Advanced Copyright Issues on the Internet - Fenwick & West LLP

web pages from the site in the RAM of its computers, which copies the court held, citing MAI v.Peak, fell within the <strong>Copyright</strong> Act’s definition of “copy.” The court found such copyingunauthorized because it violated the Terms of Use posted on Ticketmaster’s site, whichprohibited use of any areas of the site for commercial purposes and use of any automated devicesto search the site. 1123The court rejected the defendant’s argument, based on Perfect 10 v. Google, that suchRAM copying should be deemed a fair use. The court distinguished that case on the ground thatthe Ninth Circuit had ruled only that automatic cache copies made by users who link toinfringing web sites should be deemed a fair use because, in that particular context, the cachingwas noncommercial, transformative and had a minimal impact on the potential market for theoriginal work. By contrast, in the instant case, the court ruled that the defendant was not an“innocent” third party visitor to another person’s infringing site. Instead, the purpose of thedefendant’s viewing the Ticketmaster web site and the copying that entailed was to engage inconduct that violated the site’s Terms of Use in furtherance of the defendant’s own commercialobjectives. 1124 “Furthermore, in this case, such copying has a significant, as opposed to minimal,effect on Plaintiff’s rights because Defendant’s conduct empowers its clients to also violate theTerms of Use, infringe on Plaintiff’s rights, and collectively cause Plaintiff” harm. 1125The court also found the defendant highly likely to be liable for contributoryinfringement because it had supplied a tool that enabled its users to gain unauthorized access anduse of the Ticketmaster site, thereby making infringing copies of web pages from the site, andhad also induced the infringing behavior by advertising its tool as “stealth technology [that] letsyou hide your IP address, so you never get blocked by Ticketmaster.” 1126(d) Parker v. Yahoo!, Inc.In Parker v. Yahoo!, Inc., 1127 the plaintiff, author of several works that he made freelyavailable on his web site, sued Yahoo and Microsoft for copyright infringement, alleging thattheir search engines created and republished unauthorized cached copies of his works based onthe fact that when an Internet user used either of the defendants’ search engines, the searchresults included hyperlinks to cached copies of the web pages responsive to the user’s inquiry.The user could view those search results either by following a hyperlink to the original web siteor by viewing the cached copy hosted on the defendants’ computers. The plaintiff conceded inhis complaint that the defendants each provided opt-out mechanisms, through the robots.txtprotocol, that would prevent his web sites from being cached, but that he had not made use ofthem. 11281123 Id. at 1105-09.1124 Id. at 1109-10.1125 Id. at 1110.1126 Id. at 1110-11 (emphasis in original).1127 2008 U.S. Dist. LEXIS 74512 (E.D. Pa. Sept. 26, 2008).1128 Id. at *1-2.- 260 -