on its own, it provided information as to where and how tickets that it did not sell could be
purchased and a link that would take users to the appropriate ticket seller on line. Where the
exclusive ticket broker was Ticketmaster, Tickets.com would deep link directly to the interior
web page of Ticketmaster (bypassing the home page) for the particular event in question, where
the customer could buy the tickets from Ticketmaster.^3062
Ticketmaster alleged that Tickets.com committed copyright infringement by copying its
interior 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 its
own interior web pages.) The court denied a motion by Tickets.com to dismiss the copyright
infringement claim, ruling that, although the factual data contained on Ticketmasters’ internal
pages could not be protected by copyright, the allegation of copying of Ticketmasters’ internal
web pages in order to extract that factual data was sufficient to state a valid claim for copyright
infringement.^3063 The court went on to state, however, that hyperlinking by itself did not
constitute copyright infringement:
[H]yperlinking does not itself involve a violation of the Copyright Act (whatever
it may do for other claims) since no copying is involved. The customer is
automatically transferred to the particular genuine web page of the original
author. There is no deception in what is happening. This is analogous to using a
library’s card index to get reference to particular items, albeit faster and more
efficiently.^3064Five months later, the court issued another opinion that denied a motion for a preliminary
injunction brought by Ticketmaster. With respect to the copyright claim, the court noted that
Ticketmasters’ internal web pages were copied only temporarily, for 10-15 seconds, in the
course of extracting the factual information from those pages, and the factual information was
then presented by Tickets.com to its users in a different format from how that information
appeared on Ticketmasters’ site.^3065 The court ruled that the plaintiff was not entitled to a
preliminary injunction on copyright grounds because the temporary copying for purposes of
extracting the factual information from Ticketmasters’ internal web pages was likely to be a fair
use. The court analogized to the Ninth Circuit’s decision in Sony Computer Entertainment, Inc.
(^3062) Ticketmaster Corp. v. Tickets.com Inc., 54 U.S.P.Q.2d 1344, 1345 (C.D. Cal. 2000).
(^3063) Id. at 1345-46. The court granted, however, the defendant’s motion to dismiss the plaintiff’s breach of contract
claim, which was based on the “terms and conditions” for use of the Ticketmasters website. The court
apparently found that the terms and conditions were not enforceable because they did not require clicking to
“agree” to them and were not immediately visible to users: “[T]he terms and conditions are set forth so that the
customer needs to scroll down the home page to find and read them. Many customers instead are likely to
proceed to the event page of interest rather than reading the ‘small print.’ It cannot be said that merely putting
the terms and conditions in this fashion necessarily creates a contract with any one using the web site. The
motion is granted with leave to amend in case there are facts showing Tickets’ knowledge of them plus facts
showing implied agreement to them.” Id. at 1346.
(^3064) Id. at 1346.
(^3065) Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 12987 at *9-10 (C.D. Cal. Aug. 10, 2000).