United States: CFAA "Unauthorized Access" Web Scraping Claim Against Ticket Broker Dismissed Because Revocation Of Access Not Expressed In Cease And Desist Letter

A California district court issued an important opinion in a dispute between a ticket sales platform and a ticket broker that employed automated bots to purchase tickets in bulk. (Ticketmaster L.L.C. v. Prestige Entertainment, Inc., No. 17-07232 (C.D. Cal. Jan. 31, 2018)). For those of us who have been following the evolution of the law around the use of automation to scrape websites, this case is interesting. The decision interprets some of the major Ninth Circuit decisions of recent memory on liability for web scraping.  Indeed, two weeks ago, we wrote about a case in which the Ninth Circuit interpreted certain automated downloading practices under the CFAA and CDAFA. Also, we wrote about and are awaiting the decision in the hiQ v. LinkedIn appeal before the Ninth Circuit. Also prior posts on the topic include a discussion of a noteworthy appeals court opinion that examined scraping activity under copyright law and the scope of liability under the DMCA anticircumvention provisions.  These seminal decisions and the issues they raise were expressly or implicitly addressed in the instant case. While we will briefly review some of the highlights of this decision below, the case is a must-read for website operators and entities that engage in web scraping activities.


For the past two years, the defendant ticket brokers have allegedly been using bots and dummy accounts to navigate Ticketmaster's website and mobile app to purchase large quantities of tickets to popular events to resell for higher prices on the secondary market.  To combat brokers, Ticketmaster employs various countermeasures, such as limiting purchases, regulating the speed users may refresh purchase requests, and installing various security measures to thwart bot activity, such as CAPTCHA.  According to the complaint, in this case, defendants used colocation facilities with high speed bandwidth, random number and letter generators, and other evasive methods in order to avoid detection by Ticketmaster, as well as using automated means to bypass CAPTCHA screens and "CAPTCHA farm" laborers (overseas workers paid a small wage to click on and decipher CAPTCHA boxes).

As part of the ticket buying process, users must agree to Ticketmaster's terms of use before they can view and use Ticketmaster's website and mobile app.  Users are also required to agree to a "Code of Conduct" in the terms and abide by purchasing limits. The terms also prohibit a number of automated activities, such as using robots, spiders, or automated tools to mine data, defeat CAPTCHA tools, or search for or purchase tickets, as well as any actions that impose an unreasonable large load on Ticketmaster's servers.

The Claims

Ticketmaster brought suit against the defendants alleging a variety of claims including copyright infringement and violation of the anticircumvention provisions of the Digital Millennium Copyright Act (part of the Copyright Act), state breach of contract, fraud and related claims, violation of the New York anti-ticket bot law, violation of the Computer Fraud and Abuse Act (CFAA), and violation of the California state Computer Data Access and Fraud Act (CDAFA).  (Note: This suit came on the heels of a defendant's (Renaissance Ventures d/b/a Prestige Entertainment) $3.3 million settlement with the New York State Attorney General in May 2017 over alleged violations of New York's ticket laws and the use of illegal ticket bots.)  In considering the defendant's motion to dismiss, the court allowed the plaintiff's DMCA anticircumvention claims as well as breach of contract, fraud and other related state law claims to go forward (the claim for civil violations of the New York anti-ticket bot law were not before the court), but dismissed claims under the CFAA and CDAFA (with leave to amend) as well the plaintiff's other claims.  This blog post is intended to briefly summarize the court's analysis of the CFAA and DMCA issues.

The Ruling

Plaintiff alleged that the defendant violated the CFAA.  The CFAA imposes liability on any party that "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains," inter alia, "information from any protected computer.  In the Ninth Circuit's 2016  Power Ventures ruling, that panel held that an entity can run afoul of the CFAA when he or she has no permission to access a computer or when such permission has been revoked explicitly, but that a violation of the terms of use of a website, without more, cannot be the basis for liability under the CFAA.  In this case, the issue was whether defendants lacked authorization when using Ticketmaster's website or apps. Ticketmaster contended that defendants lacked or exceeded their authorization by violating its terms, even after it sent defendants a cease and desist letter outlining the alleged violations.  In dismissing the claim, the court found that Ticketmaster's cease and desist letter had "not shown that it rescinded permission from Defendants to use its website." However, since the court granted leave to amend the CFAA and CDAFA claims, Ticketmaster could state a viable claim by presenting evidence that, after it sent the cease and desist letter, it took steps to prevent defendants from future access to its networks by, for example, closing accounts or blocking IP addresses affiliated with defendants, or otherwise bolster its claims by alleging that defendants implemented "hacks" and "backdoors" to enable bots to gain access to Ticketmaster's systems to purchase tickets.

With respect to Ticketmaster's claims under copyright, while the court dismissed Ticketmaster's copyright infringement claims, it did allow Ticketmaster's DMCA claims to go forward. The DMCA provides that: "[n]o person shall circumvent a technological measure that effectively controls access to a [copyrighted] work." 17 U.S.C. § 1201(a)(1).  To circumvent a technological measure means to "descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." 17 U.S.C. § 1201(a)(3)(A).  Such things as encryption measures and software activation and validation keys have been deemed technological measures within the meaning of the DMCA.  In allowing the claim to go forward, the court stated that CAPTCHA was a technological measure under the DMCA, as it prevents a user from proceeding further to gain access to copyrighted pages, and that allegations that defendants used colocation facilities and other methods, such as deleting cookies, were also actionable under the DMCA if used to circumvent Ticketmaster's technological measures.  This aspect of the ruling is important as the DMCA provisions allow for statutory damages "per act of circumvention" and, as it is a federal law claim, it allows the district court to retain jurisdiction over the dispute.

Despite trimming the causes of action in the complaint, the court granted leave to amend the CFAA and CDAFA claims. In any case, Ticketmaster's remaining claims are formidable.  It will be interesting to see how this litigation proceeds, including how the court analyzes the DMCA and state law claims in the context of an unwanted network access dispute.

CFAA "Unauthorized Access" Web Scraping Claim Against Ticket Broker Dismissed Because Revocation Of Access Not Expressed In Cease And Desist Letter

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions