Contract - Not Copyright
By David Goldstein, Esq.
In Ticketmaster v. Tickets.com, 2003-1 Copr. L. Dec ¶ 28, 607 (C.D. Cal. 2003), Ticketmaster sued Tickets.com for appropriating information from Ticketmaster’s website. Tickets.com used an electronic “spider” to gather information about Ticketmaster events. The spider would find a relevant website, copy the contents onto random access memory, eliminate the material not in the public domain (such as Ticketmaster’s trademark and unique copy), and copy the material in the public domain (such as the date of concerts, the artist appearing at the concert, and the location, as well as prices and times of the event). Notably the court found that the copied content was not protected by copyright because it was not original to Ticketmaster. The only cause of action that survived was one based on contract.
The contract arose from a notice posted on Ticketmaster’s website. Ticketmaster placed a notice on the home page of its website warning that anyone going beyond that home page agreed to the Terms and Conditions of the website. Anyone using the web pages beyond the home page agreed that they were only going to use them for non-commercial uses. Ticketmaster claimed that Tickets.com breached a contract formed by clicking to go beyond the home page. That contract claim was the only one that survived a summary judgment.
The court rejected the notion that uniform resource locators (the website addresses) are copyrightable. It rejected the idea that the momentary copying of material on Ticketmaster’s website that qualified for copyright protection was a copyright violation. It reasoned that the momentary copying of such things as Ticketmaster’s logo and material unique to Ticketmaster into the computer random access memory and subsequent almost instantaneous erasure of that material was a fair use.
The decision is only by one of the many federal trial courts. More definitive law is yet to be written. The case, however, reinforces the counsel we have been offering to all of our clients: Use all of the means at your disposal to protect your website content.
We can assist you in drafting terms and conditions for website use and to provide the contractual protection the Ticketmaster court recognized for those clients who use their websites for business-to-business or business-to-consumer sales. We look forward to being of service.
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