Pollstar v. Gigmania

Citation: Pollstar v. Gigmania Ltd., 170 F.Supp.2d 974 (E.D. Cal. 2000).

Factual Background
Pollstar (Plaintiff) is a website which publishes concert information on a daily basis. Pollstar employees spend time and money gathering and compiling the information in order to keep the information up to date. Gigmania (Defendant) runs a similar website and is a competitor of the Plaintiff. Defendant copied concert information from Plaintiff’s page and published the information to its own webpage.

Trial Court Proceedings
Plaintiff filed suit in federal court asserting three claims: (1) common law misappropriation; (2) unfair competition under Cal. Bus. & Prof. Code §17200; and (3) breach of contract of the license agreement.

Defendant filed a Rule 12(b)(6) motion to dismiss for failure to state a claim. On review, the district court denied Defendant’s 12(b)(6) motion on all three claims.

Misappropriation claim
On the misappropriation claim, Defendant argued that the Copyright Act preempted the claim. However, Defendant conceded that Plaintiff’s had “re-costumed its preempted ‘you-copied-our fact’ cause of action as a ‘hot news’ misappropriation claim” which is not preempted by the Copyright Act. Plaintiff pled that it “sufficiently collected information at some cost and that Gigmania is a direct competitor.”

The court concluded that although there exists no case that has held that information of the kind at issue here is protectable as “hot news”, it declined to decide the matter at this particular time. Further, the court stated that the Plaintiff’s pleading sufficiently stated a claim that Defendant was a “free-rider” by stating that “Gigmania copied false concert information from the pollstar.com website” and that the Plaintiff profits from its activities.

Unfair competition claim
Reviewing the unfair competition claim, Plaintiff alleged that Defendant had appropriated its property by publishing and selling it on the Internet. The court reasoned that since Plaintiff had pled a "'hot news' misappropriation claim," that claim provides the unfair competition claim with an extra element.” Thus, it survived Defendant’s motion to dismiss.

Breach of contract claim
Finally, for the motion to dismiss on the breach of contract claim, Defendant alleged that Plaintiff’s claim failed as a matter of law because Plaintiff could not allege the required element of mutual consent because the license agreement on Plaintiff’s page was not visible to the average visitor. The court agreed with Defendant that the license agreement was not readily apparent on the webpage, however the court declined to declare it invalid and unenforceable at this time.