…check out page 54 of the November 2007 issue.

Update: Here’s a link

Ticketmaster L.L.C. v. RMG Technologies, Inc., — F.Supp.2d —-, 2007 WL 2988403 (C. D. Cal. Oct. 15, 2007)

RMG Technologies developed an application that allowed its users to automatically access Ticketmaster.com to search for tickets and buy them up by the dozens. Ticketmaster sued RMG, alleging, among other things, copyright infringement, breach of contract, and violation of the anticircumvention provisions of the Digital Millennium Copyright Act found at 17 U.S.C. 1201.

Ticketmaster moved for preliminary injunction on several of the counts in the complaint, and the court granted the motion. It held that Ticketmaster was likely to succeed on its claims of copyright infringement, in that RMG’s access to the Ticketmaster website exceeded the scope of the license to do so granted by the site’s browsewrap agreement. The court also held that under Grokster, Ticketmaster was also likely to succeed in showing that RMG was indirectly liable for inducing infringement through the promotion of the application.

On the DMCA claim, Ticketmaster claimed that by providing the ability for users to get around the CAPTCHAs that have to be solved in order to purchase tickets, RMG trafficked in technology that circumvents a technological measure used to prevent access to a work protected by copyright. (CAPTCHAs are the little challenge-response tests that appear frequently on websites requiring login or authentication, used to help ensure that it’s really a human and not a bot trying to access the website.)

One of RMG’s primary arguments against the preliminary injunction on DMCA grounds was that the CAPTCHAs were not “technological measures” used to circumvent the access protection, but were merely images. The court rejected this argument, looking to the language of the DMCA which provides, in relevant part, that “a technological measure ‘effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.”

In this case, the court found that CAPTCHAS meet these criteria, because in their ordinary course of operation, they require the application of information before access to the work being protected is allowed.

Opinion appears below, or click through if it’s not showing up in the RSS feed:

Southwest Airlines Co. v. BoardFirst, LLC, No. 06-0891 (N.D. Tex. September 12, 2007)

Southwest Airlines does not have differentiated seating — one cannot get a better seat by paying more. Passengers are allowed to board based on a group classification they are assigned on a first come, first served basis. Passengers in the “A” group get to board first, while passengers in the “C” group go last. One can check in to be assigned to a group up to 24 hours before a flight by visiting Southwest’s Web site.

Boardfirst.com was a web-based company that Southwest passengers could pay to log in for them in hopes of obtaining “A” group passes. Southwest objected to this practice, however, and filed suit in a Texas federal court against Boardfirst alleging violation of the Southwest Web site’s terms of service. Southwest then moved for summary judgment on its breach of contract claim, and the court granted the motion.

The first issue before the court was whether the “browsewrap” terms of service on the Southwest Web site, visible upon clicking a hyperlink at the bottom of the home page, constituted a valid contract between Southwest and BoardFirst. Those terms of service, among other things, prohibited using the Southwest site for anything other than personal, non-commercial purposes.

The court held that a valid contract existed. Finding that the situation resembled the one in the case of Register.com v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004), the court held that the evidence showed BoardFirst had actual knowledge of the terms, which expressly prohibited use of the site for commercial purposes.

Next the court determined that BoardFirst had breached the terms of service by using the site for commercial purposes. It rejected BoardFirst’s argument that BoardFirst was an agent of the ticket purchasers and therefore not a prohibited third party accessing the site. The court also rejected BoardFirst’s argument that prohibiting “commercial” use of the website would mean that every access of the site — ostensibly resulting in Southwest’s commercial advantage — would constitute a breach of the terms of service.