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But frequently, Ticketmaster has a critical advantage. For many performances, the Pasadena (Calif.) company is the only game in town. For example, Ticketmaster has an exclusive deal to sell online tickets for Metallica's "Summer Sanitarium Tour." To draw as many customers as possible, Tickets.com does something that many companies would find unimaginable: It links to its competitor's site to help people buy tickets for events that are only available through Ticketmaster. But first, consumers are generally shown a screen that says: "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." "UNCHARTED WATERS." This practice of "deep-linking" infuriates Ticketmaster. For one thing, consumers that reach the company's site from Tickets.com skip the Ticketmaster home screen. And that costs the site money, since Ticketmaster is paid by advertisers based, in part, upon the number of homepage hits. Last year, Ticketmaster filed suit in a Los Angeles federal court to stop Tickets.com from deep-linking to its site. But on Mar. 27, U.S. District Judge Harry L. Hupp issued a ruling dismissing several of the counts in Ticketmaster's complaint and taking a generally skeptical attitude toward the company's legal arguments. So far, Hupp's decision is the leading, and indeed the only, reported decision on the issue of deep-linking. As such, it has been widely scrutinized, since the issue of when Web sites can link up to other Web sites is one of the most profound legal issues on the Net. Many news reports have interpreted Hupp's decision as a green light for deep-linking. But as lawyers get a closer look at the case, the truth is turning out to be more subtle. The issue of deep-linking "is still uncharted waters," says Stuart D. Levi, a cyberlaw expert at New York's Skadden, Arps, Slate, Meagher & Flom. "I don't think you can say, based on this one case, that deep-linking is per se legal." TARGET FOR REVERSAL. For one thing, Hupp's opinion still leaves Ticketmaster with some grounds for suing Tickets.com. While Ticketmaster's copyright claim was tossed, the judge is still giving the company a chance to bring some of its other charges to trial -- for example, that Tickets.com violated California state laws against unfair competition. Moreover, many lawyers think that the ruling is a good target for reversal on appeal. "It is maybe the single worst written opinion I've ever seen," said one intellectual-property attorney at a major U.S. law firm. So where does that leave the issue of deep-linking? Most attorneys think that courts will wind up deeming the practice to be generally permissible. However, they also think there will be some circumstances where deep-linking is likely to be eventually outlawed. One of these situations is where the target Web site, on its "Terms and Conditions" page, clearly prohibits the practice. Had Ticketmaster prohibited deep-linking in its terms and conditions, and had all visitors to the site been forced to click a box indicating that they accepted these terms and conditions, then the case might have turned out differently, says Mark Grossman, a partner at Becker & Poliakoff in Miami. DIFFERENT OUTCOME? Another circumstance where deep-linking is likely to be prohibited is where the company doing the linking misleads consumers, says Margaret Smith Kubiszyn, an attorney at Bradley, Arant, Rose & White in Birmingham, Ala. In the Ticketmaster case, Tickets.com was very clear about the fact that users were being led to another Web site. But if that issue had been obscured, the case might have had a very different outcome, she says. "We'll probably see some more deep-linking cases, and I think issues as to...confusion of source will be coming up," she says. "If Tickets.com had not been so up-front about transferring into the Ticketmaster site, if it had been, like, 'Well, here's some information about how you can order the tickets from us,' there could have been some real fairness issues," she says. Bottom line: Companies should still be cautious about deep-linking to other sites. Over the long term, "deep-linking will be restricted," predicts Grossman. "You won't be able to do it if someone really doesn't want you to do it." France covers Legal Affairs for Business Week in New York. Have a question or a comment? Let him know at mike_france@ebiz.businessweek.com. |
