The BC Supreme Court’s decision in Century 21 Limited Partnership v Rogers Communications Inc., 2011 BCSC 1196, [Link available here], sounds like a law-school mooting problem, given the number of issues it covers.

Zoocasa, a Rogers subsidiary, offered a search engine which allowed users to locate property listings based on specific criteria. Century 21, a real estate brokerage franchisor, took issue with this because Zoocasa was copying and indexing photos and listings from its own website. The Century 21 website was publicly accessible, but its terms of use precluded copying, indexing, saving or posting information from it elsewhere. The main issues were as follows.

Issue 1: did Zoocasa enter into a contract with Century 21 and was that contract breached? Yes: the terms of use were a contract, the consideration being the economic benefit derived by Zoocasa from access; Zoocasa’s activities breached the contract. Overview of the law on online contracting.

Issue 2: did Zoocasa infringe Century 21’s copyright? Yes, and no fair dealing exception was made out (the court also refused to apply the US doctrine of ‘transformative use’ as a basis for fair dealing).

Issue 3: did Century 21 have a claim for trespass to goods? No: not clear electronic access will give rise to such a claim, but in any event Century 21 had no possessory interest in its servers, which belonged to a third party.

Issue 4: was Rogers liable for the acts of its subsidiary, which it had incorporated and funded? No reason to treat parent and sub as one; no reason to conclude that Rogers controlled Zoocasa’s activities or instructed it to conduct them in breach of the law.

Issue 5: did Rogers induce Zoocasa’s breach of the contract with Century 21? No: insufficient proof of intention to procure breach, given the level of Rogers’ involvement.

Issue 6: for the purposes of assessing damages for breach of contract, did Zoocasa breach a duty of good faith? No: it was merely negligent in not knowing that industry norms would preclude its use of Century 21’s listing information.

Result: nominal damages for breach of contract, $30K for copyright infringement, Zoocasa permanently enjoined from accessing the Century 21 site.