Internet Ticket Sales

e-Businesses, by forming networks of season ticket holders and entering into contracts with entertainment venues, provide Internet customers with entry passes for concerts, sports and other spectator events.

Generally, Internet ticket providers are in the business of buying and selling tickets to such events above the face value of the ticket. Some people have equated such Internet ticket providers with ticket scalpers, and claim that they are acting unlawfully. In particular, some state anti-scalping laws have been applied to Internet ticketing transactions, resulting in criminal and civil sanctions. But the application of proper Internet notices and appropriate Web site access limitations may render such state anti-scalping laws moot.

Twenty-nine states have anti-scalping laws, including New Jersey, New York and Pennsylvania (see, N.J. Stat. Ann. 56:8-33, 56:8-34 (2005); N.Y. Arts & Cult. Aff. Law 25.03, 25.05 (2003); and Pa. Stat. Ann. tit. 18, 6910 (2004)). Anti-scalping statutes typically have restrictions on time, location, price and the types of events for which tickets may be sold. For example, under the New York Arts and Cultural Affairs Law, it is illegal to resell tickets “within one thousand five hundred feet of a place of entertainment having a permanent seating capacity in excess of five thousand persons.”

While traditional anti-scalping laws have been challenged, courts have consistently recognized the nuisances associated with ticket scalping, upholding anti-scalping legislation as being within the “police power” of the sovereign. However, because e-ticket sellers make their deals over the Internet, they do not pose the same types of nuisances associated with traditional ticket scalping. Thus, the application of the existing anti-scalping precedent may not be applicable to Internet ticket providers, such as the New York statute noted above.

Yet, in addition to eliminating the face-to-face nuisance associated with traditional scalpers, the anti-scalping statutes usually require licenses for ticket brokers to ensure acceptable business practices, including the payment of taxes. Such elements of existing anti-scalping statutes are equally applicable to traditional and Internet ticket providers.

Exemptions Exist Aplenty

Internet ticket providers, like traditional ticket resellers, may take advantage of exemptions in the statutes that regulate or prohibit scalping. The exemptions principally are implemented by allowing for authorized or licensed ticket agents. Ticketmaster and Ticketron are examples of authorized Internet ticket agents. As authorized agents of an event, these companies generally sell tickets through a contractual arrangement with the promoter. Additionally, rather than selling tickets at above face-value prices, authorized ticket agents by and large make their profit by receiving a percentage of the ticket price and adding a service charge, thus complying with anti-scalping statutes.

Ticket brokers, unlike authorized ticket agents, may sell tickets for greater than face value. Ticket brokers are required by statute to be licensed in states where they do business. To comply with the licensing requirements set forth in anti-scalping statutes, an Internet ticket broker must either obtain a license in each state that authorizes ticket brokers or employ blocking software that rejects offers to buy tickets from Internet buyers physically located in states where the Internet ticket broker is not licensed.

Internet blocking software may be manual or automatic. Tickets from Internet ticket brokers usually require prospective buyers to fill out a form on the Internet. This process will generally yield certain information about a potential buyer before the Internet ticket sales transaction is completed. Such information is used to “weed out” persons who reside in certain states with troublesome anti-scalping laws. The automatic software blocking relies on tables that associate specific Internet addresses with certain physical locations.

Internet ticket sellers may also take advantage of the travel-agent exemption found in some anti-scalping statutes. Some states, such as Florida, allow such exemptions to help promote tourism in the state. Internet travel agents may sell tickets in excess of the face value only if the ticket is part of an arrangement that includes travel or accommodations. Rather than employing any of the aforementioned exemptions, some Internet ticket sellers simply decline selling tickets into a state that prohibits ticket scalping.

Internet ticket auctions are another way that vendors provide tickets. An Internet ticket provider may simply ask for a bid for the available tickets. If the Internet ticket provider avoids asking for a price above the face value of the ticket, then the seller avoids an element necessary to violate anti-scalping laws. However, if the “bid” is displayed and that bid is greater than the face value of the ticket, such activity amounts to an invitation to make a higher bid in excess of the face value of the ticket, which is a violation of anti-scalping laws. So then, only blind auctions are completely immune from anti-scalping prosecution.

Will Notices, Disclaimers Protect?

Some Internet ticket sellers attempt to avoid liability by using a notice. In particular, they post disclaimers stating that the purchasers of the tickets are responsible for following the laws of the state in which they reside. Typically, they permit the resale of event tickets, as long as sellers abide by the applicable state and local laws of the place where the event is located.

Such a disclaimer might require the following:

• The location of the event (venue, city and state);
• The date of the event;
• The face value of the ticket; and
• That a third party has reviewed that transaction, and has certified that it complies with states' anti-scalping laws.

Those state laws are:

• Ala. Code 40-12-167 (2005);
• Ariz. Rev. Stat. 13-3718 (2004);
• Ark. Code Ann. 5-63-201 (2004);
• Cal. Penal Code 346 (2005);
• Conn. Gen. Stat. Ann. 53-289 (2001);
• Del. Code Ann. tit. 11, 918 (2005);
• Fla. Stat. Ann. 817.36 (2004);
• Ga. Code Ann. 10-1-310 (2004);
• Haw. Rev. Stat. Ann. 440-17 (2004);
• 720 Ill. Comp. Stat. 375/1-4 (2004);
• Ind. Code Ann. 25-9-1-26 (2004);
• Ky. Rev. Stat. Ann. 518.070 (2004);
• La. Rev. Stat. 4:1 (2004);
• Md. Code Ann., Bus. Reg. 4-318 (2005);
• Mass. Gen. Laws Ann. ch. 140, 185A, (2005);
• Mich. Comp. Laws Ann. 750.465 (2004);
• Minn. Stat. Ann. 609.805 (2004);
• Miss. Code Ann. 97-23-97 (2004);
• Mo. Ann. Stat. 578.395 (2004);
• N.J. Stat. Ann. 56:8-33 (2005);
• N.M. Stat. Ann. 30-46-1 (2005);
• N.Y. Arts & Cult. Aff. Law 25.03 (2003);
• N.C. Gen. Stat. 14-344 (2004);
• Ohio Rev. Code Ann. 715.48 (2005);
• Pa. Stat. Ann. tit. 18, 6910 (2004);
• R.I. Gen. Laws 5-22-26 (2004);
• S.C. Code Ann. 16-17-710 (2004);
• Va. Code Ann. 15.2-969 (2004); and
• Wis. Stat. Ann. 42.07 (2004).

A disclaimer will not protect the seller, however, if it can be shown that the Internet ticket providers knowingly or negligently facilitated unlawful ticket sales. Internet ticket resellers, then, would be wise to secure an indemnification from those actually selling the tickets, as well as an appropriate errors-and-omissions insurance policy.

State Authority To Prosecute

It is well established that an attorney general has clear authority to restrain illegal business practice by a local business in reaction to complaints from in-state and out-of-state residents, notwithstanding that these practices occur on the Internet. But will such efforts be fruitful?

Prior to the application of an anti-scalping statute, jurisdiction must first be exercised over the defendant before any action may proceed. Application of state long-arm statutes is one method of obtaining jurisdiction and enjoining Internet ticket providers liable for civil penalties ' as in the case of Inset v. Instruction Set, Inc., 937 F. Supp. 161 (D.Conn. 1996), where a Connecticut court had jurisdiction over a Massachusetts defendant for contacts made solely on the Internet, courts have found that a sufficient amount of Internet contact yields jurisdiction.

What amount, though, is sufficient in the case of Internet ticket providers?

In State v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn. App. 1997), the Minnesota attorney general brought an action seeking injunctive and declaratory relief for allegedly illegal Internet gambling. The court found that the defendant's Internet advertising resulted in sufficient minimum contacts as to purposefully avail itself of benefits of doing business in Minnesota, thus satisfying Minnesota's long-arm statute. This case illustrates that nearly all Internet advertising and activity can be considered sufficient to warrant the application of jurisdiction. That being the case, anti-scalping laws would likely be applied to Internet ticket providers.

The sure odds then, for Internet ticket providers and resellers: Don't simply roll the dice and assume that your Internet-based e-commerce activities are legal; instead, solicit advice from counsel that will ensure compliance with applicable state laws and that will make your enterprise a sure bet.

e-Businesses, by forming networks of season ticket holders and entering into contracts with entertainment venues, provide Internet customers with entry passes for concerts, sports and other spectator events.

Generally, Internet ticket providers are in the business of buying and selling tickets to such events above the face value of the ticket. Some people have equated such Internet ticket providers with ticket scalpers, and claim that they are acting unlawfully. In particular, some state anti-scalping laws have been applied to Internet ticketing transactions, resulting in criminal and civil sanctions. But the application of proper Internet notices and appropriate Web site access limitations may render such state anti-scalping laws moot.

Twenty-nine states have anti-scalping laws, including New Jersey, New York and Pennsylvania (see, N.J. Stat. Ann. 56:8-33, 56:8-34 (2005); N.Y. Arts & Cult. Aff. Law 25.03, 25.05 (2003); and Pa. Stat. Ann. tit. 18, 6910 (2004)). Anti-scalping statutes typically have restrictions on time, location, price and the types of events for which tickets may be sold. For example, under the New York Arts and Cultural Affairs Law, it is illegal to resell tickets “within one thousand five hundred feet of a place of entertainment having a permanent seating capacity in excess of five thousand persons.”

While traditional anti-scalping laws have been challenged, courts have consistently recognized the nuisances associated with ticket scalping, upholding anti-scalping legislation as being within the “police power” of the sovereign. However, because e-ticket sellers make their deals over the Internet, they do not pose the same types of nuisances associated with traditional ticket scalping. Thus, the application of the existing anti-scalping precedent may not be applicable to Internet ticket providers, such as the New York statute noted above.

Yet, in addition to eliminating the face-to-face nuisance associated with traditional scalpers, the anti-scalping statutes usually require licenses for ticket brokers to ensure acceptable business practices, including the payment of taxes. Such elements of existing anti-scalping statutes are equally applicable to traditional and Internet ticket providers.

Exemptions Exist Aplenty

Internet ticket providers, like traditional ticket resellers, may take advantage of exemptions in the statutes that regulate or prohibit scalping. The exemptions principally are implemented by allowing for authorized or licensed ticket agents. Ticketmaster and Ticketron are examples of authorized Internet ticket agents. As authorized agents of an event, these companies generally sell tickets through a contractual arrangement with the promoter. Additionally, rather than selling tickets at above face-value prices, authorized ticket agents by and large make their profit by receiving a percentage of the ticket price and adding a service charge, thus complying with anti-scalping statutes.

Ticket brokers, unlike authorized ticket agents, may sell tickets for greater than face value. Ticket brokers are required by statute to be licensed in states where they do business. To comply with the licensing requirements set forth in anti-scalping statutes, an Internet ticket broker must either obtain a license in each state that authorizes ticket brokers or employ blocking software that rejects offers to buy tickets from Internet buyers physically located in states where the Internet ticket broker is not licensed.

Internet blocking software may be manual or automatic. Tickets from Internet ticket brokers usually require prospective buyers to fill out a form on the Internet. This process will generally yield certain information about a potential buyer before the Internet ticket sales transaction is completed. Such information is used to “weed out” persons who reside in certain states with troublesome anti-scalping laws. The automatic software blocking relies on tables that associate specific Internet addresses with certain physical locations.

Internet ticket sellers may also take advantage of the travel-agent exemption found in some anti-scalping statutes. Some states, such as Florida, allow such exemptions to help promote tourism in the state. Internet travel agents may sell tickets in excess of the face value only if the ticket is part of an arrangement that includes travel or accommodations. Rather than employing any of the aforementioned exemptions, some Internet ticket sellers simply decline selling tickets into a state that prohibits ticket scalping.

Internet ticket auctions are another way that vendors provide tickets. An Internet ticket provider may simply ask for a bid for the available tickets. If the Internet ticket provider avoids asking for a price above the face value of the ticket, then the seller avoids an element necessary to violate anti-scalping laws. However, if the “bid” is displayed and that bid is greater than the face value of the ticket, such activity amounts to an invitation to make a higher bid in excess of the face value of the ticket, which is a violation of anti-scalping laws. So then, only blind auctions are completely immune from anti-scalping prosecution.

Will Notices, Disclaimers Protect?

Some Internet ticket sellers attempt to avoid liability by using a notice. In particular, they post disclaimers stating that the purchasers of the tickets are responsible for following the laws of the state in which they reside. Typically, they permit the resale of event tickets, as long as sellers abide by the applicable state and local laws of the place where the event is located.

Such a disclaimer might require the following:

• The location of the event (venue, city and state);
• The date of the event;
• The face value of the ticket; and
• That a third party has reviewed that transaction, and has certified that it complies with states' anti-scalping laws.

Those state laws are:

• Ala. Code 40-12-167 (2005);
• Ariz. Rev. Stat. 13-3718 (2004);
• Ark. Code Ann. 5-63-201 (2004);
• Cal. Penal Code 346 (2005);
• Conn. Gen. Stat. Ann. 53-289 (2001);
• Del. Code Ann. tit. 11, 918 (2005);
• Fla. Stat. Ann. 817.36 (2004);
• Ga. Code Ann. 10-1-310 (2004);
• Haw. Rev. Stat. Ann. 440-17 (2004);
• 720 Ill. Comp. Stat. 375/1-4 (2004);
• Ind. Code Ann. 25-9-1-26 (2004);
• Ky. Rev. Stat. Ann. 518.070 (2004);
• La. Rev. Stat. 4:1 (2004);
• Md. Code Ann., Bus. Reg. 4-318 (2005);
• Mass. Gen. Laws Ann. ch. 140, 185A, (2005);
• Mich. Comp. Laws Ann. 750.465 (2004);
• Minn. Stat. Ann. 609.805 (2004);
• Miss. Code Ann. 97-23-97 (2004);
• Mo. Ann. Stat. 578.395 (2004);
• N.J. Stat. Ann. 56:8-33 (2005);
• N.M. Stat. Ann. 30-46-1 (2005);
• N.Y. Arts & Cult. Aff. Law 25.03 (2003);
• N.C. Gen. Stat. 14-344 (2004);
• Ohio Rev. Code Ann. 715.48 (2005);
• Pa. Stat. Ann. tit. 18, 6910 (2004);
• R.I. Gen. Laws 5-22-26 (2004);
• S.C. Code Ann. 16-17-710 (2004);
• Va. Code Ann. 15.2-969 (2004); and
• Wis. Stat. Ann. 42.07 (2004).

A disclaimer will not protect the seller, however, if it can be shown that the Internet ticket providers knowingly or negligently facilitated unlawful ticket sales. Internet ticket resellers, then, would be wise to secure an indemnification from those actually selling the tickets, as well as an appropriate errors-and-omissions insurance policy.

State Authority To Prosecute

It is well established that an attorney general has clear authority to restrain illegal business practice by a local business in reaction to complaints from in-state and out-of-state residents, notwithstanding that these practices occur on the Internet. But will such efforts be fruitful?

Prior to the application of an anti-scalping statute, jurisdiction must first be exercised over the defendant before any action may proceed. Application of state long-arm statutes is one method of obtaining jurisdiction and enjoining Internet ticket providers liable for civil penalties ' as in the case of Inset v. Instruction Set, Inc. , 937 F. Supp. 161 (D.Conn. 1996), where a Connecticut court had jurisdiction over a Massachusetts defendant for contacts made solely on the Internet, courts have found that a sufficient amount of Internet contact yields jurisdiction.

What amount, though, is sufficient in the case of Internet ticket providers?

In State v. Granite Gate Resorts, Inc. , 568 N.W.2d 715 (Minn. App. 1997), the Minnesota attorney general brought an action seeking injunctive and declaratory relief for allegedly illegal Internet gambling. The court found that the defendant's Internet advertising resulted in sufficient minimum contacts as to purposefully avail itself of benefits of doing business in Minnesota, thus satisfying Minnesota's long-arm statute. This case illustrates that nearly all Internet advertising and activity can be considered sufficient to warrant the application of jurisdiction. That being the case, anti-scalping laws would likely be applied to Internet ticket providers.

The sure odds then, for Internet ticket providers and resellers: Don't simply roll the dice and assume that your Internet-based e-commerce activities are legal; instead, solicit advice from counsel that will ensure compliance with applicable state laws and that will make your enterprise a sure bet.