Pay the wall – circumventing paywalls is copyright infringement

In 1395804 Ontario Limited (Blacklock’s Reporter) v. Canadian Vintners Association, 2015 CanLII 65885, Deputy Judge Lyon Gilbert of the Ottawa Small Claims Court found that the Defendants breached the Plaintiffs copyright by using a third party to circumvent the Plaintiff’s paywall.

The Plaintiff was an electronic daily that provides news for subscription-only users.  Commonly, the Plaintiff produces “teaser” articles, which include a headline and several sentences. If anyone is interested in the article, they can click a link to the full article, which is available to subscribers only.  The Plaintiff uses a paywall to require users to pay for a subscription before use.

The corporate Defendant is an association representing wine producers and the personal Defendant is the corporate Defendant’s President and Chief Executive Officer.

The Defendants were interested in a particular article, and the associated teaser article, by the Plaintiff for what the Defendants’ claim to be educational purposes and the desire to correct misstatements and inaccuracies in both the “teaser” and the full article.

Deputy Judge Gilbert held that the Defendants breached the Plaintiff’s copyright by circumventing the paywall:

Applying the law to the foregoing findings of fact relating to the basic question as to whether the Defendants have breached the Plaintiff’s copyright, section 41. 1 (1) is clear and applicable. You are prohibited from circumventing a technological protection which uses an effective technology to control access to a work. What the Defendants did is just that. They knew there was limited access to the full article. They knew that access was subscription based only and that subscriptions cost money. They knew that there was a technological barrier to that access. They knew that unless they paid they could not get it. They knew and chose another way around it. Having breached that prohibition, they have obtained copyrighted material belonging to the Plaintiff illegally.

Furthermore, fair dealing did not apply because the Defendants did not obtain the copyrighted material legally.  Regardless, even if it was obtained legally, the character of the dealing was not favourable to the Defendants.

Deputy Judge Gilbert awarded damages of $11,470.00 plus HST, representing the cost of an institutional license for the Plaintiff’s website, plus $2000.00 in punitive damages.

A copy of the decision can be found here.