On April 4, 2017, the Ontario Superior Court of Justice (“Court”) rendered a decision in a copyright case, Trader Corp. v CarGurus Inc that will be of interest to charities and not-for-profits. Trader Corporation (“Trader”) and CarGurus, Inc. (“CarGurus”) are competitors in the marketplace and both operate “digital marketplaces”, which include listings of vehicles on their respective websites that are available for sale from vehicle dealers. Trader operates the popular auto trading website, Autotrader.ca and related websites and mobile applications, including a service for dealers called “Capture Service”, which involves Trader’s photographers going to the dealerships and taking photos of the vehicles to include in the listings of cars that are for sale. CarGurus is new to the Canadian market, but is one of the largest digital marketplaces in the United States. When CarGurus came to Canada they used the same methods for sourcing information as they had in the US, including using computer software to crawl the internet and extract or “scrape” data relating to vehicle listings from other dealers’ websites and posting it on their website. This resulted in CarGurus displaying 196,740 photos that Trader alleged infringed its copyright in the photos taken and owned by Trader for its Capture Service.
Trader sought $98,370,000 in statutory damages for the copyright infringement of the 196,740 photos. That is $500 per photo, which is the statutory minimum under the Copyright Act. The Court determined that Trader owned the copyright in 152,532 of those photos. Even with the Court-reduced number of 152,532 photos, damages under the statutory minimum would amount to $76,266,000. The Court exercised its discretion to award fewer damages on the basis of section 38.1(3) of the Copyright Act, which allows the Court to award a lower amount if “[t]here is more than one work or subject matter in a single medium” and “the awarding of even the minimum amount referred to in that paragraph or that subsection would result in a total award that, in the Court’s opinion, is grossly out of proportion to the infringement.” In this case, the Court determined that this section applied and awarded statutory damages of $2.00 per photo, for a total of $305,064 in damages.
This case is a good reminder for charities and not-for-profits that using photos from the internet can have serious consequences. As a result, charities and not-for-profits should be careful not to reproduce photos extracted from the internet on their websites without obtaining the requisite consent. It is best to first consult with legal counsel.