The other main question the Court had to answer was: Was Zoocasa’s copying of copyrighted works from Century 21’s website fair dealing?
Fair dealing is an exception to copyright infringement under the Copyright Act. If a copyright infringer can show that they fall under this exception then they do not legally infringe the copyright. For a dealing to be fair it must be for the purpose of research, private study, criticism, review or news reporting and it must pass a complex test to see if the dealing is “fair”.
The Court performed this test and determined, in the end, that Zoocasa’s use was not fair and copyright was infringed by the unauthorized copying of material from Century 21’s website. This is a fairly unsurprising result because Zoocasa was taking copyrighted material to promote its own website and to try to make money. What was different and interesting here was that Century 21 argued that the usual complicated test should not matter because Zoocasa didn’t comply with something called the Robot Exclusion Standard. The Robot Exclusion Standard is a search engine industry standard which provides an easy way for websites to stop search engines that follow the standard from crawling their content with robots. Zoocasa did not follow this standard and so, Century 21 could not easily stop Zoocasa from using its robot. Century 21 argued that because Zoocasa did not follow the industry standard, its dealing could not have been fair.
However, the Court decided that the Robot Exclusion Standard addresses only how the copyrighted material was obtained, not whether its use was fair. How the material came into Zoocasa’s possession is irrelevant to whether they used that materially fairly after they acquired it. So, it didn’t matter at all that Zoocasa was not following an industry standard when they copied material from Century 21’s website.
The last important point from this case is to make sure that you are fully aware of who owns the copyright in materials on your website. Much of the copyrighted material on Century 21’s website was photographs and descriptions that were written by and owned by real estate agents, not by Century 21. While Century 21 was organizing the lawsuit against Zoocasa they failed, for whatever reason, to get sufficient rights assigned from the real estate agents to Century 21. As a result, the copyright claim by Century 21 was dismissed. However, all was not lost as the real estate agents who did have the appropriate rights were also plaintiffs in the lawsuit, and they were awarded $32,000 in damages.