Copyright Law and the Non-Exclusive Rights to 'Link' and 'Crawl'

In so ruling, the court limited the reach of earlier copyright and tort law decisions that specifically prohibited similar activities. At the same time, it left open the possibility that contract provisions that forbid behavior authorized under tort or copyright law may be enforceable.

Business Practices

Tickets.com and Ticketmaster operate competing Web sites that sell tickets to various sports, music and entertainment events. Through its exclusive contracts with event providers, Ticket- master purports to be the only Web site where users can obtain information about and purchase certain tickets. Tickets.com attempted to thwart this strategy in two ways. First, Tickets.com used an electronic 'spider' to gather information about Ticketmaster events. Upon finding a relevant Web site, the spider copied its content into the Random Access Memory (RAM) of Tickets.com's computers. After 10-15 seconds, Tickets.com extracted the factual information (event, date, time, ticket prices and URL) from the copied content and discarded the rest. Tickets.com then reported the factual information on its own Web pages, within its own format and advertising. To offer access to these events, Tickets.com also linked to Ticketmaster sale pages embedded within its Web site ('deep linking'). It pulled these pages onto Tickets.com pages ('inline linking'), allowing users to bypass advertising on Ticketmaster's pages. Tickets.com abandoned these practices in 2001 and has pursued its own exclusive contracts with event providers.

Crawling

Ticketmaster challenged several aspects of Tickets.com's 'crawling.' First, it claimed that the act of accessing Ticketmaster's Web sites amounted to a trespass to chattels because it interfered with the company's computers and servers. Next, it alleged that Tickets.com's temporary copies of Ticketmaster's Web pages infringed its copyrights in these Web pages. Finally, it claimed that Tickets.com breached the terms of a notice placed on Ticketmaster's home page restricting use of information to noncommercial uses only. Ruling on Tickets.com's summary judgment motion, the court dismissed all but the contracts claim.

In rejecting the trespass to chattels claim, the court specifically disagreed with previous decisions holding that the use of spiders on public Web sites to gather information creates an actionable trespass. In cases such as eBay, Inc. v. Bidder's Edge 100 F.Supp. 2d 1058 (C.D. Cal. 1990), district courts have held that the mere invasion of a Web site by a spider satisfied the harm requirement of a trespass to chattels action. Noting that these cases required the adaptation of 'the ancient common law action to the modern age,' the eBay, Inc. v. Bidder's Edge court stated that there was no trespass without the 'actual dispossession of the chattel for a substantial time.'

With respect to the copyright claim, the court carefully noted that much of the content copied by Tickets.com's spider was not copyrightable. Although the spider initially copied content that included Ticketmaster's copyrightable logos, format and advertising, the information extracted by Tickets.com contained only unprotectable facts, including performance and ticket information. The court analogized this temporary copying to the copying performed in the reverse engineering of software, declared as fair use under Sony Computer Entm't, Inc. v. Connectix Corp. 203 F.3d 596 (9th Cir. 2000). As in Connectix the court reasoned that Tickets.com needed to copy protectable expression in order to reach unprotected functional information. Even though there were other ways for Tickets.com to get the factual information, such as having a secretary manually go through Ticketmaster's Web sites, said the court, the momentary resting of the data should be considered fair use. Focusing only on use of the copyrightable discarded content, the court performed a cursory fair use analysis. Noting in particular that none of the copyrightable content appeared in Tickets.com's final product and that there was little market for the discarded copyrightable content, the court concluded that the spider's use of copyrighted content was fair.

The only claim that remained was Ticketmaster's contract claim. Ticketmaster had placed a notice on its home page that stated that anyone going beyond that point agreed to use the information only for noncommercial purposes. Citing the principle that assent may be manifested in different ways, including as specified by the offeror, the court refused to dismiss this claim. If the case goes forward, however, the court may have to address the copyright misuse question of whether or not Ticketmaster could legally contract away the right to perform activities otherwise authorized by copyright and tort law.

Linking

Ticketmaster also alleged that Tickets.com's practice of linking to Ticketmaster's sales Web sites infringed its copyrights in two ways. First, Ticketmaster claimed this action required Tickets.com to copy Ticketmaster's URLs into Tickets.com's computers, infringing on its exclusive right to copy. The court flatly rejected this claim of copyright infringement, holding that URLs, like street addresses, are simply functional, enabling a user to reach a destination. As such they are not sufficiently original to warrant copyright protection, said the court.

Ticketmaster also claimed that Tickets.com's linking of Ticketmaster's sites into its own site constituted a public display of Tickets.com's copyrighted Web site. Depending on the user's browser settings, Ticketmaster's page showed up either as an independent site or a smaller site framed by Tickets.com's larger site. The court found there to be no public display in either case. Veering somewhat into the trademark realm, the court distinguished Tickets.com's display from that at issue in Kelly v. Arribasoft 280 F. 3d 934 (9th Cir. 2002). The Ninth Circuit held there to be a public display, by virtue of the fact that Tickets.com clearly identified the source of the Web site as Ticketmaster, whereas in Kelly, no information about the originating Web site was provided. On this basis, it dismissed the two copyright claims against Tickets.com's practices of deep and inline linking.

Implications for E-commerce

While only one court's opinion, this decision is significant. It provides some assurance that copyright and tort law do not categorically prohibit the collection and aggregation of factual information tasks of significant value on the Internet. On the other hand, it leaves open the possibility that contract law can be used to control the use of content, factual or not. Whether this court or earlier ones are right on these issues is a matter to be decided by the appellate courts. For now, however, this decision should provide some additional breathing space to the linkers and crawlers in cyberspace.

One of the most important issues faced by commercial purveyors of content on the Internet is how to protect their content. Much coffee and ink have been spilled over the question of how copyright, contract and tort law may be marshaled to maximize protection (or may be circumvented to minimize it).

In a short but wide-ranging decision, the Central District of California has commented directly on this issue in Ticketmaster v. Tickets.com, a case challenging Tickets.com's practices of 'crawling' Ticketmaster's Web site and deep linking to some of its specific sites. Granting Tickets.com's summary judgment motion in part, the court dismissed Ticketmaster's copyright and trespass to chattels claims, but declined to rule on its breach of contract claim. The court had hinted it would so rule in its initial denial of Ticketmaster's preliminary injunction in 2000. Nevertheless, this decision is significant to those who wish to protect and those who wish to use content for at least three reasons.

First, the court held that two activities essential to the Internet ' crawling and linking ' did not offend copyright law, at least as Tickets.com performed them. Second, it decisively ruled on the copyright protectability of URLs, holding them uncopyrightable due to their lack of originality. Finally, by leaving the contract claim unresolved, it highlighted the importance of browse-wrap and other licenses to protect Internet content, whether copyrightable or not.

In so ruling, the court limited the reach of earlier copyright and tort law decisions that specifically prohibited similar activities. At the same time, it left open the possibility that contract provisions that forbid behavior authorized under tort or copyright law may be enforceable.

Business Practices

Tickets.com and Ticketmaster operate competing Web sites that sell tickets to various sports, music and entertainment events. Through its exclusive contracts with event providers, Ticket- master purports to be the only Web site where users can obtain information about and purchase certain tickets. Tickets.com attempted to thwart this strategy in two ways. First, Tickets.com used an electronic 'spider' to gather information about Ticketmaster events. Upon finding a relevant Web site, the spider copied its content into the Random Access Memory (RAM) of Tickets.com's computers. After 10-15 seconds, Tickets.com extracted the factual information (event, date, time, ticket prices and URL) from the copied content and discarded the rest. Tickets.com then reported the factual information on its own Web pages, within its own format and advertising. To offer access to these events, Tickets.com also linked to Ticketmaster sale pages embedded within its Web site ('deep linking'). It pulled these pages onto Tickets.com pages ('inline linking'), allowing users to bypass advertising on Ticketmaster's pages. Tickets.com abandoned these practices in 2001 and has pursued its own exclusive contracts with event providers.

Crawling

Ticketmaster challenged several aspects of Tickets.com's 'crawling.' First, it claimed that the act of accessing Ticketmaster's Web sites amounted to a trespass to chattels because it interfered with the company's computers and servers. Next, it alleged that Tickets.com's temporary copies of Ticketmaster's Web pages infringed its copyrights in these Web pages. Finally, it claimed that Tickets.com breached the terms of a notice placed on Ticketmaster's home page restricting use of information to noncommercial uses only. Ruling on Tickets.com's summary judgment motion, the court dismissed all but the contracts claim.

In rejecting the trespass to chattels claim, the court specifically disagreed with previous decisions holding that the use of spiders on public Web sites to gather information creates an actionable trespass. In cases such as eBay, Inc. v. Bidder's Edge 100 F.Supp. 2d 1058 (C.D. Cal. 1990), district courts have held that the mere invasion of a Web site by a spider satisfied the harm requirement of a trespass to chattels action. Noting that these cases required the adaptation of 'the ancient common law action to the modern age,' the eBay, Inc. v. Bidder's Edge court stated that there was no trespass without the 'actual dispossession of the chattel for a substantial time.'

With respect to the copyright claim, the court carefully noted that much of the content copied by Tickets.com's spider was not copyrightable. Although the spider initially copied content that included Ticketmaster's copyrightable logos, format and advertising, the information extracted by Tickets.com contained only unprotectable facts, including performance and ticket information. The court analogized this temporary copying to the copying performed in the reverse engineering of software, declared as fair use under Sony Computer Entm't, Inc. v. Connectix Corp. 203 F.3d 596 (9th Cir. 2000). As in Connectix the court reasoned that Tickets.com needed to copy protectable expression in order to reach unprotected functional information. Even though there were other ways for Tickets.com to get the factual information, such as having a secretary manually go through Ticketmaster's Web sites, said the court, the momentary resting of the data should be considered fair use. Focusing only on use of the copyrightable discarded content, the court performed a cursory fair use analysis. Noting in particular that none of the copyrightable content appeared in Tickets.com's final product and that there was little market for the discarded copyrightable content, the court concluded that the spider's use of copyrighted content was fair.

The only claim that remained was Ticketmaster's contract claim. Ticketmaster had placed a notice on its home page that stated that anyone going beyond that point agreed to use the information only for noncommercial purposes. Citing the principle that assent may be manifested in different ways, including as specified by the offeror, the court refused to dismiss this claim. If the case goes forward, however, the court may have to address the copyright misuse question of whether or not Ticketmaster could legally contract away the right to perform activities otherwise authorized by copyright and tort law.

Linking

Ticketmaster also alleged that Tickets.com's practice of linking to Ticketmaster's sales Web sites infringed its copyrights in two ways. First, Ticketmaster claimed this action required Tickets.com to copy Ticketmaster's URLs into Tickets.com's computers, infringing on its exclusive right to copy. The court flatly rejected this claim of copyright infringement, holding that URLs, like street addresses, are simply functional, enabling a user to reach a destination. As such they are not sufficiently original to warrant copyright protection, said the court.

Ticketmaster also claimed that Tickets.com's linking of Ticketmaster's sites into its own site constituted a public display of Tickets.com's copyrighted Web site. Depending on the user's browser settings, Ticketmaster's page showed up either as an independent site or a smaller site framed by Tickets.com's larger site. The court found there to be no public display in either case. Veering somewhat into the trademark realm, the court distinguished Tickets.com's display from that at issue in Kelly v. Arribasoft 280 F. 3d 934 (9th Cir. 2002). The Ninth Circuit held there to be a public display, by virtue of the fact that Tickets.com clearly identified the source of the Web site as Ticketmaster, whereas in Kelly, no information about the originating Web site was provided. On this basis, it dismissed the two copyright claims against Tickets.com's practices of deep and inline linking.

Implications for E-commerce

While only one court's opinion, this decision is significant. It provides some assurance that copyright and tort law do not categorically prohibit the collection and aggregation of factual information tasks of significant value on the Internet. On the other hand, it leaves open the possibility that contract law can be used to control the use of content, factual or not. Whether this court or earlier ones are right on these issues is a matter to be decided by the appellate courts. For now, however, this decision should provide some additional breathing space to the linkers and crawlers in cyberspace.