throbber
Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 1 of 26 PageID# 471
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`SEP I 4
`
`CLLRK US DISTRICT COURT
`A! F»HOK1A. VIRGINIA
`
`CVENT, INC.,
`
`Plaintiff,
`
`v.
`
`EVENTBRITE, INC., et al.,
`
`Defendants.
`
`)
`
`1:10-cv-00481 (LMB/IDD)
`
`MEMORANDUM OPINTON
`
`Before the Court is defendant Eventbrite's motion to dismiss
`
`several of the counts in the plaintiff's first amended complaint
`
`for failure to state a claim. For the reasons stated in open
`
`court and in this opinion, the defendant's motion will be granted
`
`in part and denied in part.
`
`I. Background
`
`This case arises out of the alleged intellectual property
`
`theft of data from plaintiff event's website by Eventbrite and an
`
`individual by the name of Stephan Foley, using a method known as
`
`"scraping." event, Inc. is a Delaware software company with its
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`principal place of business in McLean, Virginia, which licenses
`
`web-hosted software for use by companies and their meeting
`
`planners. event is the owner and operator of a website at
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`www.cvent.com, which, among other things, assists customers in
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 2 of 26 PageID# 472
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`locating venues for and organizing large-scale events. As part
`
`of that business, Cvent has created a web-based database of
`
`meeting venues around the world, called the Cvent Supplier
`
`Network, which includes detailed information about each venue,
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`such as the availability and capacity of meeting rooms and venue
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`amenities and services. Cvent has also undertaken development of
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`a "Destination Guide," an informational resource of city-specific
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`profiles designed for meeting and event planners. The complaint
`
`alleges that Cvent has invested substantial sums of money into
`
`developing its website, including the Cvent Supplier Network and
`
`the Destination Guide pages, and that it has obtained and
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`registered copyrights for its website, which are displayed on its
`
`website pages. Cvent currently holds three copyright
`
`registrations for its website content that are relevant to this
`
`case, each of which was filed in late April 2010.
`
`Defendant Eventbrite, Inc. is a Delaware corporation with
`
`its principal place of business in San Francisco, California,
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`which maintains an online event planning, sales, and registration
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`service hosted on its website, www.eventbrite.com. Cvent alleges
`
`that in September and October 2008, Eventbrite set out to create
`
`a set of pages (a "Venue Directory") on its website containing a
`
`collection of publicly available information about hotels,
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`restaurants, bars, and meeting venues in various cities. Most of
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`the information in Eventbrite's Venue Directory is publicly
`
`2
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 3 of 26 PageID# 473
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`available from the website of each hotel and restaurant. Cvent
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`alleges that rather than aggregating that information itself,
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`Eventbrite hired Stephan Foley, a computer engineer, to "scrape"
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`(i.e. copy) the information directly from event's website. Cvent
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`further alleges that Eventbrite then reformatted the material
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`into its own layouts and made it available on the Eventbrite
`
`website. Eventbrite compensated Foley in November 2008 for his
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`work in scraping the venue information from the Cvent website.
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`On May 10, 2010, Cvent filed a complaint against Eventbrite
`
`and unknown Does 1-10. On July 28, 2010, following expedited
`
`discovery as to the identities of Does 1-10, Cvent filed a first
`
`amended complaint, naming only Eventbrite and Stephan Foley as
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`defendants. The first amended complaint sets out eight claims
`
`for relief, on the following grounds:
`
`1. Copyright Infringement, 17 U.S.C. § 101 et seq.
`
`2. Violation of the Computer Fraud and Abuse Act, 18 U S C
`§ 1030
`'
`'
`'
`
`3. Violation of the Virginia Computer Crimes Act, Va Code
`Ann. § 18.2-152.3 et sea.
`
`4. Lanham Act "reverse passing off," 5 U.S.C. § 1125(a)
`
`the
`
`6. Unjust Enrichment
`
`7. Business Conspiracy, Va. Code Ann. § 18.2-499 et seq.
`
`8. Common Law Conspiracy
`
`3
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 4 of 26 PageID# 474
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`Cvent seeks a permanent injunction prohibiting defendants
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`from accessing its website without authorization and enjoining
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`defendants from copying, using, or creating derivative works from
`
`any Cvent website content. Plaintiff also requests an order
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`impounding and destroying all infringing copies of event's
`
`copyrighted works, along with an order directing Eventbrite to
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`engage in corrective advertising, and also seeks damages,
`
`interest, and attorneys fees in an amount exceeding $3,000,000.
`
`The requested damages include compensatory damages, lost profits,
`
`disgorgement of defendants' profits, statutory damages pursuant
`
`to the Copyright Act, treble damages pursuant to the Lanham Act
`
`and va. Code Ann. § 18.2-500, and exemplary damages not in excess
`
`of $350,000 because of defendants' willful and malicious conduct.
`
`On August 10, 2010, Eventbrite filed a Motion to Dismiss
`
`Claims Two through Eight of plaintiff's first amended complaint,
`
`pursuant to Fed. R. civ. P. 12(b) {6) , alleging that those claims
`
`are either barred, preempted by federal law, or otherwise fail to
`
`state a cause of action. Eventbrite further moves to strike
`
`event's prayers for attorneys' fees, statutory damages, punitive
`
`damages, and treble damages, arguing that those forms of relief
`
`are not available pursuant to event's first claim for relief
`
`(copyright infringement). in particular, Eventbrite argues that
`
`Cvent has not alleged any post-registration copyright
`
`infringement in its complaint, and that statutory damages and
`
`4
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 5 of 26 PageID# 475
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`attorneys' fees are therefore not appropriate under the Copyright
`
`Act.1
`
`II. Standard of Review
`
`Under Fed. R. civ. P. 12(b)(6), a complaint should not be
`
`dismissed "unless it appears certain that [plaintiff] can prove
`
`no set of facts that would support his claim and would entitle
`
`him to relief." Smith v. Sydnor. 184 F.3d 356, 361 (4th Cir.
`
`1999). The Court must accept all of the complaint's well-pleaded
`
`allegations as true and view them in a light most favorable to
`
`the plaintiff. Smith. 1184 F.3d at 361. However, that
`
`requirement applies only to facts, not to legal conclusions.
`
`Ashcroft v. Tghai., 129 S. Ct. 1937 (2009).
`
`A court need not
`
`accept legal conclusions drawn from the facts, nor must it accept
`
`unwarranted inferences or unreasonable conclusions. E. Shore
`
`Markets, Inc. v. J.D. Assocs. Ltd. P'ship. 213 F.3d 175, 180 (4th
`
`Cir. 2000). In addition, "if the well-pled facts do not permit
`
`the court to infer more than the mere possibility of misconduct,
`
`the complaint has alleged- but it has not lshow[n]'- that the
`
`pleader is entitled to relief. Igbal. 129 S. Ct. at 1950.
`
`"Factual allegations must be enough to raise a right of relief
`
`above the speculative level, on the assumption that all of the
`
`Defendant Foley has not joined in Eventbrite's motion to
`dismiss but has been granted an extension of time to file his
`answer, which is now due on September 17, 2010.
`
`

`
`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 6 of 26 PageID# 476
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`allegations in the complaint are true." Bell Atl. Corp. v
`
`Twombly, 550 U.S. 544, 555 (2007).
`
`III. Discussion
`
`The gravamen of event's complaint is, at its core, a
`
`claim for intellectual property theft and copyright infringement.
`
`Accordingly, Eventbrite does not move to dismiss plaintiff's
`
`Copyright Act claim (Claim One), nor could it plausibly do so
`
`under Fed. R. civ. P. 12(b)(6). However, plaintiff has also
`
`raised seven other claims premised upon state and federal law,
`
`both statutory and common law, all of which Eventbrite moves to
`
`dismiss.
`
`Eventbrite has moved to dismiss plaintiff's Virginia
`
`Computer Crimes Act (Claim Three), Lanham Act (Claim Four), and
`
`unjust enrichment (Claim Six) claims on the theory that they are
`
`all preempted by the federal Copyright Act. Eventbrite has also
`
`moved to dismiss plaintiff's Computer Fraud and Abuse Act (Claim
`
`Two), Breach of Contract (Claim Five), Business Conspiracy (Claim
`
`Seven), and Common Law (Claim Eight) claims on the grounds that,
`
`for various reasons, they each fail to state a legal claim upon
`
`which relief can be granted. Finally, Eventbrite moves to strike
`
`portions of plaintiff's prayer for relief. This Court will
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`consider each of Eventbrite's motions in turn.
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 7 of 26 PageID# 477
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`A. Claim Two: Computer Fraud and Abuse Act, IS U S C
`§ 1030
`
`Eventbrite moves to dismiss the Computer Fraud and Abuse Act
`
`(CFAA) claim on the ground that the CFAA only prohibits hacking
`
`or other unauthorized access to files, while the material that
`
`Eventbrite is alleged to have scraped from event's website is
`
`publicly available, and Eventbrite was thus authorized to access
`
`it.
`
`The CFAA is a civil and criminal anti-hacking statute
`
`designed to prohibit the use of hacking techniques to gain
`
`unauthorized access to electronic data. By its terms, the
`
`statute forbids "intentionally access[ing] a computer without
`
`authorization or exceed[ing] authorized access, and thereby
`
`obtain[ing] .
`
`.
`
`. information from any protected computer." is
`
`U.S.C. § 1030(a)(2). "Exceed[ing] authorized access" is
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`explicitly defined as "to access a computer with authorization
`
`and to use such access to obtain or alter information in the
`
`computer that the accessor is not entitled to obtain or alter."
`
`18 U.S.C. § 1030(e)(6). Eventbrite moves to dismiss this count
`
`on the ground that although Cvent may have pled facts giving rise
`
`to a plausible inference that defendants made an unauthorized use
`
`of the material on the Cvent website, the complaint does not
`
`allege sufficient facts to support a claim that defendants
`
`obtained unauthorized access to that information. Rather, the
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`data which Eventbrite is alleged to have stripped from event's
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 8 of 26 PageID# 478
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`website is publicly available on the Internet, without requiring
`
`any login, password, or other individualized grant of access. By
`
`definition, therefore, Eventbrite argues it could not have
`
`"exceeded" its authority to access that data.
`
`event's only argument in support of its CFAA claim rests
`
`upon the Terms of Use on its website, which state in part that
`
`"No competitors or future competitors are permitted access to our
`
`site or information, and any such access by third parties is
`
`unauthorized ....'' PL's Opp. to Def.'s Mot. to Dismiss First
`
`Am. Compl. at 4. Notwithstanding that language, event's website
`
`in fact takes no affirmative steps to screen competitors from
`
`accessing its information. event's CSN venue location database
`
`is not password-protected, nor are users of the website required
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`to manifest assent to the Terms of Use, such as by clicking "I
`
`agree" before gaining access to the database. Rather, anyone,
`
`including competitors in the field of event planning, may access
`
`and search event's venue information at will.
`
`Indeed, the Terms of Use for event's website are not
`
`displayed on the website in any way in which a reasonable user
`
`could be expected to notice them. Based upon screenshots of the
`
`website provided to the Court by defense counsel, and to which
`
`plaintiff's counsel did not object, the Terms of Use do not
`
`themselves appear in the body of the first page of the event
`
`website. The link that accesses the Terms is buried at the
`
`bottom of the first page, in extremely fine print, and users must
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 9 of 26 PageID# 479
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`affirmatively scroll down to the bottom of the page to even see
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`the link. Specifically, when users scroll down to the bottom of
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`event's homepage, they are confronted with a black band with
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`twenty-eight different links separated into four columns and
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`grouped under four headings: "Event Planning," "Online Surveys,"
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`"Site Selection,"and "Company Info." Under the "Company Info"
`
`heading, the rightmost heading on the page, the "Terms of Use"
`
`link appears two lines down in small white font, sandwiched
`
`between "Privacy Policy" and "Contact Us." Moreover, even when
`
`users click on "Terms of Use," they are directed to a secondary
`
`page entitled "Terms of Use for Cvent Products," which itself has
`
`three separate links to three different Terms of Use: "Supplier
`
`Network Terms of Use," "Event Management Terms of Use," and "Web
`
`Survey Terms of Use." Website users can access the various Terms
`
`of Use documents only by clicking on the appropriate links,
`
`thereby opening the documents on a new page. The documents
`
`themselves are each several pages long.
`
`event's website, including its CSN database, is therefore
`
`not protected in any meaningful fashion by its Terms of Use or
`
`otherwise. Eventbrite thus properly cites to State Analysis,
`
`Inc. v. American Financial Services. Awnr 621 P. Supp. 2d 309
`
`(E.D.Va. 2009) (Brinkema, J.), in which this Court rejected a
`
`CFAA claim against a defendant who, like Eventbrite, was accused
`
`of using material to which it had lawful access in ways that
`
`violated the agreement governing that access. In State Analysis.
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 10 of 26 PageID# 480
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`the plaintiff sued two defendants: the first was alleged to have
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`accessed the plaintiff's website using usernames and passwords
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`that did not belong to it and to which it had never been given
`
`lawful access, while the second was alleged to have misused the
`
`passwords with which it had been entrusted. This Court allowed
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`the CFAA claim to proceed against the first defendant, but
`
`granted the second defendant's motion to dismiss, explicitly
`
`holding that while use of an unauthorized password to access
`
`password-protected content may constitute a CFAA violation, a
`
`mere allegation that a defendant "used the information [which it
`
`had been given lawful authority to access] in an inappropriate
`
`way" did not state a claim for relief. id. at 317.
`
`The overwhelming weight of authority supports this view of
`
`the CFAA. See, e.g.. LVRC Holdings LLC v. Brekka. 581 F.3d 1127
`
`(9th Cir. 2009); Orbit One Commc'ns, Inc. v. Numerex Corp.. 592
`
`F. Supp. 2d 373, 383 (S.D.N.Y. 2010); Lewis Burke Assocs. LT.C v
`
`Widder, No. 09-CV-00302-JMF, 2010 WL 2926161 at *5-*6 (D.D. C.
`
`July 28, 2010) .
`
`Meanwhile, the cases cited by Cvent in its
`
`opposition to Eventbrite's motion to dismiss nearly all present
`
`factual situations that are distinguishable from the facts in the
`
`instant case. For example, America Online v. LCQM. Inc.. 46 F.
`
`Supp. 2d 444 (E.D.Va. 1998) {Lee, J.), the only case cited by
`
`plaintiff from this district, upheld a CFAA claim for electronic
`
`datastripping. However, the defendants in that case were alleged
`
`to have obtained AOL e-mail accounts in order to use extractor
`
`10
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 11 of 26 PageID# 481
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`software programs to harvest the e-mail addresses of AOL members
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`and then send bulk spam solicitations to them. id. at 448. Not
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`only was such conduct in violation of AOL's Terms of Use, but the
`
`defendants were plainly never given authorized access to the
`
`confidential e-mail addresses of other users. The AOL case thus
`
`stands in contradistinction to this case, where the entire world
`
`was given unimpeded access to event's website, its CSN venue
`
`database, and its "Destination Guide." For those reasons,
`
`Eventbrite's motion to dismiss plaintiff's CFAA claim will be
`
`granted.
`
`B. Claim Three: Virginia Computer Crimes Act, Va. Code Ann
`§ 18.2-152.3 et seq.
`
`Eventbrite moves to dismiss plaintiff's claim for violation
`
`of the Virginia Computer Crimes Act (VCCA), arguing that it is
`
`preempted by the federal Copyright Act. Section 301(a) of the
`
`Copyright Act states:
`
`[A]11 legal or equitable rights that are equivalent to
`any of the exclusive rights within the general scope of
`copyright as specified by section 106 [of the Copyright
`Act] in works of authorship that are fixed in a
`tangible medium of expression and come within the
`subject matter of copyright as specified by sections
`102 and 103
`.
`.
`. are governed exclusively bv this
`title.
`*
`
`17 U.S.C. § 301(a). A state law claim is preempted by the
`
`Copyright Act if (l) the work at issue is "within the scope of
`
`the 'subject matter of copyright' as specified in 17 U.S.C.A.
`
`§§ 102, 103 and (2) the rights granted under state law are
`
`II
`
`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 12 of 26 PageID# 482
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`equivalent to any exclusive rights within the scope of federal
`
`copyright [law] as set out in 17 U.S.C.A. § 106." Rosciszewski
`
`v. Arete Assocs., Inc., 1 F.3d 225, 228 (4th Cir. 1993). A right
`
`under state law is "equivalent" to a right under federal
`
`copyright law if that right "may be abridged by an act which, in
`
`and of itself, would infringe one of the exclusive rights
`
`[granted in the Copyright Act]." id.
`
`In support of its motion to dismiss, Eventbrite relies upon
`
`the Fourth Circuit's decision in Rosciszewski. which held that
`
`where a claim under the Virginia Computer Crimes Act does not
`
`require proof of elements beyond those necessary to prove
`
`copyright infringement, that claim is preempted by federal
`
`copyright law. The elements of a violation of the VCCA are that
`
`the defendant (1) uses a computer or computer network;
`
`(2) without authority; and (3) either obtains property or
`
`services by false pretenses, embezzles or commits larceny, or
`
`converts the property of another. Va. Code § 18.2-152.3. In
`
`comparing those elements to the scope of the federal Copyright
`
`Act under 17 U.S.C.A. § 106, the Fourth Circuit in Rosciszewski
`
`determined that "the protection of computer programs from
`
`unauthorized copying granted under [the VCCA] is equivalent to
`
`the exclusive right of the copyright owner to reproduce a
`
`copyrighted work under the Copyright Act. Therefore, [a VCCA
`
`cause of action] is preempted to the extent that it is based on
`
`12
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 13 of 26 PageID# 483
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`reproduction of the copyrighted computer program." id. at 230.
`
`In light of the Fourth Circuit's holding, the only basis for
`
`finding that the VCCA claim is not preempted would be if the VCCA
`
`violations alleged here are distinguishable in some way from the
`
`software copying alleged in Rosciszewski. Cvent argues that this
`
`case is distinguishable from Rosciszewski because the VCCA has
`
`been amended since the Rosciszewski decision. The earlier
`
`version of the VCCA differed from the current version of the
`
`statute in one primary respect: the earlier version simply
`
`required proof that the defendant used a computer or computer
`
`network without authority and with the intent to obtain property
`
`or services by false pretenses, to embezzle or commit larceny, or
`
`to convert the property of another. See icU By contrast, the
`
`statute as amended in 2005 now requires that the defendant must
`
`actually commit larceny, false pretenses, embezzlement, or
`
`conversion to be liable. See Va. Code Ann. § 18.2-152.3 et sea.
`
`Cvent thus attempts to distinguish Rosciszewski. arguing that the
`
`current version of the statute presents a distinct claim for
`
`relief that is qualitatively different from a claim for alleged
`
`copyright infringement.
`
`In its reply, however, Eventbrite properly relies upon state
`
`Analysis, cited on page 9 of this Memorandum Opinion, in which
`
`this Court found a VCCA claim even under the current amended
`
`statute preempted by the Copyright Act. The plaintiff in state
`
`Analysis similarly argued that its VCCA claim was based on
`
`13
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 14 of 26 PageID# 484
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`elements beyond mere copying, including the elements of false
`
`pretenses, embezzlement, and/or conversion, and that the claim
`
`was therefore not preempted by federal copyright law. Id_^ at
`
`320. Yet the complaint consistently alleged facts relating to
`
`the plaintiff's copyright ownership and the defendant's alleged
`
`infringement. Accordingly, this Court found that "[o]n the facts
`
`as pled by StateScape, it is difficult to see how any claim under
`
`the VCCA would contain any elements making it qualitatively
`
`different from the Copyright Act claims," and dismissed the claim
`
`as preempted. id.
`
`This case is functionally indistinguishable from State
`
`Analysis, event's first amended complaint alleges facts almost
`
`exclusively relating to event's ownership of copyrights for its
`
`website and Eventbrite's alleged infringement of those copyrights
`
`by means of unlawful "scraping" techniques. At no point does the
`
`complaint plead specific facts giving rise to a plausible
`
`inference of larceny, false pretenses, embezzlement, or
`
`conversion, as required by the plain text of the VCCA. In fact,
`
`event's claim in this case reduces to nothing more than a
`
`copyright infringement allegation, dressed up in VCCA garb. As
`
`such, the VCCA claim is preempted by the Copyright Act and will
`
`be dismissed.
`
`C. Claim Four: Lanham Act, 5 U.S.C. § 1125(a)
`
`Eventbrite next moves to dismiss the Lanham Act claim for
`
`"reverse passing off" on the ground that it is barred by Dastar
`
`14
`
`

`
`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 15 of 26 PageID# 485
`
`v. Twentieth Century Fox Film Corp.. 539 U.S. 23 (2003). In
`
`Dastar, the Supreme Court held that although the Lanham Act
`
`forbids a reverse passing off of works created by another, that
`
`rule regarding the misuse of trademarks is trumped by copyright
`
`law, such that if a copyrighted work passes into the public
`
`domain, a Lanham Act claim will no longer lie. The Dastar Court
`
`also limited the scope of the Lanham Act to "tangible goods
`
`offered for sale, and not to the author of any idea, concept, or
`
`communication embodied in those goods." id. at 32. The
`
`rationale for doing so was that otherwise, a Lanham Act reverse
`
`passing off claim would be functionally indistinguishable from a
`
`copyright infringement claim.
`
`Following Dastar, many courts have rejected claims of
`
`"reverse passing off" based on copying the intellectual property
`
`of another and passing it off as one's own. For example, in
`
`Smartix International Corp. v. MasterCard International. LLC. No.
`
`06-CV-05174-GBD, 2008 WL 4444554 (S.D.N.Y. Sept. 30, 2008), the
`
`court rejected Lanham Act claims based on the allegation that the
`
`defendant stole confidential and proprietary materials from the
`
`plaintiff's computer server. Similarly, in General Universal
`
`Systems, Inc. v. t.p.r, 379 F.3d 131, 148-49 (5th Cir. 2004), the
`
`court held that a defendant's copying a freight tracking software
`
`program and marketing it as its own did not give rise to a Lanham
`
`Act claim. See also Bob Creeden & Assocs.. Ltd. y. Infosoft.
`
`Inc_, 326 F. Supp. 2d 876, 879 (N.D. 111. 2004); Larkin Group.
`
`Inc. v. Aquatic Design Consultants, Inc.. 323 F. Supp. 2d 1121
`
`15
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`

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`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 16 of 26 PageID# 486
`
`(D. Kan. 2004); McArdle v. Mattel Inc., 456 F. Supp. 2d 769, 783-
`
`84 (M.D. Tenn. 2006). However, other courts have reached the
`
`opposite conclusion, allowing Lanham Act claims to proceed under
`
`similar factual circumstances. See, e.g., Cable v. Agence France
`
`Presse, No. 09 C 8031, 2010 WL 290274, at *4-*5 (N.D. 111. July
`
`20, 2010) (rejecting Dastar challenge in a case involving
`
`electronic data stripping); Experian Mktg. Solutions, Inc. v.
`
`U.S. Data Corp.. No. 8:09 CV 24, 2009 WL 2902957, at *9-*10 (D.
`
`Neb. Sept. 8, 2009) (sustaining reverse passing off claim for
`
`redistribution of proprietary databases, noting that plaintiff
`
`did not allege "copying the ideas embodied in the databases" but
`
`"rather they allege[d] improper use of the actual files").
`
`There is no controlling precedent in the Fourth Circuit on
`
`point, nor has this Court ever confronted this precise issue.
`
`However, Cvent appears to have the better of the argument, at
`
`least insofar as its 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. See First Am. Compl. H 82-84.
`
`Admittedly, the Supreme Court's "tangible goods" language in the
`
`Pastar opinion is confusing, and tends to suggest that electronic
`
`products are not covered by the Lanham Act. However, the Dastar
`
`opinion also makes clear that the Court used that language simply
`
`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
`
`16
`
`

`
`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 17 of 26 PageID# 487
`
`laws). Dastar, 539 U.S. at 37.
`
`Thus, to the extent that Cvent is pleading its Lanham Act
`
`claim as an alternative to its copyright claim, it should be
`
`permitted to proceed. See 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.")-
`
`Accordingly, event's motion
`
`to dismiss the Lanham Act claim will be denied.
`
`D. Claim Five: Breach of Contract
`
`Eventbrite next moves to dismiss plaintiff's breach of
`
`contract claim for failure to state a plausible entitlement to
`
`relief. Eventbrite sets forth three arguments in support of that
`
`motion: (1) any contract claim against Eventbrite is preempted by
`
`federal copyright law; (2) Eventbrite is not a party to any
`
`contract; and (3) no contract exists.
`
`The first two arguments are unavailing. A breach of
`
`contract claim premised upon the Terms of Use on event's website
`
`is qualitatively different from a claim for copyright
`
`infringement under the Copyright Act and therefore is not
`
`preempted. Moreover, as explained below with respect to
`
`plaintiff's conspiracy claims, Cvent has explicitly pled that
`
`17
`
`

`
`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 18 of 26 PageID# 488
`
`defendant Foley was an agent of defendant Eventbrite, which hired
`
`Foley as an independent contractor to perform the alleged
`
`"website scraping" conduct at issue here. Thus, to the extent
`
`that any contract exists, Foley's assent to that contract would
`
`bind Eventbrite, the principal.
`
`However, event's breach of contract claim fails to state an
`
`entitlement to legal relief because event has not alleged
`
`sufficient facts to support a plausible allegation that a
`
`contract existed between Cvent and Eventbrite. Plaintiff's
`
`complaint fails to allege any written or oral contract between
`
`the parties. Instead, Cvent relies exclusively on its "Terms of
`
`Use," which are displayed on secondary pages of its website and
`
`can be accessed only through one of several dozen small links at
`
`the bottom of the first page. As noted above in this Court's
`
`analysis with respect to plaintiff's Computer Fraud and Abuse Act
`
`claim, on pages 8-9 of this Memorandum Opinion, the "Terms of
`
`Use" link only appears on event's website via a link buried at
`
`the bottom of the first page. Moreover, users of event's website
`
`are not required to click on that link, nor are they required to
`
`read or assent to the Terms of Use in order to use the website or
`
`access any of its content.2 This case is therefore not a
`
`"clickwrap" case, but rather falls into a category of alleged
`
`contracts that many courts have termed "browsewrap agreements."
`
`Eventbrite has provided the Court with screenshots of the
`Cvent website, showing the location of the cvent.com Terms of
`Use, and has requested that the court take judicial notice of
`those printouts. See Def.'s Req. for Judicial Notice.
`
`i:
`
`

`
`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 19 of 26 PageID# 489
`
`See, e.g., Hines v. Overstock.com, Inc.. 6S8 F. Supp. 2d 362, 366
`
`(E.D.N.Y. 2009); Doe v. Sexsearch.com. 502 F. Supp. 2d 719, 729
`
`n.l (N.D. Ohio 2007) .
`
`Neither party in this case has cited case law from either
`
`the Fourth Circuit or this Court explicitly addressing the
`
`validity of this type of browsewrap contract. Most courts which
`
`have considered the issue, however, have held that in order to
`
`state a plausible claim for relief based upon a browsewrap
`
`agreement, the website user must have had actual or constructive
`
`knowledge of the site's terms and conditions, and have manifested
`
`assent to them. See, e.g.. Sw. Airlines Co. v. Boardfirst. LT,r.
`
`No. 3:06-CV-0891-B, WL 4823761 at *5 (N.D. Tex. Sept. 12, 2007);
`
`Ticketmaster Corp. v. Tickets.com. Inc.. No. CV99-7654, 2003 WL
`
`21406289, at *2 (CD. Cal. Mar. 7, 2003). In this case,
`
`plaintiff has not pled sufficient facts to plausibly establish
`
`that defendants Eventbrite and Foley were on actual or
`
`constructive notice of the terms and conditions posted on event's
`
`website. Plaintiff alleges that "the terms of the TOUs [Terms of
`
`Use] are readily available for review," but has not provided any
`
`further factual detail to support that allegation. PL's First
`
`Am. Compl. at 5. Under the Supreme Court's recent pleading
`
`precedents, such conclusory allegations are insufficient to
`
`"nudge [the plaintiff's claims] across the line from conceivable
`
`to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
`
`(2007).
`
`Plaintiff nonetheless advances the additional argument that
`
`19
`
`

`
`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 20 of 26 PageID# 490
`
`its complaint states a breach of contract claim under the Uniform
`
`Computer Information Transactions Act (UCITA), as adopted by
`
`Virginia law. UCITA provides a breach of contract claim for
`
`violation of electronic Terms of Use, if a person (1) has an
`
`"opportunity to review" the terms and (2) engages in statements
`
`or conduct indicating, or leading one to infer, the person's
`
`"assent" to the terms. Va. Code § 59.1-501.11 & 59.1-501.12.
`
`Individuals, however, are only deemed to have had an "opportunity
`
`to review" a term if the term is "available in a manner that
`
`ought to call it to the attention of a reasonable person," Va.
`
`Code Ann. § 59.1-501.13:1, or if the website "disclose[s] the
`
`availability of the standard terms in a prominent place on the
`
`site" and "does not take affirmative acts to prevent printing or
`
`storage of the standard terms for archival or review purposes."
`
`Va. Code § 59.1-501.14:1.
`
`In its complaint, plaintiff makes bare assertions that its
`
`Terms of Use were prominently displayed on its website, that
`
`defendants had an "opportunity to review" the Terms of Use
`
`pursuant to Va. Code Ann. § 59.1-501.13:1 and Va. Code Ann.
`
`§ 59.1-501.14:1, and that defendants manifested assent to those
`
`terms merely by accessing event's venue location database.
`
`However, those conclusory allegations are flatly contradicted by
`
`the screenshots of event's website and are plainly insufficient
`
`under the igbal and Twomblv standard to state a plausible claim
`
`for relief. The essence of a breach of contract claim is a
`
`meeting of the minds and a manifestation of mutual assent. See
`
`20
`
`

`
`Case 1:10-cv-00481-LMB-IDD Document 51 Filed 09/15/10 Page 21 of 26 PageID# 491
`
`Restatement (Second) of Contracts § 17 cmt. c (1981). Plaintiff
`
`has simply failed to "plead [} sufficient factual content to allow
`
`the court to draw the reasonable inference that the defendant is
`
`liable for the alleged misconduct" with respect to its breach of
`
`contract claim. Ashcroft v. Iqbal. 129 S. Ct. 1937, 1949 (2009)
`
`(citing Twombly, 550 U.S. at 556). Accordingly, Count Five of
`
`plaintiff's First Amended Complaint will be dismissed.
`
`E. Claim Six: Unjust Enrichment
`
`Eventbrite also argues that this Court should dismiss
`
`plaintiff's unjust enrichment claim on the ground that it is
`
`preempted by the Copyright Act. Citing Microstrateay. Inc. v.
`
`Netsol

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