom line for prospective digital companies is: Engaging in unauthorized copying, data scraping, downloading and distributing third-party content without the consent of the original rights holders is illegal under the act; and web scraping is not the basis of a good business or revenue model that will likely be profitable or have staying power in the longer term.   

This article originally appeared as Lisa's IT Girl column in Canadian Lawyer Online

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions