Laws of .com

Volume V, Issue 17: October 25, 2007

U.S. Court of Appeal Rules that Sports Statistics are in the Public Domain

Ticketmaster Wins Injunction against Ticket Ordering Software Co.

New England Patriots Win Again against StubHub

Website Terms and Conditions Enforceable with Sufficient Notice

Identities of Anonymous Internet Posters at Stake in U.K. Cases

Domain Names Ordered Transferred Based on Trade-mark Confusion

Copyright Board Releases Tariff 22 Decision

U.S. Court of Appeal Rules that Sports Statistics are in the Public Domain

Fantasy sports leagues are a booming area in e-commerce, and the recent decision in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball should bolster the industry. Major League Baseball contended that it “owned” the statistics upon which fantasy sports leagues rely. Such online leagues use the real-life performance of athletes, who are selected by human participants. League players choose their favourites to form virtual teams. These virtual teams then compete with each other by tracking the selected athletes’ statistics.

The Court found that the statistics were nothing more than facts, and noted that there was a strong public interest in keeping these facts in the public domain. This, coupled with the Court’s ruling that the right to free speech trumps a celebrity’s right to control of his or her likeness, won the day for CBC.

For additional information, visit:
http://tinyurl.com/2mm3ox

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Ticketmaster Wins Injunction against Ticket Ordering Software Co.

Ticketmaster LLC has obtained a preliminary injunction against RMG Technologies Inc. prohibiting the software company from providing its ticket ordering software used to bombard Ticketmaster’s Website to beat out consumers. Ticketmaster sued Pittsburgh-based RMG in Federal Court in Los Angeles in August, 2007.

With the assistance of a former ticket broker and user of RMG’s product, Ticketmaster convinced a US District Court judge that RMG infringed Ticketmaster’s copyright and violated the Digital Millennium Copyright Act and the website’s terms of use. The software automates brokers to request 100s of tickets at a time. The software apparently also includes code to bypass order control mechanisms (e.g. type the code in the box tests) designed to verify that a human is placing the order.

Tickets for popular concerts often appear for re-sale at many times their face value at sites such as StubHub within minutes of going on-sale by Ticketmaster. The District Court judge concluded that RMG harmed Ticketmaster and the public because it denied consumers an opportunity to purchase the tickets at a fair price.

For additional information, visit:
http://tinyurl.com/36fgej

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New England Patriots Win Again against StubHub

The NFL’s New England Patriots have obtained a court order requiring StubHub (a popular website through which individuals can buy and sell tickets for sporting events, concerts, etc.) to deliver the names of all StubHub members who have bought or sold (or have tried to buy or sell) Patriots tickets. As a result, StubHub has turned over about 13,000 names to the Patriots.

The court order arises out of a lawsuit by the Patriots against StubHub claiming that the ticket-trading website encourages football fans to break state laws and violate team policies. The Patriots’ rules prohibit the resale of game tickets for profit, and this restriction is clearly printed on each ticket. A seldom-enforced state law also limits reselling tickets for more than a $2 mark-up. The Patriots claim that StubHub is inducing violations of these rules (Patriots tickets have been posted on StubHub for far more than face value).

StubHub resisted disclosing the requested information on the grounds that such disclosure would be a violation of StubHub’s confidentiality obligations to its members, and that the Patriots wanted the information to create a monopoly on the resale market for their tickets. However, the Superior Court Judge held that the Patriots have a “legitimate interest” in knowing the identity of those selling Patriots tickets through StubHub.

The Patriots have not yet stated what they plan to do with the 13,000 names. In the past, the Patriots have revoked tickets of fans who have attempted to resell the tickets on any Internet site other than the Patriots’ own site.

For additional information, visit:
http://www.siliconvalley.com/news/ci_7222132

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Website Terms and Conditions Enforceable with Sufficient Notice

A Texas District Court recently ruled, in a summary judgment, that the terms of a “browsewrap” license agreement are enforceable against a user of the website if sufficient notice is provided. In the federal case of Southwest Airlines Co. v. BoardFirst, L.L.C., Southwest, a Dallas-based domestic airline carrier, sought and obtained injunctive relief against BoardFirst, a company whose sole purpose was to secure certain Southwest boarding passes for customers that would entitle them to board their flight first. Southwest customers seeking such boarding passes would pay BoardFirst a fee and in return, BoardFirst would log on to the Southwest website and check in the customers at the appropriate time, allowing the customers access to the desired boarding passes.

In granting a permanent injunction in favour of Southwest, the court found that BoardFirst had violated the airline’s online terms and conditions of use, which stated that the website was only to be used for personal, non-commercial purposes. Evidence also indicated that sufficient notice of such terms was provided to BoardFirst, if not as a hyperlink at the bottom of the Southwest website, then when BoardFirst received a cease-and-desist letter from Southwest. As the court observed, “the validity of a browsewrap license turns on whether a website user has actual or constructive knowledge of a site’s terms and conditions prior to using the site.” BoardFirst, however, continued using the Southwest website following such notice, and was therefore bound by, and found to have violated, its online contractual obligations.

For a copy of the decision, visit:
Southwest Airlines Co. v. BoardFirst, L.L.C.

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Identities of Anonymous Internet Posters at Stake in U.K. Cases

A U.K. court has ordered the operator of a website for Sheffield Wednesday Football Club fans to disclose the identities of certain individuals who posted allegedly defamatory messages about the club’s owners and management. The claim was brought by Sheffield Wednesday Football Club Ltd, its directors and chief executive officer against the owner and operator of the website www.owlstalk.co.uk. The website requires users to register by providing an email address and password and to agree not to knowingly post false or defamatory material. The court refused to order disclosure of the identities of certain individuals whose postings the court considered were little more than abusive or were plainly intended as jokes, and restricted the disclosure order to postings which it considered alleged greed, selfishness, untrustworthiness and dishonest behaviour, for which the court found that the claimants’ right to protect their reputations outweighed the right of the authors to maintain anonymity.

In another recent U.K. case, a businessman admitted, just before he was due to be cross-examined, that he was responsible for an online smear campaign against a competitor. An article in the Guardian states that the postings went to considerable lengths to hide the identity of their authors, but lawyers for the other side amassed circumstantial evidence that the defendant was behind the website.

For a copy of the decision, visit:
Sheffield Wednesday Football Club Ltd. et al. v. Neil Hargreaves

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Domain Names Ordered Transferred Based on Trade-mark Confusion

The Canadian Internet Registration Authority (CIRA) recently released a dispute resolution decision regarding the use of two domain names, abelmed.ca and abeldent.ca. The complainant, ABELSoft Corporation of Burlington, Ontario has registered trade-marks in “ablemed” and “abledent” in relation to its office management computer products for medical and dental professionals. The registrant was an employee or officer of Antibex Software of Toronto, Ontario, which also sells computer software used in the management of medical practices. As the registrant did not file a response to the complaint, the panel based its decision on the complaint, and found that it met the onus on it under the CIRA Domain Name Dispute Resolution Policy, and ordered that the registration be transferred to the complainant. In assessing the three elements required to justify arriving at its decision, namely that the registrant’s domain names were confusingly similar with registered trade-marks, the registration had been in bad faith, and that the registrant had no legitimate interest in domain names, the panel noted that as there was “no other apparent explanation for the Registrant’s registration of these domain names, the Panel must conclude that the Registrant’s primary purpose was to disrupt the business of the Complainant.”

For a copy of the decision, visit:
http://cira.ca/en/dpr-decisions/00082-abelmed.ca.pdf

For a copy of CIRA’s Domain Name Dispute Resolution Policy, visit:
http://cira.ca/en/cat_dpr_policy.html

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Copyright Board Releases Tariff 22 Decision

On October 17, 2007, Canada’s Copyright Board released a partial decision on the Society of Authors, Composers and Music Publishers of Canada (SOCAN) proposed Tariff 22, which tariff is intended to capture online music downloading as “communication to the public by telecommunication of musical works by means of Internet transmissions or similar transmission facilities.” Numerous members of the telecommunications industry challenged the tariff.

The board’s decision determined the four main issues as follows:

1. The transmission of a download is a “communication to the public by telecommunication” under the Copyright Act, given that the transmission of a download over the Internet communicates the content of the download. Also, the content of a download is communicated when it is received, whether or not it is ever used. Lastly, even though some downloads cannot be heard during transmission, they are still being communicated.
2. Offering and listening to music previews falls under the fair dealing exception to copyright infringement, because the use of previews is to research a purchase before it is made. Even though some parties may abuse previews, the general purpose and policy is for research.
3. The tariff can be imposed retroactively to 1996, given that the original tariff targets all the uses that SOCAN seeks to include in the current tariff.
4. The tariff can apply to music downloading services where the servers are located outside of Canada if there is a real and substantial connection between the communication and Canada.

The decision only addresses online music uses and not any of the other uses mentioned in the tariff. They will be addressed at a later date.

Some commentators feel that the tariff is too high and will have a crippling effect on the distribution of digital content.

For a copy of the decision, visit:
http://www.cb-cda.gc.ca/decisions/m20071018-b.pdf

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