Ticketmaster Corp. v. Tickets.com, Inc.

Ticketmaster and Microsoft attempted to forge an agreement to allow Microsoft to have deep links to Ticketmaster.[6] After the talks reached a stalemate and without permission from Ticketmaster,[6] Microsoft used the deep links on its Sidewalk.com website,[6] a Seattle city guide that provided details about future events in the area.[7] Ticketmaster responded by banning incoming requests from the Microsoft links, and Microsoft countered the block by providing links to search engine queries that linked to Ticketmaster pages.[8]

In early 1997, Ticketmaster sued Microsoft because its Sidewalk.com website was linking to pages on Ticketmaster about particular events.[9][10] The lawsuit, Ashley Dunn wrote in The New York Times, "sent a shiver of anxiety through the online world since it struck at one of the most basic aspects of the Web – the freedom and openness of the hypertext link".[11] Calling Microsoft's deep linking "electronic piracy",[7] Ticketmaster argued that the practice circumvented Ticketmaster's homepage, which had paid advertisements, and led to fewer homepage visits. This could negatively impact Ticketmaster's page impressions-based advertising income. Ticketmaster further asserted that it had contracts permitting other websites to deep link to Ticketmaster; Microsoft's unauthorized deep linking therefore rendered the contracts effectively valueless.[12] In February 1999, Ticketmaster settled the deep linking lawsuit against Microsoft after Microsoft complied with the request to cease the linking.[13] The details of the settlement were subjected to a non-disclosure agreement.[14] After their settlement, Yahoo! and Knight-Ridder signed contracts with Ticketmaster and were given leave to make deep links to Ticketmaster.[15] The New York Times's Bob Tedeschi noted in August 1997 that the Ticketmaster–Microsoft deep-linking case was "closely watched by legal experts because no court has yet ruled on whether deep linking is legal".[9]

The legality of deep linking was the center of a fractious dispute among electronic commerce businesses. To compete for customers' consideration, a number of websites included hyperlinks to their competitors' pages, bringing users to inner pages of their opponents' websites. This practice circumvents the opponents' home page, which contains money-generating advertisements.[16] In 2000, Ticketmaster had signed numerous "exclusive arguments" with a large number of the major athletic and amusement organizations. The ticket business began shifting to the internet, leading to competition between Ticketmaster and Tickets.com.[16] Tickets.com allowed consumers to purchase tickets at their website. They had links to ticket-selling websites like Ticketmaster and Ticketweb to allow consumers to purchase tickets not sold on Tickets.com.[9] Tickets.com included the statement "These tickets are sold by another ticketing company" before each link to a different ticket-selling website. Whereas Tickets.com generates revenue through web advertisements, Ticketmaster received money through Internet ticket selling and advertisements founded upon how many visitors accessed its homepage.[17] Tickets.com employed a web crawler to systematically comb Ticketmaster's webpages and retrieve event details and uniform resource locators (URLs).[18][19] After obtaining the facts, the web crawlers would destroy in 15 seconds the webpage copies but retain the URLs. The lawsuit, scholars Teresa Scassa and Michael Eugene Deturbide wrote, were motivated by how Ticket.com was becoming the "choice portal" for consumers buying tickets on the web by taking advantage of Ticketmaster's content.[20]

On March 27, 2000, U.S. District Judge Harry Lindley Hupp ruled on Tickets.com's motion to dismiss.[14] He said that "deep linking by itself (i.e., without confusion of source)" does not necessarily involve unfair competition" under the following conditions: One, there is no confusion as to which website a consumer is accessing, and two, no pages are being duplicated by other websites.[16] He said that "Hyperlinking does not itself involve a violation of the Copyright Act. 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."[16][26] Just as the library's card index enabled users to locate copyrighted books, the hyperlinks enabled users to locate copyrighted webpages.[27]

The judge further ruled that Tickets.com was not legally obligated to abide by Ticketmaster's terms and conditions because they were not "open and obvious and in fact hard to miss".[28] The terms and conditions were located at the homepage's bottom and viewers did not have to assent to them to access the website.[29] Regarding the trespass to chattels claim, his decision noted that "it is hard to see how entering a publicly available Web site could be called a trespass, since all are invited to enter".[30] Furthermore, Ticket.com's combing of Ticketmaster's databases was a trivial percentage of Ticketmaster's overall traffic, leading to an insignificant effect on the website's response time.[18] Hupp found that possible negative effects of deep linking (the diminished advertising revenue) were equally matched by possible positive effects (the increased ticket sales from the referral of users wishing to purchase tickets from Tickets.com to Ticketmaster).[31]

On August 10, 2000, Hupp issued a decision on Ticketmaster's motion for a preliminary injunction against linking and spidering.[14] He ruled that the copyright violation claim was unfounded because "purely factual information", such as a public event's date, location, and cost, could not be copyrighted, regardless of the cost of time needed to aggregate the facts. He found that "the manner of expression and format of presenting those facts is protectable", and Tickets.com ensured to use their own expression and format to present the facts.[32] Basing his reasoning on Sony Computer Entertainment, Inc. v. Connectix Corp., Hupp wrote that Ticket.com's short-lived copies of Ticketmaster's webpages, which were used to obtain facts, was legal under the fair use doctrine of United States copyright law.[19][33] He called the duplication a type of "reverse engineering to obtain non-protectable information".[19] It passed legal muster under Sony Computer Entertainment because it was immediately removed after having served its purpose to retrieve non-copyrightable facts and was the ablest, albeit not sole, method to do so.[14] He also found that URLs were not copyrightable because they consisted of "functional and factual elements".[19]

In July 2001, Tickets.com ceased deep linking to Ticketmaster, instead focusing on its own ticket offerings. In their 2012 book Ticket Masters: The Rise of the Concert Industry and How the Public Got Scalped, Dean Budnick and Josh Baron reported that "the court refused to grant a preliminary injunction on the copyright issue, and although the lawsuit lingered for a few years, Ticketmaster never received a definitive judicial pronouncement in its favor".[34]

In a one-paragraph unpublished opinion, the United States Court of Appeals for the Ninth Circuit upheld Hupp's decision.[35]