Deep Links / Copyright
Infringement, Unfair business practice? Ticketmaster v. Tickets.com
United States District Court,
Central District of California
decided March 27, 2000
The motions to
dismiss the First Amended Complaint (FAC) made by defendant Tickets.com, Inc., (hereafter
Tickets) is granted with 10 days leave to amend as to claims 2 (breach of
contract), 6 (misappropriation), 8 (trespass), and 9 (unjust enrichment). The
motion is denied as to claims 1 (copyright infringement), 2 (federal unfair
competition and reverse passing off), 4 (false advertising), 5 (state unfair
business practices) and 10 (interference with business advantage). Defendant
need not answer the claims not dismissed until either 10 days after a Second
Amended complaint has bean filed or notice is given that such will not be filed.
Both parties
have made reference to declarations filed in connection with the forthcoming
motion for preliminary injunction. Such matters may not be properly considered
on an FRCP 12(b)(6) motion to dismiss the complaint, which limits consideration
to matters in the complaint and items of which the court may take judicial
notice (none here). However, where an amended complaint has been filed, items
pleaded or attached as exhibits to the original complaint may be considered to
the extent they contradict assertions in the amended complaint.
The web site of
plaintiffs Ticketmaster Corporation and Ticketmaster Online-CitySearch, Inc. (hereafter
collectively, in the singular Ticketmaster) operates to allow customers to
purchase tickets to various events (concerts, ball games, etc.) through an
internet connection with its customers. On the Ticketmaster home page, there are
instructions and a directory to subsequent pages (one per event). The event
pages provide basic information (short description of the event, date, time,
place, and price) and a description of how to order tickets by either internet
response, telephone, mail, or in person. Each of these subsequent pages is
identifiable with an electronic address. The home page further contains (if a
customer scrolls to the bottom) "terms and conditions" which proscribe,
among other things, copying for commercial use. However, the customer need not
view the terms and conditions to proceed straight to the event page which
interests him. Ticketmaster has exclusive agreements with the events it carries
on its web pages so that tickets are not generally available to those events
except through Ticketmaster (or reserved for sale by the event itself, or
available from premium ticket brokers who generally charge higher than face
value).
Tickets also
operates a web site (Tickets.Com) which performs a somewhat different ticketing
service. While Tickets does sell some tickets to certain events on its own, it
also provides information as to where and how tickets which it does not sell may
be purchased. A short factual description as to event, time, date, place and
price is listed. Where Tickets does not itself sell the tickets, a place is
given the customers co click for a reference to another ticket broker, or to
another on-line ticket seller. Here is where the unique feature of this case --
hyperlinks or deep linking -- comes in. Where the exclusive ticket broker is
Ticketmaster, and the customer clicks on "Buy this ticket from another
on-line ticketing company", the customer is instantly transferred to the
interior web page of Ticketmaster (bypassing the home page) for the particular
event in question, where the customer may buy the tickets (from Ticketmaster,
not Tickets) on-line. An explanation is generally given by Tickets as follows:
"These tickets are sold by another ticketing company. Although we can't
sell them to you, the link above will take you directly to the other company's
web site where you can purchase them." The interior web page contains the
Ticketmaster logo and the customer must know he is dealing with Ticketmaster,
not Tickets.
In order to
obtain the basic information on Ticketmaster events, Tickets is alleged to copy
the interior web pages and extract the basic information (event, place, time,
date and price) from them. That information is then placed in Tickets format on
its own interior web pages. Tickets no longer (if it once did. as alleged)
merely copies the Ticketmaster event page on its own event page. However, by the
use of hyper-linking (i.e. electronic transfer to the particularly numbered
interior web page of Ticketmaster), the customer is transferred directly to the
Ticketmaster interior event page.
The motion to
dismiss the first claim (copyright infringement) is denied because the complaint
alleges actual copying. Plaintiff claims that the copying includes printing the
factual information derived from the Ticketmaster interior web pages. The court
does not accept this argument. A copyright may not be claimed to protect factual
data (Feist Publications '91 499 US 340, 113 LEd2d 358). While the expression,
organization, placement, etc., of the factual data may be protected, Tickets is
not alleged to have copied the method of presentation, but rather to have
extracted the factual data and presented it in its own format. Where Tickets is
alleged to have copied (¶ 35 of FAC) is in the making of thousands of copies
taken from Ticketmaster's interior web pages for the purpose of extracting the
factual data carried thereon and using it to publish its own version containing
the factual data. Thus, copying is alleged (albeit not republication of
protected material). Thus, the court rejects Ticketmaster's basic contention
that it is copyright infringement to take basic facts from its publicly
available web pages and use those facts (if the expression and method of
presentation is not copied). Copying is alleged by transferring the event pages
to Ticket's own computer to facilitate extraction of the facts. This is a very
different case from merely copying for its customers the Ticketmaster event
pages. This falls in the same category of taking historical facts from a work of
reference and printing them in different expression. By a similar analogy, the
hyperlink to the interior web page (whatever it may do for-the unfair
competition or interference claims) does not allege copying.
Further,
hyperlinking does not itself involve a violation of the Copyright Act (whatever
it may do for other claims) since no copying is involved. The customer is
automatically transferred to the particular genuine web page of the original
author. There is no deception in what is happening. This is analogous to using a
library's card index to get reference to particular items, albeit faster and
more efficiently.
There is an
ambiguity in the FAC which yet needs to be cleared up, although not involving a
failure to state a claim. A federal court does not have jurisdiction of a
copyright infringement claim until the copyright is registered (or refused
registration). (In at least one circuit, application for registration is
sufficient to confer jurisdiction.) In ¶ 26 of the FAC, it is alleged that the
"Ticketmaster Web Site, including the Ticketmaster Event Pages, is subject
to copyright owned by Ticketmaster Corp. The copyright of the Ticketmaster Web
Site has been registered with the United States Copyright Office...."
Exhibit F to the FAC shows that the title of the work copyrighted is "Ticketmaster.com
Web Site II" and (later) "Ticketmaster.com Web site III" and that
the nature of the authorship is "underlying source code." The event
pages change from day to day as old events are dropped out and new ones are
added. There is a possible ambiguity as to whether the copyright as registered
covers not only the home page but also each of the event pages. Since the
alleged copying is only of the event pages, there is still the question for
further proceedings as to the court's jurisdiction over the claim of copyright
infringement of the event pages.
The motion to
dismiss the second claim (breach of contract) is founded on the "terms and
conditions" set forth on the home page of the Ticketmaster site. This
provides that anyone going beyond the home page agrees to the terms and
conditions set forth, which include that the information is for personal use
only, may not be used for commercial purposes, and no deep linking to the site
is permitted. In defending this claim, Ticketmaster makes reference to the
"shrink-wrap license" cases, where the packing on the outside of the
CD stated that opening the package constitutes adherence to the license
agreement (restricting republication) contained therein. This has been held to
be enforceable. That is not the same as this case because the "shrink-wrap
license agreement" is open and obvious and in fact hard to miss. Many web
sites make you click on "agree" to the terms and conditions before
going on, but Ticketmaster does not. Further, the terms and conditions are set
forth so that the customer needs to scroll down the home page to find and read
them. Many customers instead are likely to proceed to the event page of interest
rather than reading the "small print." It cannot be said that merely
putting the terms and conditions in this fashion necessarily creates a contract
with anyone using the web site. The motion is granted with leave to amend in
case there are facts showing Tickets' knowledge of them plus facts showing
implied agreement to them.
The motion is
denied as to the 3d, 4th, and 5th claims (passing off, reverse passing off, and
false advertising). These claims state federal (Lanham Act) claims. As
defendants point out, the exhibits attached to the original complaint and the
FAC do not appear to support the claims, but they are not necessarily intended
to. The body of the FAC alleges that Tickets falsely suggested or implied an
association with Ticketmaster, the giving of misleading information about phone
numbers, and the unauthorized control over event pages of Ticketmaster. The
complaint also alleges deep linking as an example of unfair competition, but the
court concludes that deep linking by itself (i.e., without confusion of source)
does not necessarily involve unfair competition. The false advertising claim is
supported by allegations that Tickets has falsified information about the
availability of tickets through Ticketmaster and that tickets are available only
through premium ticket brokers. Tickets acknowledge that there may have been
some accidental errors, which were corrected, but this issue is for later
proceedings. Commercial advertising (i.e., publication by a business competitor)
is sufficiently alleged to state a claim.
The next topic
is Copyright Act preemption of state law claims. State law claims which come
"within the general scope of copyright" are preempted (17 USC §
301(a); see Dielsi CDCA'96 916 FSupp 985, 991). This means that matters within
the scope of copyright law are preempted when the state law rights are
equivalent to rights under the general scope of copyright. To survive, the state
law claims must have an "extra element" which changes the nature of
the claim (Del Madera Properties 9Cir'87 820 F2d 973, 976). Further, where
copying is permitted by the Copyright Act, a contrary state law could not be
enforced. Applying these principles to this case:
1. The contract
claim is not preempted Aside from copying (which is preempted), the contract
claim, alleges adherence by Tickets to a contract not to use for commercial
purposes (possibly not preempted) and not to deep link (not preempted). (See,
e.g., Trenton Infinity CDCA'94 865 FSupp 1416, 1429.)
2. The 6th and
8th claims (misappropriation and trespass) are preempted and the motion is
granted as to these claims. The essence of each claim is the invasion and taking
of factual information compiled by Ticketmaster. To the extent that state law
would allow protection of factual data (not clear at all), this cannot be
squared with the Copyright Act (see Feist, supra). In addition, it is hard to
see how entering a publicly available web site could be called a trespass, since
all are invited to enter.
3. The 7th claim
(state unfair business practices) is preempted insofar as it alleges the taking
and publication of factual data. However, the claim also alleges the use of
false advertising, supplying the "extra element" over and above
copyright law. Accordingly, the motion is denied .as to this claim.
4. The 9th claim
(unjust enrichment) is preempted and the motion to dismiss is granted since the
allegation is that defendant enriched themselves by taking the factual material
from Ticketmaster's web site. It is hard to see how this could be since Tickets
is not selling the tickets or participating in the proceeds. Whether that is
correct or not, copyright preemption covers the subject of taking factual data
without taking the mode of expression of same.
5. The 10th
claim (tortious interference with prospective business advantage) is not
preempted. This claim is that advertisers who pay on the basis of the number of
"hits" on the home page will not pay for deep linked reference to the
interior event pages. This is alleged to be purposely done to disrupt
Ticketmaster's income from those advertisers. Further, the allegation is made
that bypassing the home page enables the customer to avoid the terms and
conditions, which are not available to him on the event page. There are
virtually no cases on deep linking, particularly none on linking to particular
interior pages of a website. The allegations of deliberately disrupting business
by hyper-linking do alleged the "extra element" necessary to escape
preemption. Accordingly, the court is not ready to definitively rule on this in
the context of an interference claim and the motion to dismiss is denied as to
this claim.