through the use of spiders, [Tickets.com] was not exploiting [Ticketmaster’s] creative labors in
any way: its spiders gathered copyrightable and non-copyrightable information alike but then
immediately discarded the copyrighted material. It is unlikely that the spiders could have been
programmed to take only the factual information from the [Ticketmaster] web pages without
initially downloading the entire page.”^3072
The court also reaffirmed its earlier ruling on Ticketmaster’s preliminary injunction
motion that the URLs copied by Tickets.com to allow the deep linking were not copyrightable.
Ticketmaster contended that, although the URLs were functional, they should be entitled to
copyright protection because there were several ways to write the URL and, thus, original
authorship was present. The court rejected this argument. “A URL is simply an address, open to
the public, like the street address of a building, which, if known, can enable the user to reach the
building. There is nothing sufficiently original to make the URL a copyrightable item, especially
the way it is used.”^3073
Finally, the court ruled that Tickets.com’s deep linking did not cause an infringing public
display of the Ticketmaster event pages. The court distinguished the Ninth Circuit’s holding in
Kelly v. Arriba Soft Corp., discussed in Section II.C.2 above, by noting that in Kelly the
plaintiff’s images were framed by the defendant’s window and thus were surrounded by the
defendant web page’s text and advertising. In the instant case, whether or not framing occurred
depended upon the settings on the user’s computer, over which Tickets.com had no control, and
framing therefore occurred on some occasions but not on others. However, when users were
linked to the Ticketmaster web pages, the user of the Tickets.com site was taken directly to the
originating Ticketmaster site, containing all the elements of that particular Ticketmaster event
page, and the Ticketmaster event pages were clearly identified as belonging to Ticketmaster.
Moreover, the link on the Tickets.com site contained a notice stating “Buy this ticket from
another online ticketing company.”^3074 Accordingly, the court granted Tickets.com summary
ju dgment on Ticketmaster’s copyright claims.^3075
- The MP3Board Case
In this case, several RIAA member companies brought claims for contributory and
vicarious copyright infringement against MP3Board for operating a web site, located at
(^3072) Id. at 17-18.
(^3073) Id. at 20.
(^3074) Id. at 21-23.
(^3075) Ticketmaster also brought a trespass to chattels claim against Tickets.com based on Tickets.com’s spiders
unauthorized entry into the Ticketmaster site. The court granted Tickets.com summary judgment on this claim,
ruling that in order to establish a trespass to chattels claim, there must be some evidence of tangible interference
with the use or operation of the computer being invaded by the spider. “Since the spider does not cause
physical injury to the chattel, there must be some evidence that the use or utility of the computer (or computer
network) being ‘spiderized’ is adversely affected by the use of the spider. No such evidence is presented here.
This court respectfully disagrees with other district courts’ finding that mere use of a spider to enter a publicly
available web site to gather information, without more, is sufficient to fulfill the harm requirement for trespass
to chattels.” Id. at 12.