DEEP LINKING:  THE PLOT THICKENS

August 2003 

 

There have been only a handful of cases to date involving copyright and the practice of deep linking on the web.  One case that has been closely watched is Ticketmaster v. Tickets.com, and in March 2003, the federal district court for the Central District of California granted a motion for summary judgment to Tickets.com on the copyright issues in the case.  The case is instructive and useful, especially for those in the for-profit sector, although it is likely that there will be additional litigation on the issue of deep linking, i.e., linking to an interior webpage on another website rather than linking to the front page.

Ticketmaster and Tickets.com are competitors in the business of selling tickets to various concerts, sporting events and other performances.  Ticketmaster is the largest of these companies and it sells tickets by four methods:  venue box office, through retail outlets, over the telephone and via the Internet.  Tickets.com, by contrast, sells tickets to events primarily over the Internet.  Both companies have webpages that describe each event and provide information such as location, date, time and ticket prices.  Each event described by Ticketmaster has its own page with a separate url for each.  Anyone who has the url may bypass its front page and go right to the page describing the event.  These interior pages have a telephone number by which an individual may order tickets for the event. 

Tickets.com used a spider to review Ticketmaster’s internal webpages, and for over two years, it extracted the factual information from these webpages and posted it on Tickets.com’s own webpage.  A spider or crawler is an electronic program that automatically searches through webpages, extracts needed information and places it on another website.  The factual information that the spider extracted consisted of event, date, time, ticket prices and url.  TheTickets.com pages included a deep linking option to go directly from its website to the relevant Ticketmaster interior webpage, but this practice ceased in early 2000.  Ticketmaster sued for copyright infringement and breach of contract.[1] 

The court noted that there were actually three separate copyright issues involved:  (1) whether the capturing of the electronic signals via the spider and the momentary residing on Tickets.com’s computers which are then used to form its webpages is actionable, (2) whether urls copied from Ticketmaster represents copyrighted material, and (3) whether the deep linking caused an unauthorized display of Ticketmaster’s webpages.  The court held on the first issue that using a spider to capture and temporarily download publicly available unprotected factual information concerning ticketed events was fair use.  On the issue of whether the copied urls constituted copyrighted materials, the court held that urls are simply a web address and are facts, and thus are not subject to copyright protection.

The deep linking issue is the one of particular concern, and the court discussed the 9th Circuit decision in Kelly v. Arriba Soft,[2] the visual search engine case, which found that in-line linking, i.e., framing, to photographs found on the plaintiff’s publicly available website was infringement.  Here, Ticketmaster alleges that when a user of the Tickets.com website clicked on the links to Ticketmaster’s website a smaller window was opened which was “framed” by the larger window.  The defendant maintained that whether framing occurred depended on how the individual user had the settings on her computer configured, and thus was beyond its control.  So, framing sometimes occurred but not always.  Moreover, the defendant was careful to identify Ticketmaster’s webpages as belonging to Ticketmaster.

The court held that if the Ticketmaster pages were framed within Tickets.com’s pages, the case was indistinguishable from Kelly, but here a user of the Tickets.com website was taken directly to a particular event page on the Tickemaster site.  Further each Ticketmaster page was clearly identified as belonging to it.  In fact, the link on Tickets.com contained this notice:  “Buy this ticket from another online ticketing company. Click here to buy tickets. These tickets are sold by another ticketing company. Although we can’t sell them to you, the link above will take you directly to the other company’s web site where you can purchase them.”  The court also granted summary judgment to Tickets.com even on the deep linking copyright claim holding that even if the Ticketmaster site was displayed as a smaller window and was thus framed on the Tickets.com website, it was not clear that as a matter of law such linking constituted a public display of Ticketmaster webpages and thus copyright infringement.

There is still a contract issue that will be litigated because of a notice that Ticketmaster had placed on its homepage stating that anyone who went beyond that point into an interior page of the website could do so only certain conditions, among them that the website was for personal use only and that the information it contained could not be used for commercial purposes.  The court found that it would have preferred it if the conditions detailed on the Ticketmaster website required the user to specifically assent to the conditions, for example, by click on an “I agree” button rather than just posting the notice on its front page.  Because Ticketmaster had also notified Tickets.com by a letter of these conditions, and despite the fact that Tickets.com replied by mail that it did not accept these conditions, the court refused to grant summary judgment on the contract issue.   Thus, the contract issue will be litigated.  It is also possible that the summary judgment order on the copyright claims could also be appealed.

 


[1]           There was also a claim for trespass to chattel on which the court granted summary judgment to Tickets.com, but that claim i