The motions to dismiss the First Amended Complaint (FAC) made by defendant Tickets.com, Inc., (hereafter Tickets) is granted with 10 days leave to amend as to claims 2 (breach of contract), 6 (misappropriation), 8 (trespass), and 9 (unjust enrichment). The motion is denied as to claims 1 (copyright infringement), 2 (federal unfair competition and reverse passing off), 4 (false advertising), 5 (state unfair business practices) and 10 (interference with business advantage). Defendant need not answer the claims not dismissed until either 10 days after a Second Amended complaint has bean filed or notice is given that such will not be filed.

Both parties have made reference to declarations filed in connection with the forthcoming motion for preliminary injunction. Such matters may not be properly considered on an FRCP 12(b)(6) motion to dismiss the complaint, which limits consideration to matters in the complaint and items of which the court may take judicial notice (none here). However, where an amended complaint has been filed, items pleaded or attached as exhibits to the original complaint may be considered to the extent they contradict assertions in the amended complaint.

The web site of plaintiffs Ticketmaster Corporation and Ticketmaster Online-CitySearch, Inc. (hereafter collectively, in the singular Ticketmaster) operates to allow customers to purchase tickets to various events (concerts, ball games, etc.) through an internet connection with its customers. On the Ticketmaster home page, there are instructions and a directory to subsequent pages (one per event). The event pages provide basic information (short description of the event, date, time, place, and price) and a description of how to order tickets by either internet response, telephone, mail, or in person. Each of these subsequent pages is identifiable with an electronic address. The home page further contains (if a customer scrolls to the bottom) "terms and conditions" which proscribe, among other things, copying for commercial use. However, the customer need not view the terms and conditions to proceed straight to the event page which interests him. Ticketmaster has exclusive agreements with the events it carries on its web pages so that tickets are not generally available to those events except through Ticketmaster (or reserved for sale by the event itself, or available from premium ticket brokers who generally charge higher than face value).

Tickets also operates a web site (Tickets.Com) which performs a somewhat different ticketing service. While Tickets does sell some tickets to certain events on its own, it also provides information as to where and how tickets which it does not sell may be purchased. A short factual description as to event, time, date, place and price is listed. Where Tickets does not itself sell the tickets, a place is given the customers co click for a reference to another ticket broker, or to another on-line ticket seller. Here is where the unique feature of this case -- hyperlinks or deep linking -- comes in. Where the exclusive ticket broker is Ticketmaster, and the customer clicks on "Buy this ticket from another on-line ticketing company", the customer is instantly transferred to the interior web page of Ticketmaster (bypassing the home page) for the particular event in question, where the customer may buy the tickets (from Ticketmaster, not Tickets) on-line. An explanation is generally given by Tickets as follows: "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 interior web page contains the Ticketmaster logo and the customer must know he is dealing with Ticketmaster, not Tickets.

In order to obtain the basic information on Ticketmaster events, Tickets is alleged to copy the interior web pages and extract the basic information (event, place, time, date and price) from them. That information is then placed in Tickets format on its own interior web pages. Tickets no longer (if it once did. as alleged) merely copies the Ticketmaster event page on its own event page. However, by the use of hyper-linking (i.e. electronic transfer to the particularly numbered interior web page of Ticketmaster), the customer is transferred directly to the Ticketmaster interior event page.

The motion to dismiss the first claim (copyright infringement) is denied because the complaint alleges actual copying. Plaintiff claims that the copying includes printing the factual information derived from the Ticketmaster interior web pages. The court does not accept this argument. A copyright may not be claimed to protect factual data ( Feist Publications ( '91 499 US 340, 113 LEd2d 358). While the expression, organization, placement, etc., of the factual data may be protected, Tickets is not alleged to have copied the method of presentation, but rather to have extracted the factual data and presented it in its own format. Where Tickets is alleged to have copied (¶ 35 of FAC) is in the making of thousands of copies taken from Ticketmaster's interior web pages for the purpose of extracting the factual data carried thereon and using it to publish its own version containing the factual data. Thus, copying is alleged (albeit not republication of protected material). Thus, the court rejects Ticketmaster's basic contention that it is copyright infringement to take basic facts from its publicly available web pages and use those facts (if the expression and method of presentation is not copied). Copying is alleged by transferring the event pages to Ticket's own computer to facilitate extraction of the facts. This is a very different case from merely copying for its customers the Ticketmaster event pages. This falls in the same category of taking historical facts from a work of reference and printing them in different expression. By a similar analogy, the hyperlink to the interior web page (whatever it may do for-the unfair competition or interference claims) does not allege copying.

Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently.

There is an ambiguity in the FAC which yet needs to be cleared up, although not involving a failure to state a claim. A federal court does not have jurisdiction of a copyright infringement claim until the copyright is registered (or refused registration). (In at least one circuit, application for registration is sufficient to confer jurisdiction.) In ¶ 26 of the FAC, it is alleged that the "Ticketmaster Web Site, including the Ticketmaster Event Pages, is subject to copyright owned by Ticketmaster Corp. The copyright of the Ticketmaster Web Site has been registered with the United States Copyright Office...." Exhibit F to the FAC shows that the title of the work copyrighted is "Ticketmaster.com Web Site II" and (later) "Ticketmaster.com Web site III" and that the nature of the authorship is "underlying source code." The event pages change from day to day as old events are dropped out and new ones are added. There is a possible ambiguity as to whether the copyright as registered covers not only the home page but also each of the event pages. Since the alleged copying is only of the event pages, there is still the question for further proceedings as to the court's jurisdiction over the claim of copyright infringement of the event pages.

The motion to dismiss the second claim (breach of contract) is founded on the "terms and conditions" set forth on the home page of the Ticketmaster site. This provides that anyone going beyond the home page agrees to the terms and conditions set forth, which include that the information is for personal use only, may not be used for commercial purposes, and no deep linking to the site is permitted. In defending this claim, Ticketmaster makes reference to the "shrink-wrap license" cases, where the packing on the outside of the CD stated that opening the package constitutes adherence to the license agreement (restricting republication) contained therein. This has been held to be enforceable. That is not the same as this case because the "shrink-wrap license agreement" is open and obvious and in fact hard to miss. Many web sites make you click on "agree" to the terms and conditions before going on, but Ticketmaster does not. Further, the terms and conditions are set forth so that the customer needs to scroll down the home page to find and read them. Many customers instead are likely to proceed to the event page of interest rather than reading the "small print." It cannot be said that merely putting the terms and conditions in this fashion necessarily creates a contract with anyone using the web site. The motion is granted with leave to amend in case there are facts showing Tickets' knowledge of them plus facts showing implied agreement to them.

The motion is denied as to the 3d, 4th, and 5th claims (passing off, reverse passing off, and false advertising). . .

This motion was argued and submitted 7/31/00, at which time the court took it under submission to consider certain of the points made in oral argument. It is now decided as follows. The tentative ruling previously issued should be disregarded.

The motion of Ticketmaster Corporation and Ticketmaster Online-Search, Inc. (hereafter collectively Ticketmaster or TM) for preliminary injunction against Tickets.Com, Inc. (hereafter T.Com) is denied.

This matter has taken some significant turns since the matter was last here on the motion to dismiss on March 27, 2000. Some of those differences affect consideration of the motion for preliminary injunction. One significant difference is that since the motion to dismiss, TM devised technical methods of blocking direct access by "deep hyperlinking" to TM interior pages. Thus, at the present time, when T.Com hyperlinks to TM, the references is to the TM home page, where the public accessing TM by internet normally starts. However, this may soon change, as discussed below, because TM has now lost the technical means of preventing deep hyperlinking directly to the event web pages. ...

A third change which the court considers irrelevant to the items to be considered on this motion for preliminary injunction is the filing of an anti-trust counterclaim by T.Com, accompanied by a flurry of documents (mostly press releases) apparently designed to show that TM has been gobbling up competitors and has generally been giving T.Com a competitive hard time in operating at a profit. While these may become important issues at the anti-trust phase of the case, they do not affect the copyright, Lanham Act, or unfair competition issues presented on this injunction motion.

The facts governing this preliminary injunction motion have partly been stated in the minute order of March 27 and will not all be repeated here. (In this respect, the court does not intend this to be a published opinion, but rather a minute order announcing a result, and as a result has not written for publication with the usual citation of excess authorities and other attention to grammatical or literary detail. In addition, no pronouncements of legal significance are intended; those come from the Court of Appeals. While the court cannot prevent publication, such is not done with the permission or desire of the court -- and also with the hope that any typos are corrected.)

The essential facts are that TM operates the largest ticket brokerage business in the country. It has exclusive arrangements to sell the tickets for many of the largest entertainment and athletic events in the country. It sells these tickets through a network of about 2900 retail ticket windows, over the telephone, and through the internet. The internet business is the focus of this case. TM maintains a "home" page (www.ticketmaster.Com) and has a separate "event" page for each separate event. The typical internet customer accesses the home page and is directed by a series of directories to the particular event page which lists in standardized fashion the basic information about the event (time, place, date, price, seating choices if relevant, and directions on how to order tickets by telephone or directly by interactive internet, presumably using credit cards and how to take delivery -- UPS, will-call, etc.). The internet business is an increasingly large portion of TM business; the latest figures show about 3,000,000 "hits" a day on the TM home page. TM has a large number of interior event pages which change with additions or modifications of about 35,000 pages per day. This is managed by a set of computers which assign each interior web page a unique electronic address (called a URL) which facilitates the user to reach the precise page for the event in which the user is interested. Aside from the revenue in selling tickets, TM also receives revenue from advertisers who pay based on the number of hits on the page where the advertisement is carried (this is apparently true both of the home page and the event page, since the examples attached show advertisements on both types of pages). The home and event pages carry TM logos, so that the customer cannot be confused by the business entity with which he or she is dealing. The home page contains a statement that the user agrees to the "terms and conditions" of use. One can scroll down to the terms and conditions, which provide, among other things, that use binds one to the terms and conditions, that any use is for the person use of the user, and that no commercial use can be made of the information provided. However, unlike certain other interactive internet programs (see eBay for an example), the user is not required to check an "I agree" box before proceeding to the interior web page wherein is located the information about the particular event in which he or she is interested.

T.Com operates in very different fashion. They do, indeed, have certain events in which the directly sell tickets, although very small in number compared to TM. However, their main business appears to operate as a clearing house to provide information as to where tickets to any event may be obtained. Thus, T.Com collects information on as many events as it can, providing its "customer" information on where the tickets may be purchased, whether from T.Com or another source. Where T.Com can sell the tickets itself, it does in a manner similar to TM (phone or internet). However, is also provides information on other sources from which tickets may be purchased. It maintains its own form of event page for each event, listing the basic information (price, date, time, etc.). For the vast number of TM events that it lists, it has a statements that tickets may only be purchased from another ticket broker (not naming TM), and provides a box to check which at the present time will take the user directly by hyperlink to the TM home page. (At the time of the motion to dismiss, the hyperlink took the user directly to the interior web page of TM for the event in question. In the interim, TM found the technical means of preventing this, so the user is now referred directly to the TM home page where he may start wending his way through the directories to the proper interior web page. However at oral argument, counsel inform the court that the technical method of blocking deep hyperlink reference directly to the TM event page is no longer applicable. T.com states that it may soon again start referring users directly to the TM event page by the use of deep hyperlinking.) Any ticket sale is made by TM. The proceeds are not shared by T.Com. T.Com also provides references and a telephone number or hyperlink to brokers who sell the tickets, some of which are auction sellers and some of which are "premium" ticket brokers, pejoratively known as "scalpers." T.Com makes money from advertisers, both on its home page and event page and from whatever ticket business in has of its own. The record does not reveal if it also makes a commission on sales by brokers to whom it refers customers, but not, of course, from TM.

The vast amount of information provided by T.Com on TM events comes from TM's computers, monitored by T.Com's computers. Since TM's computer information is open to the public, it is also available to T.Com. However, T.Com does not obtain the information in the same way as does the public (that is, by opening up an interior web page and reading the information off the screen), but rather by a sophisticated computer method of monitoring the thousands of interior TM web pages electronically by the use of a mysterious (to the court) devices known as a "webcrawlers" or "spiders"). The T.Com computers enter the TM computers electronically through the home page and make note of the URL's (electronic addresses) of the interior web pages. They then methodically extract the electronic information from the event page (containing the URL (electronic address of the event web page) price, time, date, place, etc.) and copy it temporarily (for 10-15 seconds) on its own computers. The T.Com programs then extract the purely factual information in the T.Com format on its own web pages. Except for the URL (discussed below), the copied TM web page (or, rather, the electronic signals which, if projected on the screen, would make up what the viewer sees on the screen) are then discarded and not used or retained for any other purpose. Thus, the viewer of the T.Com event web page sees only the T.Com version of the facts. The source of the facts are, of course, the TM event web pages. Now, to approach analysis of these facts from the standpoint of a preliminary injunction: The primary star in the copyright sky for this case is that purely factual information may not be copyrighted. (Feist Publications '91 499 US 340, 113 Led2d 358.)

Thus, the time, place, venue, price, etc., of public events are not protected by copyright even if great are and expense is expended in gathering the information (see the possibility of the "hot news" exception discussed below). Thus, unfair as it may seem to TM, the basic facts that it gathers and publishes cannot be protected from copying. To be sure, the manner of expression and format of presenting those facts is protectable, but T.Com has taken great care not to use the TM format and expression in publishing the facts that it takes from TM. This all goes back to a fundamental concept of copyright law that ideas and knowledge may not become the property of any one person even when that person has developed the idea or knowledge. What is protectable is the manner in which the idea or knowledge is expressed. Thus, Longfellow was free to take the famous facts of the ride of Paul Revere and tell the story in his own incomparable words -- no one can copy the words, but anyone may tell the story in his own words (if not as well). The major difficulty with many of plaintiff's theories and concepts is that it is attempting to find a way to protect its expensively developed basic information what it considers a competitor and it cannot do so.

In the court's opinion, there are two of TM'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. They are copyright and the trespass theories.

As to copyright, there is undeniably copying of the electronic bits which make up the TM event pages when projected on the screen. Except for the URL, the copying is transitory and temporary and is not used directly in competition with TM, but it is copying and it would violate the Copyright Act if not justified. The fact that irreparable injury is hard to see even with a magnifying glass would not prevent an injunction because of the doctrine that irreparable injury is presumed if there is copying. The copying is intentional and done for commercial purposes even if the copied material is not sold as that of the copier. The copying, as summarized above, takes place as a part of the process of taking the unprotectable) facts from TM's web sites so as to turn those facts into facts published by T.Com in its own format. At oral argument, counsel explained that by the nature of the way computers work, it is necessary to copy the electronic signals temporarily on the copying computer's RAM in order to extract the factual data present thereon. It is, therefore, a necessary part of the process by which T.Com efficiently takes basic facts from the TM websites, retains the electronic signals from TM on its own computer for a few second, during which T.Com's own computer program strips the signals of the basic facts, and then discards the copied electronic signals of TM as of no further use (except for the URL, discussed below). What prevents the issuance of a preliminary injunction on these facts is the "fair use" doctrine as recognized by the Ninth Circuit in Connectix Corp. 9Cir'00 203 F3d 596 and certain prior cases. Connectix holds that copying for reverse engineering to obtain non-protectable information is permitted by the fair use doctrine in certain circumstances (see also Acuff-Rose Music, Inc. 510 US 569, 127 Led2d 500). Reverse engineering to get at unprotected functional elements is not the same process as used here but the analogy seems to apply. The copy is not used competitively. It is destroyed after its limited function is done. It is used only to facilitate obtaining non-protectable data -- here the basic factual data. It may not be the only way of obtaining that data (i.e., a thousand scriveners with pencil and paper could do the job given time), but it is the most efficient way, not held to be an impediment in Connectix. TM makes the point that copying the URL (the electronic address to the web pages) which is not destroyed, but retained and used, is copying protected material. The court doubts that the material is protectable because the URL appears to contain functional and factual elements only and not original material. 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 other point dealing with copyright is the so-called "hot news" exception. As a basic exception to the rule that factual information is not protectable, an exception developed in the case of competing news organizations selling news to customers (newspapers) in competition with one another. Certain protections were allowed to prevent wholesale thievery of news by one organization from another. Here, it is suggested that at least some of the event news is "hot" -- that is, the event is sold out within hours or minutes of the tickets becoming available. This exception is not made out here. Even if such a hot event occurs (the court is informally informed that this is not rare) in a TM controlled event, the reference for ticket sales will be to TM, who sells the tickets in any event. Second, there is no showing that this situation occurs often enough to be of commercial significance.

Accordingly, a preliminary injunction will not be issued on the copyright aspects of the case. There could be a difference at trial, and the difference could depend on the necessity of downloading the electronic signals onto the T.Com computers for purposes of extracting the unprotected factual information.

. . .

The remaining contentions may be disposed of with fewer words. . . . The other claims appear to have no basis worthy of an injunction. Preliminary injunction denied.