The NeighborCity Lawsuits – Scraping the Surface of Copyright in Fact Based Works

Recently, I’ve been following with interest two copyright infringement lawsuits in the U.S. that have been brought by regional MLSs (Multiple Listing Services) against American Home Realty Network, the operator of the real estate search engine and referral site, NeighborCity.com. The cases have been receiving a lot of attention south of the border, including in a recent blog post by intellectual property law professor, Eric Goldman, on how Anti-Scraping Lawsuits Are Going Crazy in the Real Estate Industry. Like the Century 21 v. Zoocasa case here in Canada a couple of years ago, both of these cases address whether and how compilers of commercially valuable information (in all three cases, residential real estate listings) can protect it from being “scraped” from their websites by data aggregators and reproduced on competing websites.  It is a longstanding issue in the real estate industry, particularly in Canada where the Canadian Real Estate Association has drawn the wrath of the Competition Bureau over its efforts to limit public access to MLS databases. The focus in the Zoocasa case was less on Century 21’s rights in the listing information itself (other than copyright in the photos and the agent’s blurbs) than it was on the methods being employed by Zoocasa to obtain the information.  Zoocasa, a Rogers company which operates the real estate search site at Zoocasa.com, was ultimately found to have violated the Terms of Use posted on Century 21’s website that expressly prohibited data “scraping”, the widely used practice of deploying digital “robots” to locate desired information on a website and then to copy it to a different location. The Zoocasa case left open, for the most part, whether, and the extent to which, copyright will protect information such as MLS listings. For years, there has been a lot of uncertainty here over copyright in “fact based works”.  On the one hand, it has been well-established since Tele-Direct Publications Inc. v. American Business Information Inc. that the labour and investment in compiling factual information does not endow it with copyright protection. On the other hand, the Copyright Act specifically states that “a work resulting from the selection or arrangement of data” is protectable as a compilation. In many instances like MLS listing information or job postings, etc. it can be difficult to distinguish the data itself from the work that results from its selection. While 2012 saw a number of “information age” copyright issues addressed by the Supreme Court with its five copyright decisions, and by Parliament with the coming into force of Bill C-11, the Copyright Modernization Act, the scope of protection for fact based works was not among them. Rather than addressing the growing commercial value of fact based works in the digital age, Bill C-11 was virtually silent on the issue. And Canadian courts haven’t had many recent opportunities to consider it. Meanwhile in the U.S., one of the MLS plaintiffs in the NeighbourCity.com cases was granted a preliminary injunction against the defendant to stop “unauthorized copying, reproduction, public display, or public distribution of copyrighted content from the MRIS Database, and from preparing derivative works based upon the copyrighted content from the MRIS Database”. The Court subsequently attempted to clarify the Order, stating: “MRIS has demonstrated a likelihood of success on the merits that the MRIS Database exhibits the requisite originality for copyright protection. The Court is mindful, however, that the copyright in a factual compilation is thin... a subsequent compiler remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement.”[emphasis added] While these comments articulate the current state of the law in the U.S. (the same would apply in Canada), it is unclear how they apply to the central issue in the case - whether the defendant is infringing copyright by reproducing listing information from the MRIS database and reproducing it on a competing website. Given the lingering uncertainty regarding the protection of fact based works such as MLS listings, compilers of online databases should continue to heed the lesson from the Zoocasa case which is to post clear Terms of Use on their websites prohibiting the use of scraping type technologies. Another strategy that may yet prove useful will be to use some form of anti-scraping technology to foil the efforts of “data pirates”.  While such technology might be easy to circumvent, its use might violate the new provisions in the Copyright Act that prohibit the circumvention of “technological protection measures” intended to "control access" to a work. In that case, a scraper could be held liable for copyright infringement whether copyright subsisted in the actual information being scraped or not, so long as it formed part of a protectable compilation. By the way, here's a video clip of me talking about protecting online data: