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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Ticketmaster Corp. v., 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's summary judgment motion, which sought dismissal of breach of contract claims arising out of'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'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'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'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, 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. Obtains Information From, And Deep Links To, Ticketmaster's Website 

Plaintiff Ticketmaster and defendant 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 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, 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." used the interior web page URLs it copied from plaintiff's site in creating these deep links.

Website's Terms Of Use

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. 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'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 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:

Use of a cruise ship ticket with a venue provision printed on the back commits one to the venue provided. . . .The principle has been applied to cases similar to this. . . .Thus . . . a contract can be formed by preceding into the interior web pages after knowledge (or, in some cases presumptive knowledge) of the conditions accepted when doing so.

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 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:

Pending appellate guidance, this Court comes down on the side of requiring some tangible interference with the use or operation of the computer being invaded by the spider.  Restatement (Second) of Torts § 219 requires a showing that "the chattel is impaired as to its condition quality, or value."  Therefore, unless there is actual dispossession of the chattel for a substantial time (not present here), the elements of the tort have not been made out.  Since the spider does not cause physical injury to the chattel, there must be some evidence that the use or utility of the computer (or computer network) being "spiderized" is adversely affected by the use of the spider.  No such evidence is presented here.  This Court respectfully disagrees with other District Courts' finding mere use of a spider to enter a publically available web site to gather information, without more, is sufficient to fulfill the harm requirement for trespass to chattels.

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 spider picks up the electronic symbols and loads them momentarily (for 10 to 15 seconds) into the RAM of the TX computers, where a program picks the factual data (not protected), places same into the TX format for its web pages, and immediately discards the balance, which may consist of TM logos, TM advertisements, TM format for presentation of the material, and other material which is copyrightable.  Thus, the actual copying (if it can be called that is momentary while the non- protected material, all open to the public, is extracted.  Is this momentary resting of the electronic symbols from which a TM web .page could be (but is not) constructed fair use where the purpose is to obtain nonprotected facts?  The Court thinks the answer is "yes".

*          *          *

This Court sees no public policy that would be served by restricting TX from using spiders to temporarily download TM's event pages in order to acquire the unprotected, publicly available factual event information.

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:

[Ticketmaster] contends that, although the URLs are strictly functional they are entitled to copyright protection because there are several ways to write the URL, and, thus, original authorship is used.  The Court disagrees.  A URL is simply an address, open to the public, like the street address of a building, which, if known, can enable the user to reach the building.  There is nothing sufficiently original to make the URL a copyrightable item, especially the way it is used.

Deep Linking Does Not Infringe Copyright

Finally, the Court held that in the circumstances of this case, deep linking from'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:

In this case, a user on the [] site was taken directly to the originating [Ticketmaster] site, containing all the elements of that particular [Ticketmaster] event page.  Each [Ticketmaster] event page clearly identified itself as belonging to [Ticketmaster].  Moreover, the link on the [] site to the [Ticketmaster] event page contained the following notice:  "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."  (2d Am. Compl. Ex. I) (emphasis in original)  Even if the [Ticketmaster] site may have been displayed as a smaller window that was literally "framed" by the larger [] window, it is not clear that, as matter of law, the linking to [Ticketmaster] event pages would constitute a showing or public display in violation of 17 U.S.C. § 106(5).  Accordingly, summary judgment is granted on the copyright claims of [Ticketmaster] and it is eliminated from this action.

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