How to Stop Website Content Scrapers
Copyright is the sole right to produce or reproduce a work or any substantial part thereof in any material form (Section 3(1) of the Copyright Act). Copyright subsists in every original literary, dramatic, musical and artistic work. Content you’ve produced for your website is likely protected by copyright, and the activities of content scrapers infringe that copyright. It is not significant that your site may be referenced in some way or that you are otherwise given credit for the republished content. Attributing credit to the author does not change the nature of the activity, nor does it serve to excuse the infringement.
How Do I Protect My Content?
As long as your content is available online, you assume the risk that it will be scraped and republished elsewhere. However, there are measures you can and may wish to employ to make content scrapers think twice about appropriating your work.
Someone Has Stolen My Content – What Now?
If you discover your website has been the subject of content scraping, you may want to get in touch with the individual responsible for the website republishing your content. Alternatively, or, in addition, our professionals can prepare cease and desist letters to demand that the individuals responsible discontinue their illicit use of your site and remove the stolen content from their platform. Note that these letters, although often effective, can also be ignored by the recipient.
Regardless of the avenue you choose to assert your rights, you will need to identify the individual(s) involved. The best place to start is to search the Internet Corporation for Assigned Names and Numbers (ICANN) WHOIS database. Whenever someone registers a domain name, they are required to provide some basic information including a physical address, e-mail address, and phone number. WHOIS is a great place to start your search however owners can elect to remain private in exchange for a fee, or by employing a company to register on their behalf, so it may not provide all the information you’re looking for. Another way to reveal the owner of the offending site is to ask the web host. Most web hosts have pages on their own websites dedicated to reporting abuse or illegal activity by websites they host. The related policies and procedures will vary between services but reporting the offending page may help you to identify its owner and/or have the impugned content removed from the web. A final option is to seek a Norwich order from a court. A Norwich order compels a third-party to disclose information you need in order to commence a lawsuit, in this case, the defendant’s identity, and which you could not otherwise obtain. Because of the burden a Norwich order places on the innocent third party, and the potential for disclosure of confidential information, courts will weigh a list of factors to determine whether to grant the order. These factors include:
- Whether you have provided sufficient evidence to raise a valid claim;
- Whether you have shown that the third party was somehow involved in the wrong;
- Whether that third party is the only practicable source of information;
- Whether that third party could be indemnified should any harm come of the order,
if granted; and
- Whether the interests of justice favour the disclosure.
Where Can I Sue?
Jurisdiction is a key aspect of any legal proceeding. Jurisdiction refers not only to whether the court in which you initiate a proceeding has the authority to hear and make determinations in your matter, but also whether it should be the court to do so. Disputes related to the Internet can make the question of jurisdiction particularly complex and uncertain because of the nature of the Internet and its reach. You may run into a situation where the individual you want to sue is located in another country. The question, then, is where the suit should be brought. Courts have recently had the opportunity to consider jurisdiction in the context of a lawsuit related to online defamation. In that case, the Canadian court held that while the matter was connected to Canada by virtue of the webpage being accessible in Canada, the matter should be tried in Israel, the country in which the defamation originated. The court considered that fairness and efficiency favoured proceedings in Israel because witnesses were located there, and the plaintiff also had significant business interests and reputation in Israel. It remains to be seen how a court would decide jurisdiction faced with a content scraping case with a plaintiff inside, and a defendant outside, of Canada.
What Remedy Can I Expect?
The remedies available to you, should your lawsuit succeed, will depend on the successful cause of action. Generally, however, your remedy will consist of a court order (an injunction) and/or monetary compensation (damages). The quantum of damages will depend on the nature of damages deemed appropriate and is often subject to the court’s discretion.
Damages are often awarded in copyright infringement cases. The Copyright Act entitles a copyright owner to damages and, if not already accounted for, any profits the infringer made from the infringement.
You may also elect statutory damages as an alternative to these indeterminate damages any time before final judgment. With statutory damages you do not have to prove what losses you suffered as a result of the infringement, which will save you a lot of time and money. Instead, if you prove infringement you are generally entitled to the following statutory damages: (a) between $500 and $20,000 for each work infringed, if the infringements are for commercial purposes; and (b) between $100 and $5,000 for all works infringed, if the infringements are for non-commercial purposes. Courts consider various factors in deciding how much to award in each case. These factors include: the good or bad faith of the defendant; the conduct of the parties before and during the proceedings; the need to deter other infringements of the copyright in question; and the need for an award to be proportionate to the infringements when infringements were for non-commercial purposes. In special cases, a court can exercise its discretion to award less than even the minimum amounts of $100 and $500.
In addition to awarding compensatory damages, a court can compel the defendant to put an end to its illicit activities by issuing an injunction. In most cases, an injunction is a court order dictating that the affected party not do something. In some cases, an injunction will be granted while proceedings are still underway, to protect the plaintiff from irreparable harm that may be sustained during this time. This is a subtype of injunction called an interlocutory injunction, and, given that it restrains the defendant prior to a determination of the case, it isn’t readily granted. Irreparable harm is essential to the granting of such an injunction, meaning that the harm you sustain if the defendant is allowed to continue its activities during the proceedings must not be compensable with money. The more common injunction you can expect is granted following a determination that the defendant is in fact infringing your copyright and is termed a permanent injunction.
With respect to breach of contract, damages are directed toward putting the plaintiff in the position they would have been in had the contract not been breached. In a case of content scraping, these damages may often be difficult to establish. If there is minimal evidence provided by the plaintiff as to the injury sustained, the court may award nominal damages. Nominal damages are awarded where a wrong was committed but there has been no established financial loss. This was the case before the Supreme Court of British Columbia in 2011, and the awarded amount was $1,000.
If the infringer’s conduct with respect to either cause of action was particularly egregious, a court may also award additional damages termed “punitive” damages. These damages are so named because they are intended as punishment rather than compensation. In the above-referenced decision, the fact that the defendant’s conduct was calculated and deliberate, and continued in spite of explicit objection from the plaintiff, was held insufficient to warrant these damages.
A court’s reluctance to award punitive damages should not detract from the importance of pursuing other available remedies against content scrapers and asserting your copyright. Your work has value, let us help you protect it. If content scraping has happened to you, contact us now for a complimentary phone appointment to discuss how we can help.