U.S. District Court Judge Harry L. Hupp denied Ticketmaster Online Citysearch’s motion for a preliminary injunction. The company
and Ticketmaster, a subsidiary of TMCS majority-owner USA Networks Inc.
, sought the injunction against Tickets.com
to prevent the company from deep linking to Ticketmaster.com and using spiders to extract information from the site.
Tickets.com, like Ticketmaster.com, is a provider of entertainment and sports tickets. It sells tickets through the Internet, retail outlets, call centers and interactive voice response systems. However, Tickets.com’s event lineup is much smaller than Ticketmaster.com’s. Its main business, according to Judge Hupp, “appears to operate as a clearing house to provide information as to where tickets to any event may be obtained.” When Tickets.com is not directly selling tickets for an event listed in its pages, it refers a user to an outside broker, often Ticketmaster.com.
However, until recently, Tickets.com referred users by deep linking, transferring a user to a page inside Ticketmaster.com’s site. Ticketmaster.com has argued that deep linking to an interior page harms it because users bypass the home page where most advertising is displayed. At one point, Ticketmaster.com blocked deep linking and all Tickets.com referrals were directed at the Ticketmaster.com home page. Ticketmaster.com said it has since lost the technical means of preventing deep linking and Tickets.com said it may soon resume the practice.
Also, much of the information on Tickets.com’s site is obtained by way of webcrawlers or spiders which extract the factual information (price, time, date, venue, etc.) from Ticketmaster.com’s pages and then place it on Tickets.com’s pages in Tickets.com’s format.
But in Monday’s ruling Judge Hupp said Ticketmaster.com had presented insufficient reasons for a preliminary injunction.
In the case of deep linking, the judge noted that Ticketmaster.com receives revenue from advertisers based on the number of hits on the page where the advertising is carried, whether on a home page or an interior page. Both the home page and interior pages carry ads. Also, all proceeds from ticket sales are kept by Ticketmaster.com.
Margaret Smith Kubiszyn, an attorney with Bradley, Arant, Rose & White LLP who specializes in hyperlinking law, said this particular case will probably not be the last word in the deep linking question. She noted that Tickets.com is a Ticketmaster competitor even if it sends sales Ticketmaster’s way.
“Even though Ticketmaster has most of the exclusive deals to offer tickets, Tickets.com could chip away at that by becoming the site that most users go to first, by having the most information,” she said. “Also, [Ticketmaster] does have valuable linking agreements with companies such as Microsoft. These agreements are obviously in danger if these companies feel they have free rein to deep link without such an agreement.”
As for the use of spiders, Judge Hupp said Ticketmaster.com had not shown sufficient need for an injunction in that area either.
“In the court’s opinion, there are two of [Ticketmaster.com]’s theories which demand serious consideration on this motion for preliminary injunction and which may well prove decisive at trial although the court does not now consider them sufficient for a preliminary injunction,” he wrote in his denial of the motion. “They are the copyright and trespass theories.”
Judge Hupp said that though Tickets.com undeniably copies electronic information from Ticketmaster.com, the copying is transitory and temporary and is not used direc
tly in competition with Ticketmaster.com.
“The primary star in the copyright sky for this case is that purely factual information may not be copyrighted,” Judge Hupp wrote. “Thus, the time, place, venue, price, etc., of public events are not protected by copyright even if great care and expense is expended in gathering the information. Thus, unfair as it may seem to [Ticketmaster.com], the basic facts that it gathers and publishes cannot be protected from copying.”
Also, the judge noted that the “fair use doctrine” holds that copying for reverse engineering to obtain non-protectable information is allowed in certain circumstances.
“It appears likely to the court that plaintiff’s odds on prevailing on the fair use doctrine at trial are sufficiently low that a preliminary injunction should not be granted even with the presumption of irreparable injury which goes with copyright infringement,” the judge wrote.
In the trespass issue, Judge Hupp ruled that Tickets.com’s spiders did not appear to harm Ticketmaster.com’s computers. Trespass requires harm to the item trespassed or obstruction of its basic function.
“[Ticketmaster.com] has presented statistics showing an estimate of the number of hits by [Tickets.com] spiders in its own computers and has presented rough comparisons with the total use of the computers by all users of the computers,” Judge Hupp wrote. “The comparative use by [Tickets.com] appears very small and there is no showing that the use interferes to any extent with the regular business of [Ticketmaster.com]. If it did, an injunction might well issue, but should not with a showing of lack of harm or any foreseeable harm.”
Daniel Harris, a partner with Brobeck, Phleger & Harrison, the firm representing Tickets.com, said the judge’s ruling was a big win for his client.
“You’re not going to be able to shut down the practice of collecting factual information on the Web simply because somebody uses an automated webcrawler. You have to look at the actual facts and determine if, in fact, it’s actually affecting the targeted Web site or not.”
But TMCS General Counsel Brad Serwin said Ticketmaster still expects to prevail at the summary judgment phase of the trial.
“This was only one motion in the course of a very long and complex lawsuit,” he said. “We continue to believe that today’s ruling is in conflict with the recent decision in the eBay case and the spirit of the Napster decision. We are nevertheless encouraged by the judge’s comments concerning the substance of our claims.”