Advanced Copyright Issues on the Internet - Fenwick & West LLP

[H]yperlinking does not itself involve a violation of the <strong>Copyright</strong> Act (whateverit may do for other claims) since no copying is involved. The customer isautomatically transferred to the particular genuine web page of the originalauthor. There is no deception in what is happening. This is analogous to using alibrary’s card index to get reference to particular items, albeit faster and moreefficiently. 2118Five months later, the court issued another opinion that denied a motion for a preliminaryinjunction brought by Ticketmaster. With respect to the copyright claim, the court noted thatTicketmasters’ internal web pages were copied only temporarily, for 10-15 seconds, in thecourse of extracting the factual information from those pages, and the factual information wasthen presented by Tickets.com to its users in a different format from how that informationappeared on Ticketmasters’ site. 2119 The court ruled that the plaintiff was not entitled to apreliminary injunction on copyright grounds because the temporary copying for purposes ofextracting the factual information from Ticketmasters’ internal web pages was likely to be a fairuse. The court analogized to the Ninth Circuit’s decision in Sony Computer Entertainment, Inc.v. Connectix Corp., 2120 which the district court characterized as holding that copying for reverseengineering to obtain non-protectable information is permitted by the fair use doctrine in certaincircumstances. 2121 The district court observed:Reverse engineering to get at unprotected functional elements is not the sameprocess as used here but the analogy seems to apply. The copy is not usedcompetitively. It is destroyed after its limited function is done. It is used only tofacilitate obtaining non-protectable data – here the basic factual data. It may notbe the only way of obtaining that data (i.e., a thousand scriveners with pencil andpaper could do the job given time), but it is the most efficient way, not held to bean impediment in Connectix. 2122The court also rejected the plaintiff’s argument that the defendant’s copying of the URLsof the interior pages of the Ticketmasters site constituted infringement. “The court doubts thatthe material is protectable because the URL appears to contain functional and factual elementsonly and not original material.” 2123 Accordingly, the court ruled that, because Ticketmaster“agree” to them and were not immediately visible to users: “[T]he terms and conditions are set forth so that thecustomer needs to scroll down the home page to find and read them. Many customers instead are likely toproceed to the event page of interest rather than reading the ‘small print.’ It cannot be said that merely puttingthe terms and conditions in this fashion necessarily creates a contract with any one using the web site. Themotion is granted with leave to amend in case there are facts showing Tickets’ knowledge of them plus factsshowing implied agreement to them.” Id. at 1346.2118 Id. at 1346.2119 Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 12987 (C.D. Cal. Aug. 10, 2000), at *9-10.2120 203 F.3d 596 (9th Cir. 2000).2121 Tickets.com, 2000 U.S. Dist. LEXIS 12987 at *12.2122 Id. at *12-13.2123 Id. at *13.- 463 -