Trader v CarGurus, 2017 ONSC 1841

Through its websites "autotrader.ca" and "autohebdo.net", Trader operates "digital marketplaces" relating to new and used vehicles in Canada. Trader provides a service to dealers whereby Trader photographers take photos of vehicles to include in the listings on the websites. CarGurus became a direct competitor in Canada to Trader in the spring of 2015. Trader alleges that CarGurus infringed Trader's copyright in a number of these photos. Trader was seeking statutory damages in the amount of $98,370,000 ($500 per infringing photo, of which there are 196,740).

The Court noted that evidence was provided by CarGurus as to its practices for obtaining vehicle listings, which includes using computer software to "crawl" online and extracting data of interest. The Court found that the photos were the subject of copyright, and that Trader had established it owned the copyright in 152,532 photos. However, there was no direct evidence of ownership with respect to the remainder of the photos.

In terms of infringement, the Court noted that CarGurus' argument was that it did not reproduce the photos but the images only appeared to be part of CarGurus' website and were instead located on servers hosting the Dealers' websites. This argument was rejected by the Court on the basis that the display on the CarGurus website made the photo available to the public by telecommunication. CarGurus relied on the defence of fair dealing, but the Court was not persuaded that the dealing was fair, partly relying on the fact that reason was a commercial one. Finally, the Court considered whether CarGurus is exempt from the claim for statutory damages on the basis that it is a provider of an information location tool pursuant to section 41.27 of the Copyright Act. The Court found that CarGurus was not acting as an intermediary.

The Court granted a declaration that 152,532 photos were infringed, and ordered statutory damages in the amount of $2.00 per photo, for a total of $305,064. The Court considered a number of factors when determining the appropriate amount of statutory damages. Punitive damages and a permanent injunction were denied. The Court noted that CarGurus had removed all the impugned photos and taken a number of other steps such that the injunction was not necessary.