Designer Skin LLC v. S & L Vitamins, Inc., et al.
Ticketmaster Corp. v. Tickets.com, Inc.
2003 U.S. Dist. Lexis 6483 (C.D. CA., March 7, 2003)
Browse-wrap Contract Can Be Created By Use Of Website With Knowledge That Such Use Creates Binding Agreement
Court holds that a binding browse-wrap agreement can be formed by the use of a web site, without more, if the user has actual knowledge that the site's Terms and Conditions so provide. As a result, the Court denied defendant Tickets.com's summary judgment motion, which sought dismissal of breach of contract claims arising out of Tickets.com's use of a search robot to obtain information about concerts from plaintiff Ticketmaster's web site. The Court held that issues of fact as to defendant's knowledge of the site's Terms and Conditions at the time it used plaintiff's site precluded a determination as to the binding nature of such Terms.
The Court did grant so much of Tickets.com's summary judgment motion which sought dismissal of trespass to chattels claims Ticketmaster asserted as a result of such activity. These claims failed because of the absence of evidence that "the use or utility" of Ticketmaster's computers were being adversely affected by Tickets.com's use of a search robot to gather information from plaintiff's site.
Finally, the Court dismissed several copyright infringement claims brought by Ticketmaster. These included infringement claims arising out of the temporary copying into the RAM of defendant's computers of data from plaintiff's site, including materials in which plaintiff held a copyright. These materials were copied as an intermediate step to obtaining, and displaying on Tickets.com's own site, factual information contained therein. The Court held such copying was a protectable fair use given the only materials retained at the end of the process were the facts -- as to concert locations, dates and times -- contained therein, which facts were not protected by copyright. Infringement claims arising out of deep linking to interior pages of plaintiff's website were dismissed because, by deep linking into plaintiff's site, Tickets.com was not showing or displaying plaintiff's copyrighted materials (which instead were being displayed by plaintiff itself). Finally, infringement claims arising out of copying the URLs from such interior pages were dismissed because such URLs did not have sufficient originality to be copyrightable.
Tickets.com Obtains Information From, And Deep Links To, Ticketmaster's Website
Plaintiff Ticketmaster and defendant Tickets.com are competitors in the sale of tickets to the public for entertainment events such as concerts, plays and ballgames. Each operate web sites at which they offer tickets for sale.
Ticketmaster creates a separate interior web page for each event for which it sells tickets. At this web page a user can purchase tickets for that event, as well as obtain information as to its date, time and location. Each of these web pages are assigned an individual URL denoting its location on the Internet.
Like plaintiff, defendant Tickets.com also creates separate web pages for each of the events for which it sells tickets. For a period of time, it also provided information concerning events for which it did not sell tickets.
From November 1998 until July 2001, Tickets.com obtained information concerning plaintiff's events by sending a spider to plaintiff's site. The spider would temporarily copy information from plaintiff's website into a computer's RAM for approximately 10-15 seconds. During this period of time, a software application would extract the factual information about the relevant event from the copied data, which factual information would then be presented on defendant's site in a format that differed from the presentation found on plaintiff's own site. The balance of the copied data, except the source web page's URL, would be discarded. This discarded data included material in which plaintiff held a copyright, such as its logos, as well as ads found on plaintiff's site. These discarded materials were never shown to the public.
From March 1998 to early 2000, defendant put deep links on the web pages it created on its site concerning events at which Ticketmaster sold tickets, which links took a user directly to the interior web page at which Ticketmaster sold tickets for that particular event. These links allowed the user to by-pass the home page of Ticketmaster's site, and any advertisements appearing therein. Directly preceding such links was a notice which advised the user that the link would take him to another company's web site. This notice stated: "Buy this ticket from another online ticketing company. Click here to buy tickets. 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." Tickets.com used the interior web page URLs it copied from plaintiff's site in creating these deep links.
Ticketmaster argued that defendant's actions violated its web site's Terms and Conditions, which prohibited both deep linking, and the use of the contents of its site for commercial purposes. At the outset of the litigation, these Terms and Conditions could only be found by scrolling to the bottom of the home page of plaintiff's web site. Importantly, these Terms and Conditions were not contained 'above the fold,' and thus, a user could view plaintiff's home page, and enter plaintiff's site, without becoming aware of their existence.
After the lawsuit commenced, plaintiff moved the notice of its Terms and Conditions to a prominent place on its home page, where it "could not be missed" by those visiting the site.
In each case the Notice advised the user that use of the site bound the user to, and constituted acceptance of, the site's Terms and Conditions. Tickets.com had actual knowledge of this provision, including knowledge derived from its receipt of a letter from Ticketmaster apprising it of the same.
Use Of Website Can Create Binding Browse-wrap Contract
Seeking to halt Tickets.com's activities, Ticketmaster brought suit, charging that defendant's conduct constituted a breach of the site's Terms and Conditions, as well as an impermissible trespass to chattels, and copyright infringement.
On defendant's motion for summary judgment, the Court refused to dismiss plaintiff's breach of contract claim. Pointing to Register.com and Pollster v. Gigmania Ltd., 170 F.Supp.2d 974 (E.D. CA. 2000) the Court held that a contract can be formed by use of web site, provided the user, at the time of his use, has knowledge that the site's Terms and Conditions provide that such use constitutes an agreement to be so bound. Said the Court:
Because there was evidence that defendant used plaintiff's web site with knowledge of the site's Terms, the Court held that issues of fact precluded an award of summary judgment to Tickets.com dismissing plaintiff's breach of contract claim.
Use Of Spider To Copy Data From Ticketmaster's Site Not A Trespass To Chattel
The Court did grant so much of defendant's summary judgment motion which sought dismissal of plaintiff's trespass to chattels claim. Plaintiff argued that defendant's use of a spider to copy information from its website constituted a trespass to its chattel -- namely, its computer system. The Court dismissed this claim because of the absence of evidence that such activity caused injury to the chattel, a prerequisite to a trespass claim. Said the Court:
Copyright Infringement Claims Dismissed
The Court also granted defendant summary judgment, dismissing plaintiff's copyright infringement claims.
The Court held that the temporary copying of data from plaintiff's site for the purpose of extracting therefrom facts about events that were not protected by copyright, while immediately discarding the balance, was a protectable fair use. Said the Court:
The Court also held that the URLs of the individual event pages of plaintiff's web site were not protectable by copyright because they lacked sufficient originality. They are, instead, strictly functional, and constitute the location on the Internet of the web page on which the data is found. Said the Court:
Deep Linking Does Not Infringe Copyright
Finally, the Court held that in the circumstances of this case, deep linking from Tickets.com's web site to interior pages of plaintiff's site was not copyright infringement, as there was no showing or display thereby of plaintiff's copyrighted works. As noted above, these deep links were preceded by a notice advising the user that the link would take him to another's site, which site, in turn, was clearly labeled as belonging to plaintiff. Said the Court: