In my opinion, a publicly available website does not necessarily give a right of access free of any contractual terms. Depending on the circumstances, a contract may be formed.
Since the plaintiffs showed they suffered but not damages of any substantial character, only nominal damages were awarded in addition to an injunction.
The Court canvased the ownership and chain of title in the property descriptions and photographs that had been downloaded. The Court determined that only the individual agents held copyright in the listings, not the corporate parties due to the contractual arrangements between the plaintiffs and dismissed the copyright claims by Century 21.
The personal claims of copyright infringement were granted. Substantial portions of the works were reproduced and none of the ‘fair dealing’ defences applied although the court did consider the interaction between ‘fair dealing’ and the robot exclusion standard (‘robots.txt’ file).
The court found that $500 per photograph and description to be “grossly out of proportion to the infringements” so awarded $250 per work, or $32,000 total.
Trespass against chattels
The court dismissed this claim on the basis that Century 21 had no possessory interest in the servers hosting its website. Only Century 21’s hosting service had such an interest and they were not a party to the action.
 The chattels in question are the servers of WTL or its third party suppliers. Century 21 under its agreement with WTL has no possessory interest in those servers. As a result, an essential element of the tort of trespass to chattels is not present. Any potential claim for trespass to chattels would be that of WTL. They are not a party to this action. Century 21’s claim respecting trespass to chattels is dismissed.
The decision is available at Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196.