Designer Skin LLC v. S & L Vitamins, Inc., et al.
Ticketmaster, LLC v. RMG Technologies, Inc., et al
507 F.Supp.2d 1096 (C.D. Ca., October 16, 2007)
This case arises out of the use of automated devices by ticket brokers and others to purchase tickets from plaintiff Ticketmaster, and thereby prevent the public from purchasing those tickets themselves.
Finally, the Court held that plaintiff Ticketmaster was likely to prevail on claims that defendant, by distributing its software application, violated the Digital Millennium Copyright Act, because it trafficked in a device designed both to circumvent technological measures that control access to, and protect, a copyrighted work – namely plaintiff’s website.
The Court held that defendant’s conduct was likely to cause plaintiff irreparable injury. Because it constituted infringement of plaintiff’s copyright, such irreparable harm was presumed. In addition, plaintiff submitted evidence that the use of automated devices on its site by ticket brokers and others was injuring its reputation and good will with the public, who attributed their inability to obtain tickets to events to misdeeds in which plaintiff and its employees were involved.
As a result, the Court issued a preliminary injunction, enjoined defendant from further trafficking in or using its software application.
To prevent the use of such automated devices on the site, Ticketmaster employs a computer security device known as CAPTCHA. This technology displays to the site’s user a box with stylized random characters partially obscured behind hash marks. Before a ticket purchase can be made, the user must enter the random characters. Because most automated programs cannot decipher these characters, this technology assists in preventing third parties from using such automated devices to access the site.
RMG Markets Automated Device To Assist In Purchasing Tickets From Ticketmaster
Defendant RMG Technologies markets a software application known as the “Ticket Broker Acquisition Tool.” The Court held, on the evidence before it, that this was likely to be found to be an automated device that assists its user in obtaining tickets from, among other sources, Ticketmaster.com This finding was supported by evidence before the Court that several of defendant’s customers, from IP addresses assigned to defendant, had purchased large quantities of tickets, and had made large numbers of requests of tickets, in short time spans. Indeed, plaintiff submitted evidence that defendant advertised its products as “letting you do the work of a dozen people at once. Just enter the event information … and the moment the event goes on sale, Purchasemaster goes into action.”
In describing its product for this lawsuit, defendant stated it was a device ‘geared for the purchase of tickets from a variety of websites including … ticketmaster.com.’ In addition, defendant advertised its product as having ‘stealth technology [that] lets you hide your IP address, so you never get blocked by Ticketmaster.’
Defendant Likely Infringes Ticketmaster’s Copyright In Website
The Court held that a website can be protected by applicable copyright laws. Said the Court:
The Court further held that by viewing Ticketmaster’s site on a computer, defendant RMG had created a copy of that copyrighted work. Said the Court:
Defendant’s Use Exceeds License
Defendant Likely Guilty Of Contributory Copyright Infringement
The Court further held that plaintiff was likely to prevail on claims that defendant, by marketing its software applications, was guilty of contributory copyright infringement, as the software application could be used by third parties to infringe the copyright held by plaintiff in its website. “One infringes contributory by intentionally inducing or encouraging direct infringement …”. “One who distributes a device which the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Plaintiff was likely to establish that such was the case here, particularly given the fact that defendant had marketed its product as “stealth technology [that] lets you hide your IP address, so you can never get blocked by Ticketmaster.”
Violations Of The Digital Millennium Copyright Act
The Court further held that plaintiff was likely to prevail on its claims that defendant RMG, by marketing its software applications, was violating the Digital Millennium Copyright Act. The DMCA prohibits trafficking in devices designed to circumvent technological measures that effectively control access to a copyrighted work, 17 U.S.C. Section 1201(a)(2), and which protect the rights of a copyright owner under the Copyright Act, Section 1201(b)(1). The Court held plaintiff likely to prevail on its claims that, by marketing a product that enabled users to defeat the site’s CAPTCHA technology, the defendant ran afoul of these provisions of the DMCA. In reaching this result, the Court rejected defendant’s argument that the CAPTCHA was designed to regulate ticket sales, and not access to a copyrighted work. Because the user could not get to a copyrighted work – the ticket purchase webpage – without entering the characters as required by the CAPTCHA, the CAPTCHA protects access to a copyrighted work within the meaning of the DMCA.
Court Enjoins Further Distribution Of Defendant’s Software Application
The Court held that plaintiff had established that it would sustain irreparable injury if defendant was allowed to continue to market the software at issue. Where a copyright holder has a strong likelihood of success on the merits, irreparable injury is presumed.
In addition, plaintiff demonstrated that use of automated devices such as that at issue had injured its reputation and good will. The use of such devices permit ticket brokers, at the expense of the public, to obtain tickets to events. Plaintiff submitted evidence that consumers, upset with their inability to obtain tickets, believed that Ticketmaster and/or its employees were engaged in inappropriate conduct, and potentially colluding with ticket brokers to deny consumers tickets. Because defendant’s conduct likely contributed to this loss of goodwill, the Court held plaintiff had made the necessary showing of irreparable injury to obtain injunctive relief.
As a result, the Court issued a preliminary injunction, enjoining defendant RMG from further marketing or using the software applications at issue.