Advanced Copyright Issues on the Internet - Fenwick & West LLP

MasterCard prominence over any other credit cards in any advertising. Ticketmaster objected toMicrosoft’s use of Ticketmaster’s name in connection with MasterCard without givingMasterCard prominence. Ticketmaster also asserted that its name and trademark had beenburied by Microsoft in metatag code at Microsoft’s site in order to attract to Microsoft’sSidewalk websites Internet search engines and Internet users who were seeking informationabout tickets sold by and available through Ticketmaster. Ticketmaster alleged that this use ofits name and trademark in metatags improperly feathered Microsoft’s own nest at Ticketmaster’sexpense.Ticketmaster also asserted claims of copyright infringement, based on the allegations that(i) in creating links to the Ticketmaster site, Microsoft repeatedly viewed and thus copied ontoits own computers the copyrighted contents of Ticketmaster’s website, and (ii) in the operationof the links, Microsoft was reproducing, publicly distributing and displaying without permissionTicketmaster’s copyrighted website material.In Microsoft’s answer to Ticketmaster’s complaint, Microsoft alleged that Ticketmastercould not complain about Microsoft’s link to Ticketmaster’s home page because Ticketmasterknew when it set up its website that owners of other Web pages would create such links.Microsoft noted that when an event required tickets, Microsoft routinely provided informationabout how to obtain them, including prices, telephone numbers and, where appropriate, hypertextlinks to relevant Web pages. Microsoft alleged that such information was freely available to thepublic and was not proprietary to Ticketmaster. Microsoft asserted numerous defenses,including (i) that Ticketmaster, when it chose to set up Web pages, assumed the risk that otherswould use its name and URLs; (ii) that Ticketmaster was estopped from complaining aboutMicrosoft’s link because Ticketmaster encouraged users to seek out its website and refer othersto the site; and (iii) that Microsoft’s presentation of information about Ticketmaster on its SeattleSidewalk site was commercial speech protected by the First Amendment. 2100Microsoft and Ticketmaster ultimately reached a settlement in the lawsuit, pursuant towhich Microsoft was permitted to link to the Ticketmaster site, but not through links thatbypassed Ticketmaster’s home page.4. The Futuredontics CaseIn Sept. of 1997, Futuredontics, Inc., owner of a website relating to its dental referralservice, filed a complaint against a defendant that was framing material from Futuredontics’website in the defendant’s website. 2101 The frame displaying Futuredontics’ website materialincluded the defendant’s logo, information on the defendant, and links to the defendant’s otherweb pages. Futuredontics claimed that such framing constituted the creation of an infringingderivative work. The defendant moved to dismiss the complaint for failure to state a claim,arguing that its frame should be viewed as merely a “lens” which enabled Internet users to viewthe information that Futuredontics itself placed on the Internet. The court denied the defendant’s2100 “Microsoft Answers Ticketmaster’s Charges of Electronic Piracy,” Andrews Computer & Online IndustryLitigation Reporter (July 1, 1997) at 24421.2101 Futuredontics, Inc. v. Applied Anagramatics, Inc., 45 U.S.P.Q.2d 2005 (C.D. Cal. 1998).- 459 -