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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...

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Ticketmaster Corp., et al. v. Tickets.com, Inc.

2000 U.S. Dist. Lexis 12987 (C.D. Ca., August 10, 2000)

Court denies plaintiff's application to enjoin defendant from using spiders to copy factual information contained on plaintiff's web site. In so holding the court rejects plaintiff's claim that such spidering constitutes an improper trespass on plaintiff's computers, because the spidering neither harms plaintiff's computers, nor interferes with their use. The court also held that even though copies of plaintiff's materials were made during this spidering, this was likely to constitute a protected fair use akin to the copying permitted during the reverse engineering of a product.

Plaintiff Ticketmaster operates a web site at which it offers for sale tickets to various entertainment events. The home page of Ticketmaster's web site contains instructions for use of the site, and a directory of events for which tickets can be purchased. Links take the user from the home page to event pages, which contain information about a specific event, including a short description of the event, the date, time, location and price of tickets ("Event Information"), as well as instructions for purchasing tickets to that event. Ticketmaster earns revenues from the placement of advertisements on its web pages.

Defendant Tickets.com operates a web site on which it makes available for sale tickets to various events. The site also contains event pages which identify locations at which a user can purchase tickets to events for which Tickets.com does not sell tickets. These event pages, like those of Ticketmaster, contain Event Information.

Tickets.com's event pages often describe events for which Ticketmaster is the exclusive ticket outlet. These pages contain links to the Ticketmaster site for those interested in purchasing tickets. The links plainly advise the user that they will take him or her to a site operated by "another broker."

Much of the factual information found on these pages concerning Ticketmaster events is drawn directly from the Ticketmaster web site. More particularly, Tickets.com uses a spider to crawl the Ticketmaster site for information concerning events. The spider "methodically extract[s] the electronic information from the [Ticketmaster] event page ... and cop[ies] it temporarily (for 10-15 seconds) on its own computers. The [Tickets.com] programs then extract the purely factual information in the [Tickets.com] format on its web pages." The "copied" Ticketmaster web page is then destroyed, and the information obtained displayed to the public in the Tickets.com format.

Like Ticketmaster, Tickets.com also receives revenues from advertisements placed on its site.

Ticketmaster moved for a preliminary injunction, enjoining Tickets.com, inter alia, from continuing to gather information from the Ticketmaster site by use of spiders, as described above. Ticketmaster advanced two principal legal theories -- defendant's conduct constituted (a) copyright infringement by virtue of the temporary copy of plaintiff's web site created during the spidering process, described above, and (b) an unauthorized trespass on plaintiff's computers. The court found that plaintiff was not likely to prevail on the merits of either of these claims at trial, and denied plaintiff's application.

The court began its copyright analysis by noting that "purely factual information may not be copyrighted." As a result, the mere fact that Tickets.com copies factual Event Information from Ticketmaster's site does not constitute copyright infringement. Said the court:

The time, place, venue, price, etc. of public events are not protected by copyright even if great expense is expended in gathering the information ... Thus, unfair as it may seem to Ticketmaster, the basic facts that it gathers and publishes cannot be protected from copying. To be sure, the manner of expression and format of presenting those facts is protectable, but Tickets.com has taken great care not to use the Ticketmaster format and expression in publishing the facts it takes from Ticketmaster.

However, as set forth above, during the course of obtaining this factual information, Tickets.com creates a temporary copy of portions of Ticketmaster's web site. The court concluded that this copying is not likely to constitute a violation of the Copyright Act because it constituted a fair use of plaintiff's materials. In reaching this result, the court analogized to copying that occurs when a party is reverse engineering another's products. Under Connectix Corp., 203 F.3d 596 (9th Cir. 2000), "copying for reverse engineering to obtain non-protectable information is permitted by the fair use doctrine ...".

The court also found that plaintiff was unlikely to prevail on its trespass claim. "A basic element of trespass to chattels must be physical harm to the chattel (not present here) or some obstruction of its basic function (in the court's opinion not sufficiently shown here)." The court found that neither element was present in this case, and that plaintiff was unlikely to prevail on its trespass claim at trial. In reaching this conclusion, the court relied on its determination that Tickets.com's use of plaintiff's site was slight, and did not interfere with its operation. Moreover, while Tickets.com's actions may deprive plaintiff of some advertising revenue, it may also produce a benefit by referring customers seeking tickets to Ticketmaster.

Rejecting plaintiff's other arguments, the court denied plaintiff's application for a preliminary injunction.

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