v. Connectix Corp.,^3066 which the district court characterized as holding that copying for reverse
engineering to obtain non-protectable information is permitted by the fair use doctrine in certain
circumstances.^3067 The district court observed:
Reverse engineering to get at unprotected functional elements is not the same
process as used here but the analogy seems to apply. The copy is not used
competitively. It is destroyed after its limited function is done. It is used only to
facilitate obtaining non-protectable data – here the basic factual data. It may not
be the only way of obtaining that data (i.e., a thousand scriveners with pencil and
paper could do the job given time), but it is the most efficient way, not held to be
an impediment in Connectix.^3068The court also rejected the plaintiff’s argument that the defendant’s copying of the URLs
of the interior pages of the Ticketmasters site constituted infringement. “The court doubts that
the material is protectable because the URL appears to contain functional and factual elements
only and not original material.”^3069 Accordingly, the court ruled that, because Ticketmaster
appeared unlikely to prevail on its copyright infringement claim, a preliminary injunction should
not issue.^3070
After nearly two additional years of litigation, Tickets.com brought a motion for
summary judgment on Ticketmaster’s copyright claims, which the court granted.^3071 In granting
summary judgment, the court ruled that the spider’s temporary copying of Ticketmaster’s web
pages into RAM in order to extract the factual information about events contained on those pages
constituted a fair use. “In temporarily downloading [Ticketmaster’s] event pages to its RAM
(^3066) 203 F.3d 596 (9th Cir. 2000).
(^3067) Tickets.com, 2000 U.S. Dist. LEXIS 12987 at 12.
(^3068) Id. at 12-13.
(^3069) Id. at 13.
(^3070) Id.
(^3071) Ticketmaster Corp. v. Tickets.com, Inc., 2003 U.S. Dist. LEXIS 6483 (C.D. Cal. Mar. 7, 2003). Tickets.com
also sought summary judgment on Ticketmaster’s contract claim, based on a notice placed on the home page of
the Ticketmaster site stating that anyone going beyond that point into the interior pages of the web site accepted
certain conditions, including that all information obtained from the site was for the personal use of the user and
could not be used for commercial purposes. The contract claim had been rejected as a basis for a preliminary
injunction in the court’s first opinion in 2000, because the notice was placed at the bottom of the home page so
that a user without an especially large screen would have to scroll down to read the conditions of use.
Subsequently, Ticketmaster moved the notice to a prominent place on the home page with a warning that
proceeding further bound the user to the conditions of use. Id. at 6-7. In addition, the court noted that
Ticketmaster had submitted evidence that Tickets.com was in fact fully familiar with the conditions
Ticketmaster claimed to impose on users, including a letter from Ticketmaster to Tickets.com which quoted the
conditions, and a reply by Tickets.com stating that it did not accept the conditions. The court denied
Tickets.com’s motion for summary judgment on the contract theory, noting that there was sufficient evidence to
defeat summary judgment on the contract theory if knowledge of the asserted conditions of use was had by
Tickets.com. Id. at 7-8. The court concluded that “a contract can be formed by proceeding into the interior
web pages after knowledge (or, in some cases, presumptive knowledge) of the conditions accepted when doing
so.” Id. at 9.