The federal court in Illinois recently had to deal with such a situation. A dog lover put together a site with information about dog pedigrees for a certain breed. Someone else scraped that data, along with much other data, and assembled a web site with similar information. The original site owner put a notice on her site urging people to use her site as it added more value than the other, and referred to the owner of the second site as a thief who had stolen her data.
The owner of the second site sued for defamation, on the basis that information could not be stolen, so he was not a thief. No doubt the lack of a ready civil remedy reinforced his case. He said that the original owner’s lawyers had advised her that she has no remedy.
However, the judge was prepared to call a spade a spade, and a thief a thief, or at least to allow the original owner to do so. The fact that the law might not provide much of a remedy did not mean that the term was inappropriate. In any event the term ‘thief’ was not used in a technical sense but in a common understanding as someone who had taken something he was not entitled to. The original owner also had a qualified privilege in her remarks. It was not demonstrated that she published her remarks with ‘malice’, i.e. knowing or believing that they were false. She was entitled to disagree with her lawyers.
Would the Canadian law of defamation produce the same result? Am I right in thinking that Canadian IP, contract and criminal law do not differ substantially from US law on the relevant points, i.e. it would be hard for the original site owner to do much at law if someone scraped the content? The only Canadian cases I know of on point are both about scraping real estate listings, and both turned on what to me is the uncomfortable ground of a webwrap ‘agreement’ not to scrape…
Would the French law of ‘parasitism’ be a useful addition to Canadian law? It seems to allow judges to punish any commercial behaviour they don’t think is fair, regardless of intellectual property rules or other law.