Website scraping claim survives Dastar defense

Cvent, Inc. v. Eventbrite, Inc., Case 1:10-cv-00481-LMB -IDD (E.D. Va. Sept. 15, 2010) Interesting case with a lot of different claims based fundamentally on Eventbrite's contractor "scraping" Cvent's online database. Eventbrite moved to dismiss everything but the copyright claims, and succeeded in kicking out the CFAA and similar Virginia state law claims, along with breach of contract claims, because Cvent's browsewrap terms of use were insufficient to bind Eventbrite. But the court reached a different conclusion on the Lanham Act claims, adding another case to the ever-growing pile of weird readings of Dastar. The court reasoned that the complaint "does not assert that Eventbrite has passed off its ideas as its own, but rather that Eventbrite has re-branded and re-packaged its product (the CSN venue database) and sold it as its own." The court admitted that the "tangible goods" language of Dastar was confusing, and "tends to suggest that electronic products are not covered by the Lanham Act," but the Court was trying to distinguish "goods and products offered for sale (which receive Lanham Act protection) from any 'idea, concept, or communication embodied in those goods' (which are protected only by copyright laws)" (citing Dastar, 539 U.S. at 37). So close! The Court was clear that repackaging Fox's DVDs as Dastar's own would violate §43(a), but also that-to avoid conflict with copyright law, among other things-if Dastar made its own copies (which it did), then §43(a) had nothing to say about that. By definition, Eventbrite's site (allegedly) contained Eventbrite's copies of Cvent's data. The product Eventbrite was offering was Eventbrite's copies, not Cvent's copies, and thus squarely within Dastar. Recall that one of the options Dastar rejected was to hold defendants liable only for exact or near-exact copying (wholesale appropriation), which is the same thing as saying that Dastar rejected holding defendants liable when the product they were selling was entirely copied. The court thought that Cvent's claim was based on Eventbrite's product-but to the extent that "product" means anything other than "data," it means "protectable expression," which gets us back to the copyright conflict the Dastar court managed by saying that §43(a) wasn't concerned with non-physical source. The court even spoke of the Lanham Act claim as an acceptable "alternative" to its copyright claim. Presumably, the court meant that there'd be a Lanham Act claim if all Eventbrite copied was unprotectable facts. It cited J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition 5 27:77.1 (2006) ("In many cases a Lanham Act false designation claim accompanies a copyright infringement claim in the complaint because it is unclear if the copyright is valid, is owned by this plaintiff, or is infringed. The Lanham Act claim is included as a back up in case the copyright claim fails."). But that highlights the reason that Dastar established its bright line: in many cases, there shouldn't be a backup claim. If you can't win a copyright claim because the only thing the defendant copied was uncopyrightable, whether because it's in the public domain or for some other reason, then you shouldn't be able to win a Lanham Act claim based only on that copying. If you could, then the Lanham Act would create exactly the illegitimate type of quasi-copyright Dastar rejected. To win a Lanham Act claim, you should have to show confusion as to source/sponsorship of the goods or false advertising. Anyway, this also allowed the unjust enrichment claim to survive.

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