Intellectual Property

Web scraping is 'robbery:' Kulish

By Tony Poland, AdvocateDaily.com Associate Editor

A recent Federal Court of Canada decision on web scraping shows that “you can’t go into someone’s house and steal from their pantry,” says Toronto intellectual property lawyer Taras Kulish.

Kulish, a senior associate with Steinberg Title Hope & Israel LLP, says the practice of going onto another website and “scraping” or copying data and reposting it on another site without permission is akin to “robbery.”

“It’s stealing. It’s no different than if somebody went into an art gallery and took photos of beautiful paintings, then copied and sold them for commercial purposes. That’s the underlying principle,” he tells AdvocateDaily.com. “Data is data, even if it is a photograph. It’s still the fruit of your labour.

“You can’t go into to somebody else’s house, take what’s sitting on a shelf or counter then repackage and sell it.”

According to a Globe and Mail report, Canada’s largest real estate board secured a permanent injunction from the Federal Court to stop a now-defunct property-listing website from using its real estate data.

The board sued the website last fall, alleging it was illegally accessing, copying and distributing its listing service information, the Globe reports.

“It’s a good result not only from the copyright perspective but also from the standpoint of ownership of data,” Kulish says. “It’s like a patent. Individuals spent a lot of time developing this data, so they should have some measure of protection that somebody is not just going to come onto their site, scrape it and use it commercially.”

He says the issue of web scraping is not new and that other lawsuits have been brought to stop it. Kulish points out that it’s not enough to say the data has been “rebranded,” or claim unfair or monopolistic practice to justify repurposing information from a website.

“It definitely would be considered a widespread problem. It can be quite easy to scrape data,” Kulish says. “Just because you feel justified doesn’t mean it’s right. This is not the case of a criminal going into a drug dealer’s house and taking everything and the drug dealer saying, ‘Well I can’t report this to the police because it was ill-gotten gains to begin with.’ It’s that kind of cowboy thinking that they should be able to do what they want, but the court is saying no.”

He applauds the injunction because “the cumulative effect will make a difference.”

“The internet 10 or 15 years ago was the wild, wild west and the more decisions you have like this ensures that privacy and copyright laws are applied,” Kulish says.

“It’s the whole theory of enforcing laws, and it has a chilling effect on criminals or people who are trying to do business in a less than ethical and legal manner. Now any organization that develops data can feel more confident that they can go after infringers.”

He says he has clients developing apps who seek his advice to ensure they are following privacy and copyright laws.

“Did people think about that before? Not necessarily but now they’re realizing they’ve got to put thought into making sure their apps comply with the law,” Kulish notes.

He says the bottom line is if you want to use copyrighted information from a website, “you have to do it like anyone else would and get a licence.”

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