By Elizabeth Gardner, Web Week
May 5, 1997

Ticketmaster Corp. sued Microsoft last week in a lawsuit that questions the legality of the common Web practice of providing a link to someone else's site without first asking for permission.

The dispute has arisen because of links on Microsoft's Seattle Sidewalk city guide site that direct people to Ticketmaster to buy tickets for ballgames, concerts, and other events.

Microsoft said that Ticketmaster should be happy to have the free advertising. But the ticket seller, which has a partnership with the CitySearch city guides site, accused the software giant of "electronic piracy." Observers versed in the legalities of the Internet (or the lack of them) agreed that the suit strikes at the heart of how the World Wide Web operates. They said the case, which has similarities to a few others now pending [see "Other Legal Wranglings Over Links," page 40], was at the forefront of Internet law, and they disagreed on Ticketmaster's chances of prevailing.

"It's been considered polite to ask permission for a link, or at least to notify a site that you're linking, but it hasn't been required," said Robert Cumbow, an intellectual property attorney with the Seattle firm Perkins & Coie, which represents many high-technology companies. "If it comes to be required, the whole Web experience may not be as viable." Jeff Kuester, an intellectual property attorney with the Atlanta firm of Thomas, Kayden, Horstemeyer & Risley, and proprietor of an extensive Web site on legal issues, does not recall ever having asked permission to link to any of the hundreds of sites listed on his pages. "The ability to link without permission is a very important and critical aspect of the World Wide Web," he said in an e-mail message.

"I am happy that Microsoft's wealth appears to be on the right side of this case," Kuester said. "While trademarks need to be protected on the Internet, linking is such a critical issue that if the court comes down on Ticketmaster's side, I truly hope it will be in a very limited context." Neither Microsoft nor any of the attorneys interviewed for this article had seen the actual complaint, filed April 28 in federal district court in Los Angeles.

In a statement, Ticketmaster said Microsoft was guilty of piracy primarily for linking to pages on the Ticketmaster site dedicated to specific venues and events, rather than to the company's home page.

Ticketmaster also said Microsoft had published what it called erroneous information about some of the details of the ticket seller's services.

Ticketmaster called the links "proprietary content" and said Microsoft is using the content to generate advertising revenue for Sidewalk.

"We have no issue with them linking to the home page--thousands of sites do that," said Alan Citron, senior vice president for multimedia at Ticketmaster, of Los Angeles.

Outside sites belonging to Ticketmaster clients are free to link to the pages that sell their own tickets (and this issue is now being addressed in Ticketmaster's client contracts), but the company wants third parties to come in through "the front door," Citron said.

In fact, most of the 38 current Ticketmaster links on the Sidewalk site do lead to the home page, though at least two--for the Mariners baseball team and the Seattle Repertory Theater--connect to the relevant page within the Ticketmaster site. Sidewalk general manager Frank Schott said last week that he had no plans to change the links.

Microsoft and Ticketmaster had previously attempted to put together a cross-marketing effort involving the Sidewalk city guides, but negotiations fell through, and Ticketmaster recently sealed a deal with CitySearch.

"I think Microsoft looks much worse for having tried to negotiate an agreement," said Michael Leventhal, a Los Angeles new-media attorney. "That makes the infringement intentional." Kuester, the Atlanta intellectual property lawyer, agreed. "The fact that both parties are businesses and prior negotiations existed may indeed make a difference, since Microsoft may have, through such prior negotiations, indirectly admitted that they needed permission." Dan Burk, a professor of law at Seton Hall University who has written extensively on trademark law and the Internet, said Ticketmaster might have difficulty establishing that Microsoft has diluted or exploited its trademark.

"The question here is whether Microsoft really is 'trading' on Ticketmaster's reputation-- after all, the purpose of the link is to send people to Ticketmaster and to give them more business," he said in an e-mail message.

"The Internet is challenging a lot of traditional notions of trademark law and pushing them to the max," said Sally Abel, a specialist in intellectual property and the Internet with Fenwick & West, Palo Alto, Calif. "I think this will cause an expansion of the trademark law notion of nominative fair use." Since Microsoft is using plain text, with no Ticketmaster logo, Abel said, the link might be analogous to one television station's using video clips on its newscast of an event for which another station is the "official" broadcaster--an example of "fair use" that's been upheld in court. "The court may rule on whether Microsoft needed to use this link to be a full-service site," she said. "Under fair use, you can use only as much as you need and no more." Microsoft's Schott said Sidewalk's use of the links is similar to a newspaper's inserting Ticketmaster's phone number into an event listing. "Most editors would say they wouldn't want to be constrained this way." There are several potential technical fixes that would block access from Sidewalk, or bump outside visitors to the home page automatically, but Citron said Ticketmaster doesn't want to do anything to impair the performance of the site and the ticket-buying experience. "The broader issue is, why should it be our responsibility?" Ticketmaster is aware that it's challenging a hallmark of Web culture, Citron said, but the Web has divided into business and non-business uses.

"It's naive to think the Web is going to remain unchanged," he said. "You can't take the touchy-feely rules that apply to the old Internet and apply them to the new Internet. There's no way the Internet is going to move forward without these issues being resolved."

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