Ticketmaster v. Tickets.com
54 U.S.P.Q.2d 1344 (C.D. Cal. 2000)
Ticketmaster sued its rival online ticket vendor, Tickets.com, for allegedly deep linking to copyrighted information from the Ticketmaster site in violation of Ticketmaster’s rights. In the court denied Tickets.com’s motion to dismiss as to the copyright infringement claim because it found that the complaint satisfactorily alleged copying. The offensive copying warranting denial of the motion to dismiss was the copying of the Ticketmaster event pages to Tickets.com’s own computer for 10-15 seconds in order to facilitate the extraction of facts that were published on Tickets.com.
The court found that Tickets.com only republished the uncopyrightable factual data in Ticketmaster’s site on to Tickets.com. Further, it presented the information on Tickets.com in its own format, not in the format used on the Ticketmaster site. Therefore, the material that actually appeared to the consumer on the Tickets.com Web site was not copyrightable.
In addition, the court found that Tickets.com’s use of links in itself does not violate the Copyright Act since no copying is involved, and since the user is transported directly to the Ticketmaster Web page. Finally, the court found ambiguity over whether it had jurisdiction over the copyright claim. Ticketmaster had a copyright on its home page, but the links on Tickets.com skipped the home page and went directly to the ‘event page’ for a particular event. The event pages change from day to day. The court held that there was an issue over whether Ticketmaster’s copyright registration even covered the information on the event pages.
In considering the claim that defendant breached the terms and conditions of plaintiff’s Web site, the court declined to apply earlier holdings that “shrinkwrap” agreements are enforceable because provisions in the terms and conditions were not obvious and apparent and there was no requirement to click on an “I agree” or similar button to view the site in full. (the court distinguishes “shrinkwrap license” agreements, where the packaging on the outside of the CD states that opening the package constitutes adherence to the license agreement, from the Ticketmaster terms and conditions, which are set forth so that the customer needs to scroll down the home page to find them. Id.
2000 U.S. Dist. LEXIS 12987 (C.D. Cal. 2000), aff’d 2001 U.S. App. LEXIS 1454 (9th Cir. 2001)
In a subsequent action, Ticketmaster sought a preliminary injunction against its rival online ticket vendor, Tickets.com, to prevent Tickets.com from deep linking to and copying from the Ticketmaster site.
Analogizing the situation to reverse engineering, the court held that even though the copying was intentional and for commercial gain, it fell under the fair use exception. Specifically, the court stated that the ten to fifteen second copy was not used competitively, was destroyed after it served its limited purpose, was used only to facilitate the gathering of non-protected material, and was the most efficient way of doing so.
2003 U.S. Dist. LEXIS 6483 (C.D. Cal. 2003)
Ticketmaster later narrowed its claims solely to those based on contract theory, copyright theory and trespass to chattels theory. Tickets.com moved for summary judgment against those claims. The court denied summary judgment as to plaintiff’s contract claim because a contract may be created as a result of visiting the interior pages of Ticketmaster’s Web site after being made aware of the conditions accepted when doing so. However, the court granted summary judgment against the copyright and trespass to chattels claims. According to the court, making a temporary copy of electronic information from Ticketmaster’s Web site constituted fair use. In regard to the trespass to chattels claim, the court found that because no dispossession of the chattel (or Web site) had occurred for a “substantial time” so as to adversely affect the use or utility of the computer, not all elements of the claim had been met. Id.; see also Mist-On Sys., Inc. v. Gilley’s European Tan Spa, 2002 U.S. Dist. LEXIS 9846 (W.D. Wis. 2002) (holding that frequently asked questions pages of Web sites and words or phrases commonly used on these pages are not copyrightable).