EBay has sued Bidder’s Edge, an auction aggregator, while Ticketmaster has targeted Tickets.com, which offers details about entertainment events and tickets. EBay Inc. v. Bidder’s Edge, Inc., CV9921200 (N.D. Cal., filed Dec. 10, 1999); Ticketmaster Corp. v. Tickets.com Inc., CV99-7654 (C.D. Cal., filed July 23, 1999). Both defendants are clearinghouses for data originating elsewhere, and both are accused of stealing that data to build their own businesses.
The methods Bidder’s Edge used are typical of those under attack. Bidder’s Edge coordinates information from over 170 auction sites. To do this, it uses two common Internet tools: robotic scripts (also known as "robots," "bots," "spiders" and "crawlers") and deep linking. Robotic scripts from Bidder’s Edge perform thousands of searches a day to maintain a database. The goal is to let would-be bidders perform a single search that yields timely and accurate information from all of those sites. That search produces links to various auctions, which, when clicked, bypass the auction site’s home page and "deep link" to the page where a bid may be placed. Tickets.com employs a similar process.
Although Bidder’s Edge and Tickets.com send customers to eBay and Ticketmaster, their activity remains unwelcome for many reasons. To begin with, the plaintiffs in these cases are the leaders in their markets. EBay is the pre-eminent auction site, with over 7 million registered users. Ticketmaster has exclusive rights to sell tickets to many of the country’s largest entertainment and sports events. Given their dominance and strong brands, the sites already top the list of places someone might go to find an auction or buy a ticket.
Enter Bidder’s Edge and Tickets.com, which present the plaintiffs’ offerings alongside those of their competitors. In this sense Bidder’s Edge and Tickets.com are indistinguishable from comparison-shopping services. While this in itself would not be actionable, eBay and Ticketmaster also complain about the burdens the automatic searches place on their servers, inaccuracies in the data and advertising revenues lost when users bypass their home pages.
If eBay and Ticketmaster cannot stop this activity, they at least want to be paid for it. This became clear in late 1999 when eBay issued an ultimatum to several auction aggregators: They could enter into a licensing agreement or find their robotic scripts blocked from eBay’s site. Some agreed. Others, including Bidder’s Edge, found ways around eBay’s countermeasures. Ticketmaster and Tickets.com have engaged in a similar game of high-tech cat-and-mouse as their dispute has unfolded.
In this way, aggregation and deep linking have produced two factions on the Internet. On one side are the proponents, including auction and price-comparison services, as well as search engines that rely on these techniques to help users navigate the Web. In the other camp are those who contend the information on their sites is protected property, even if it is freely available to the public. This group would prohibit aggregation and deep linking without licenses and compensation.
To date, no legal precedent has ended the impasse. But the 9th U.S. Circuit Court of Appeals soon will have the opportunity, thanks to conflicting district court rulings in the eBay and Ticketmaster cases.
In the first of these decisions, Judge Ronald M. Whyte of the Northern District of California accomplished what engineers could not when he enjoined Bidder’s Edge from using robotic scripts to search eBay. The injunction stemmed from eBay’s trespass claim, on the theory that Bidder’s Edge was making unauthorized use of eBay’s personal property in the form of its servers. That use consisted of inquiries and data transfers the servers had to process, although Bidder’s Edge initiated less than 2 percent of eBay’s 10 million daily electronic transactions.
The judge recognized that in the online context the Bidder’s Edge activity was insignificant. While sending an army of robots into a physical store to check prices might be disruptive, here the robotic scripts made fewer than two out of every hundred requests, and were invisible to eBay’s customers. Even so, Whyte observed, eBay does not consent to any unlicensed automated access. If he allowed Bidder’s Edge to continue, he reasoned, others would follow and eventually eBay’s system would be impaired. Whyte’s May injunction is on appeal to the 9th Circuit.
Meanwhile, in the Ticketmaster case, Judge Harry L. Hupp of the Central District of California reached the opposite conclusion. While a computer is tangible personal property conceivably subject to the trespass doctrine, Hupp found that Ticketmaster would have to show physical harm to its servers or obstruction of their basic function to prevail. For Hupp, the proof was in the statistics.
Because Tickets.com’s activity is comparatively small and does not interfere with the servers’ operation or Ticketmaster’s business, Hupp refused to speculate that "dozens or more parasites" might eventually commence additional searches to Ticketmaster’s detriment. At most, Ticketmaster showed that the Tickets.com conduct is a mixed blessing, with potential lost advertising revenue being offset by customer referrals. Accordingly, and notwithstanding his consideration of Whyte’s earlier ruling, Hupp deemed the evidence of trespass too tenuous to grant an injunction.
Beyond that, Hupp also rejected Ticketmaster’s copyright claim as a basis for injunctive relief — an analysis Whyte did not pursue in light of his trespass conclusions. Once again, according to Hupp, there was insufficient evidence to justify an injunction. While Tickets.com undeniably copies data through its automated searches, that data consists of unprotected facts.
In Feist Publications Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), the U.S. Supreme Court held that "the copyright in a factual compilation is thin," and that a purely functional selection and arrangement of facts is not an original work subject to protection. Hupp analogized Tickets.com’s techniques to reverse-engineering — a "fair use" endorsed by the 9th Circuit in Sony Computer Entertainment Corp. v. Connectix Corp., 203 F.3d 596 (2000). Hupp concluded that copying the time, place, venue and price of public events, as well as URLs — which he deemed equivalent to references in a library card catalog — does not infringe any copyright and could not support injunctive relief. Ticketmaster promptly appealed Hupp’s August decision.
In short, the district courts have served up contrary outcomes on virtually the same facts, and the 9th Circuit’s treatment of these issues will amount to landmark precedent on aggregation and deep linking. Assuming the cases do not settle, that court eventually will decide whether trespass to a computer system can occur in the absence of tangible physical harm or interference with normal operations. It also will determine whether the material being copied includes "original works," and if so, whether these practices fall within the fair use doctrine.
Until now, those engaging in aggregation and deep linking have had little assurance they would be endorsed by the courts. The outcome has been so uncertain that even Microsoft stopped linking to points within the Ticketmaster site as part of a 1999 settlement. With such behemoths backing down on the issue, less well-heeled netizens have had little choice but to exercise self-censorship. As at least one court has recognized, this may amount to the chilling of protected expression under the First Amendment. See American Civil Liberties Union of Georgia v. Miller, 43 U.S.P.Q. 2d 1356 (N.D. Ga. 1997).
The 9th Circuit’s analysis will go a long way toward resolving these issues, and may decide the future of aggregation and deep linking. If eBay and Ticketmaster succeed, Internet users could be in for a rude awakening. To avoid risking liability, price-comparison services, search engines and Web sites in general might henceforth link only to pre-licensed material, or to home pages that do not actually contain the information the user needs.