to the site; and (iii) that Microsoft’s presentation of information about Ticketmaster on its Seattle
Sidewalk site was commercial speech protected by the First Amendment.^3046
Microsoft and Ticketmaster ultimately reached a settlement in the lawsuit, pursuant to
which Microsoft was permitted to link to the Ticketmaster site, but not through links that
bypassed Ticketmaster’s home page.
- The Futuredontics Case
In Sept. of 1997, Futuredontics, Inc., owner of a website relating to its dental referral
service, filed a complaint against a defendant that was framing material from Futuredontics’
website in the defendant’s website.^3047 The frame displaying Futuredontics’ website material
included the defendant’s logo, information on the defendant, and links to the defendant’s other
web pages. Futuredontics claimed that such framing constituted the creation of an infringing
derivative 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 view
the information that Futuredontics itself placed on the Internet. The court denied the defendant’s
motion, ruling that existing authority did not resolve the legal issue, and Futuredontics’
complaint therefore sufficiently alleged a copyright infringement claim.^3048 Interestingly,
however, the court had previously denied Futuredontics’ motion for a preliminary injunction,
ruling that Futuredontics had failed to establish a probability of success.^3049
On July 23, 1998, in an unpublished opinion, the Ninth Circuit affirmed the district
court’s denial of the preliminary injunction.^3050 The Ninth Circuit found that Futuredontics had
presented no evidence whatsoever of tangible, let alone irreparable, harm from the defendant’s
framed link to its site. In addition, the Ninth Circuit ruled that “Futuredontics’ claim, that the
AAI framed link ‘falsely implies that AAI – not Futuredontics – is responsible for the success of
Futuredontics’s dental referral service’ even if true, is not tied to any tangible loss of business or
customer goodwill.”^3051
- The Bernstein Case
In Sept. of 1998, a California judge dismissed without comment a copyright infringement
lawsuit, Bernstein v. J.C. Penney, Inc.,^3052 in which the plaintiff, a professional photographer,
sought to hold liable several defendants who maintained links on their websites that eventually
(^3046) “Microsoft Answers Ticketmaster’s Charges of Electronic Piracy,” Andrews Computer & Online Industry
Litigation Reporter (July 1, 1997) at 24421.
(^3047) Futuredontics, Inc. v. Applied Anagramatics, Inc., 45 U.S.P.Q.2d 2005 (C.D. Cal. 1998).
(^3048) Id. at 2010.
(^3049) Id. at 2006.
(^3050) Futuredontics, Inc. v. Applied Anagramatics, Inc., 1998 U.S. App. LEXIS 17012 (9th Cir. July 23, 1998).
(^3051) Id. at *3.
(^3052) 50 U.S.P.Q.2d 1063 (C.D. Cal. 1998).