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October 16, 2002  @867

 
 
 



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Ticketmaster Gets Setback In "Deep-Linking" Suit
By Steven Bonisteel
August 16, 2000

Ticketmaster Online-Citysearch Inc. [NASDAQ:TMCS] said it has failed again in an attempt to obtain a preliminary injunction preventing another Web site from "deep linking" into its pages while a lawsuit over the issue unfolds in a California federal court.

This is the second time US District Court Judge Harry Hupp has rebuffed the company's attempt to keep Tickets.com, an aggregator of online information about entertainment and sporting events, from probing its database. However, the high-profile case hasn't gone entirely Tickets.com's way either.

In March, Hupp rejected Tickets.com's motions to have the case dismissed outright, giving Ticketmaster the green light to proceed on half of 10 claims made in the suit, including copyright infringement, unfair competition and reverse passing off, false advertising, state unfair business practices and interference with business advantage.

The judge also gave Ticketmaster permission to take another kick at the can by rewording four of the claims he rejected. The company followed up in April on two of those, filing new arguments for claims related to trespass and breach of contract.

While the case could be headed to trial without the preliminary injunction Ticketmaster was looking for, the company says it will soldier on.

"This was only one motion in the course of a very long and complex lawsuit," Ticketmaster lawyer Brad Serwin said in a statement. "We continue to believe that Tickets.com's spidering of our Web site and deep linking without authorization are violations of our terms of use, constitute an unlawful trespass on our personal property and result in Tickets.com unfairly using our intellectual property to build its business."

Debate over the case is complicated by differences of opinion over just what "deep linking" actually means. By some definitions, a deep link is simply a Web-page reference which transports someone clicking on the link to a location somewhere other than the target site's "home" page. Some Web publishers have objected to such links, but no US court has ever found the need to put an end to what many say is part of the foundation of the Web.

Indeed, in his first denial of a preliminary injunction in the Ticketmaster case, Judge Hupp said he didn't think that a mere hyperlink could constitute copyright infringement -- though he didn't rule out taking the effects of linking into consideration when weighing Ticketmaster's other claims.

But the Ticketmaster case is more complex than just hyperlinks, wherever they may point. Ticketmaster claims that Tickets.com uses search-engine-like "spider" technology to extract information about items for sale at Ticketmaster and then presents that data on its own site, imbedded in Tickets.com page compositions.

On that score, Ticketmaster says, its case is a lot like the legal battle online auction site eBay.com [NASDAQ:EBAY] is waging with auction aggregator Bidder's Edge Inc. -- a case in which eBay handily bagged a pre-trial injunction from another federal judge.

For now, that ruling has forced Bidder's Edge to stop spidering and extracting data from the eBay database. Instead, the company currently connects its users with eBay auctions by launching searches which open a new browser window and display the results on the eBay site itself.

Ironically, the current Bidder's Edge workaround matches definitions of innocuous forms of "deep linking."

Ticketmaster's Serwin said Judge Hupp's refusal to again grant a preliminary injunction "is in conflict with the recent decision in the eBay case....We are nevertheless encouraged by the judge's comments concerning the substance of our claims. We expect to prevail in this action at the summary judgment phase or at trial."

In his March ruling, Hupp said ordinary linking -- even deep linking -- couldn't contravene copyright laws because no copying was involved. He said he also had doubts as to whether extracting information on events and ticket availability from the Ticketmaster site and incorporating it on Tickets.com pages was an infringement, since it could be seen as simply reporting on factual data.

"In addition," he ruled at the time, "it is hard to see how entering a publicly available Web site could be called a trespass, since all are invited to enter."

The trespass claim -- one with which eBay appears to be making headway in its own case -- was one Ticketmaster was eager to restate in its amended complaint. In its case, eBay has argued that its Web site is not, in fact, open to all when it comes to spiders, since its terms of use prohibit such queries and it has instituted standard protocols -- such as directives in "robots.txt" files on its servers -- ordering search-engine spiders to stay away.

On the Ticketmaster site, a robots.txt file now indicates spidering is not allowed by any search engine, and a prominent warning atop the home page reads: "Use of this site is subject to the express terms and conditions. By continuing past this page, you expressly agree to be bound by those terms and conditions which prohibit commercial use of this site."

Tickets.com can be found online at: http://www.tickets.com/

Ticketmaster is at: http://www.ticketmaster.com/

Reported by Newsbytes.com, http://www.newsbytes.com
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