315 F. Supp. 3d 1147
C.D. Cal.2018Background
- Ticketmaster sued Prestige Entertainment West, Renaissance Ventures, Nicholas Lombardi, and Steven Lichtman for using automated bots to buy large volumes of tickets for resale, alleging multiple federal and state claims (copyright infringement, DMCA, CFAA, CDAFA, fraud, contract-related torts, etc.).
- Ticketmaster alleged Defendants used sophisticated techniques (colocation, CAPTCHA farms, token extraction) to bypass Ticketmaster's anti-bot measures and created thousands of fake accounts and hundreds of thousands of orders.
- Ticketmaster's Terms of Use prohibit use of automated tools, limit refreshes and page requests, and state that violating those provisions revokes any license to use the site.
- Ticketmaster sent an individualized cease-and-desist letter to Lombardi/Prestige in May 2015 outlining evidence and demanding cessation; Defendants allegedly continued using bots after receipt.
- The FAC alleges Bot Developers (Doe 7–8) directly copied Ticketmaster pages/code (downloads stored locally) to develop the bots; Ticketmaster pressed secondary liability against the named defendants for inducing/materially contributing to that infringement.
- The court denied Defendants’ motion to dismiss: it sustained copyright (direct and secondary), DMCA, CFAA, and certain CDAFA claims; refused to dismiss Doe defendants; and retained supplemental jurisdiction over state-law claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright (direct & secondary) — whether website pages/code are protected and were copied | Ticketmaster: its site (literal, non-literal, dynamic elements) is copyrightable; Bot Developers downloaded/stored pages/code to develop bots; named defendants induced/materially contributed to that infringement | Defendants: websites are not protectable as alleged; Ticketmaster failed to plead particular copied elements; any copying is licensed under the Terms of Use or is only a covenant breach (not infringement) | Court: website code and dynamic displays are protectable; pleadings plausibly infer copying (circumstantial "striking compatibility"); no license to reproduce shown; contributory infringement adequately pleaded — claim survives |
| DMCA — whether bots circumvented technological measures controlling access to copyrighted works | Ticketmaster: CAPTCHA and other measures control access to dynamic and literal copyrighted pages (e.g., ticket confirmation pages); bots circumvent those measures in violation of §1201(a)(1) | Defendants: Ticketmaster failed to identify copyrighted works that access controls protect | Court: CAPTCHA controls access to copyrighted dynamic and literal content (confirmation pages, code); circumvention claim adequately pleaded; DMCA claim survives |
| CFAA — whether defendants accessed without or exceeded authorization and alleged "loss" exceeds $5,000 | Ticketmaster: individualized cease-and-desist revoked authorization; continuing bot use after the Letter exceeded authorization; Ticketmaster incurred >$5,000 in costs (identification, mitigation, consultants) and defendants obtained information/items of value (tickets) | Defendants: use was limited to public site; mere Terms of Use violation cannot support CFAA liability; alleged losses not tied to interruption or impairment of systems | Court: distinguished Nosal; Letter functionally revoked permissions (analogous to Facebook v. Power Ventures); continued bot purchases exceeded authorized access; pleaded losses (costs to investigate/mitigate) satisfy CFAA in Ninth Circuit; CFAA claim survives |
| Doe defendants and service — whether unnamed Bot Developers may remain and be pursued | Ticketmaster: identities unknown but plausibly exist; needs discovery to identify and serve Bot Developers and additional purchasers; good cause for delay in service | Defendants: Doe pleading improper; Rule 4(m) dismissal required for lack of timely service | Court: Doe pleading permitted here (Local Rule); information deficit is good cause under Rule 4(m); denied dismissal and allowed discovery to identify Does |
| CDAFA — whether pleaded violations fall within statutory subsections | Ticketmaster: alleges multiple subsection violations (taking/copying data, providing means, unauthorized access) based on bots, Letter, and Bot Developers' downloads | Defendants: Ticketmaster failed to allege data alteration, disruption, or that Ticketmaster provides "computer services"; some claims mirror unsupported CFAA theories | Court: dismissed claims under subsections requiring data alteration or service disruption; sustained claims under subsections for taking/copying data (c)(2), providing means (c)(6), and unauthorized access (c)(7) — others dismissed for insufficient factual support |
Key Cases Cited
- Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (recognizes that copyright protects exclusive rights including reproduction)
- MDY Indus., LLC v. Blizzard Entm't, Inc., 629 F.3d 928 (9th Cir. 2010) (discusses copyrightability of software layers and when license violations can support infringement)
- Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (secondary liability: inducement and vicarious theories)
- Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013) (downloading and storing can infringe reproduction right)
- United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (CFAA: limitations on treating Terms of Use violations as exceeding authorized access)
- Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058 (9th Cir. 2016) (cease-and-desist can revoke authorization; continued access thereafter can violate CFAA and state analogues)
- A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (standards for direct and secondary copyright infringement)
- Feist Publ'ns, Inc. v. Rural Tel. Servs., 499 U.S. 340 (originality standard for copyright protection)
- Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140 (9th Cir. 2003) (registration presumptively establishes ownership)