from the site in the RAM of its computers, which copies the court held, citing MAI v. Peak, fell
within the Copyright Act’s definition of “copy.” The court found such copying unauthorized
because it violated the Terms of Use posted on Ticketmaster’s site, which prohibited use of any
areas of the site for commercial purposes and use of any automated devices to search the site.^1570
The court rejected the defendant’s argument, based on Perfect 10 v. Google, that such
RAM copying should be deemed a fair use. The court distinguished that case on the ground that
the Ninth Circuit had ruled only that automatic cache copies made by users who link to
infringing web sites should be deemed a fair use because, in that particular context, the caching
was noncommercial, transformative and had a minimal impact on the potential market for the
original work. By contrast, in the instant case, the court ruled that the defendant was not an
“innocent” third party visitor to another person’s infringing site. Instead, the purpose of the
defendant’s viewing the Ticketmaster web site and the copying that entailed was to engage in
conduct that violated the site’s Terms of Use in furtherance of the defendant’s own commercial
objectives.^1571 “Furthermore, in this case, such copying has a significant, as opposed to minimal,
effect on Plaintiff’s rights because Defendant’s conduct empowers its clients to also violate the
Terms of Use, infringe on Plaintiff’s rights, and collectively cause Plaintiff” harm.^1572
The court also found the defendant highly likely to be liable for contributory
infringement because it had supplied a tool that enabled its users to gain unauthorized access and
use of the Ticketmaster site, thereby making infringing copies of web pages from the site, and
had also induced the infringing behavior by advertising its tool as “stealth technology [that] lets
you hide your IP address, so you never get blocked by Ticketmaster.”^1573
(d) Parker v. Yahoo!, Inc.In Parker v. Yahoo!, Inc.,^1574 the plaintiff, author of several works that he made freely
available on his web site, sued Yahoo and Microsoft for copyright infringement, alleging that
their search engines created and republished unauthorized cached copies of his works based on
the fact that when an Internet user used either of the defendants’ search engines, the search
results included hyperlinks to cached copies of the web pages responsive to the user’s inquiry.
The user could view those search results either by following a hyperlink to the original web site
or by viewing the cached copy hosted on the defendants’ computers. The plaintiff conceded in
his complaint that the defendants each provided opt-out mechanisms, through the robots.txt
protocol, that would prevent his web sites from being cached, but that he had not made use of
them.^1575
(^1570) Id. at 1105-09.
(^1571) Id. at 1109-10.
(^1572) Id. at 1110.
(^1573) Id. at 1110-11 (emphasis in original).
(^1574) 2008 U.S. Dist. LEXIS 74512 (E.D. Pa. Sept. 26, 2008).
(^1575) Id. at *1-2.