Deep linking: the plot thickens

Information Outlook, August, 2003 by Laura Gasaway

To date, there have been only a handful of cases involving copyright and the practice of "deep linking" on the Web--that is, linking to an interior Web page on another website rather than to the front page.

One case that has been closely watched is Ticketmaster v. Tickets.com. In March 2003, the federal district court for the Central District of California granted a motion for summary judgment on the copyright issues in the case. The case is especially instructive for those in the for-profit sector, although litigation on this issue is likely in other sectors as well. Ticketmaster and Tickets.com are competitors in the business of selling tickets to concerts, sports events, and other performances. Ticketmaster, the larger company, sells tickets by four methods: from the venue box office, through retail outlets, over the telephone, and via the Internet. Tickets.com sells tickets primarily over the Internet. Both companies have websites that describe each event and provide information such as location, date, time, and ticket price. Each event described by Ticketmaster has its own page, with a separate URL. Thus, anyone who has the URL can bypass the Ticketmaster front page and go directly to the page describing the event. This interior page has a telephone number a person can call to order tickets for the event.

Tickets.com used a spider to review Ticketmaster's internal Web pages, and--for more than two years--it extracted information from the Ticketmaster Web pages and posted it on its own website. (A spider or crawler is an electronic program that automatically searches through Web pages, extracts information, and places it on another website.) The information that the Tickets.com spider extracted consisted of event, date, time, ticket prices, and URL. In addition, Tickets.com included a deep linking option to go directly from its website to the relevant Ticketmaster interior Web page. This practice ceased in early 2000, when Ticketmaster sued for copyright infringement and breach of contract. (1)

The court noted that three separate copyright issues were involved: (1) whether the capturing of Ticketmaster's electronic signals via the spider, their momentary residing on Tickets.com's computers, and their use to form Web pages is actionable; (2) whether URLs copied from Ticketmaster represent copyrighted material; and (3) whether the deep linking caused an unauthorized display of Ticketmaster's Web pages. The court held on the first issue that using a spider to capture and temporarily download unprotected, publicly available 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 Web addresses--they are facts and, thus, are not subject to copyright protection.

The deep linking issue is of particular concern. The court discussed the 9th Circuit decision in Kelly v. Arriba Soft (2), a visual search engine case that found that in-line linking (i.e., framing) to photographs 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 that was "framed" by the larger window. The defendant maintained that whether framing occurred depended on how the settings on the user's computer were configured and, thus, was beyond its control. So, framing sometimes occurred, but not always. Moreover, the defendant was careful to identify Ticketmaster's Web pages 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. However, in this case 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 website, where you can purchase them." The court granted a summary judgment to Tickets.com 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 Web pages and, thus, copyright infringement.

A contract issue remains to 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 under 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 said it would have preferred that the Ticketmaster website require the user to specifically assent to the conditions--for example, by clicking on an "I agree" button--rather than just posting the notice on its front page. Because Ticketmaster had notified Tickets.com by a letter of these conditions (and despite the fact that Tickets.com had replied by mail that it did not accept the conditions), the court refused to grant a summary judgment on the contract issue. Thus, the contract issue will be litigated. It is also possible that the summary judgment on the copyright claims could be appealed.