Advanced Copyright Issues on the Internet - Fenwick & West LLP

The defendants posted e-mail suggesting that the lawsuit against the defendants would beaffected by people logging into one of the linked websites and downloading the completeHandbook.In response to an e-mail stating that the sender had unsuccessfully tried to browse a websitecontaining the Handbook, the defendants gave further instruction on how to browse the material.At least one of the three linked websites encouraged the copying and posting of copies ofallegedly infringing material on other websites. 2114Accordingly, the court entered a preliminary injunction enjoining the defendants from,among other things, posting on their website the addresses of other websites that the defendantsknew, or had reason to know, contained the material alleged to infringe the plaintiff’scopyright. 21157. Ticketmaster v. Tickets.comTicketmaster Corporation operated the Ticketmaster web site, through which users couldpurchase tickets to various events such as concerts and ball games. On the Ticketmaster homepage there were instructions and a directory to subsequent pages (one per event) containing ashort description of the event, date, time, place, and price, and a description of how to ordertickets via the Internet, telephone, mail, or in person. The defendant, Tickets.com, operated asomewhat different ticketing service. Although Tickets.com sold some tickets to certain eventson its own, it provided information as to where and how tickets that it did not sell could bepurchased and a link that would take users to the appropriate ticket seller on line. Where theexclusive ticket broker was Ticketmaster, Tickets.com would deep link directly to the interiorweb page of Ticketmaster (bypassing the home page) for the particular event in question, wherethe customer could buy the tickets from Ticketmaster. 2116Ticketmaster alleged that Tickets.com committed copyright infringement by copying itsinterior web pages in order to extract the basic information on those pages, such as event, place,time, date, and price. (The extracted information was then placed in Tickets.com’s format on itsown interior web pages.) The court denied a motion by Tickets.com to dismiss the copyrightinfringement claim, ruling that, although the factual data contained on Ticketmasters’ internalpages could not be protected by copyright, the allegation of copying of Ticketmasters’ internalweb pages in order to extract that factual data was sufficient to state a valid claim for copyrightinfringement. 2117 The court went on to state, however, that hyperlinking by itself did notconstitute copyright infringement:2114 Intellectual Reserve at 1428.2115 Id. at 1429.2116 Ticketmaster Corp. v. Tickets.com Inc., 54 U.S.P.Q.2d 1344, 1345 (C.D. Cal. 2000).2117 Id. at 1345-46. The court granted, however, the defendant’s motion to dismiss the plaintiff’s breach of contractclaim, which was based on the “terms and conditions” for use of the Ticketmasters website. The courtapparently found that the terms and conditions were not enforceable because they did not require clicking to- 462 -