Cvent, Inc. v. Eventbrite, Inc. et al

Filing 51

MEMORANDUM OPINION: For the reasons stated in open court and in this Memorandum Opinion, Eventbrite's motion to dismiss will be granted as to Counts Two, Three, Five, Seven, and Eight, and denied as to Counts Four and Six. Defendant's motion to strike portions of plaintiff's prayer for relief will be granted in part and denied in part, as described above.Signed by District Judge Leonie M. Brinkema on 09/14/10. (yguy)

-IDD Cvent, Inc. v. Eventbrite, Inc. et al

Doc. 51

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division
CVENT, INC.,

SEP I 4
CLLRK US DISTRICT COURT
A! F»HOK1A. VIRGINIA

Plaintiff,
v.

EVENTBRITE,

INC.,

et al.,

)

1:10-cv-00481

(LMB/IDD)

Defendants.

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

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
which, among other things, assists customers in

www.cvent.com,

Dockets.Justia.com

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, such as the availability and capacity of meeting rooms and venue

amenities and services.

Cvent has also undertaken development of
The complaint

a "Destination Guide," an informational resource of city-specific profiles designed for meeting and event planners.

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

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,

which maintains an online event planning, sales, and registration 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, restaurants, bars, and meeting venues in various cities. Most of

the information in Eventbrite's Venue Directory is publicly
2

available from the website of each hotel and restaurant.

Cvent

alleges that rather than aggregating that information itself,

Eventbrite hired Stephan Foley, a computer engineer, to "scrape"

(i.e. copy) the information directly from event's website.

Cvent

further alleges that Eventbrite then reformatted the material into its own layouts and made it available on the Eventbrite website. Eventbrite compensated Foley in November 2008 for his

work in scraping the venue information from the Cvent website. 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

defendants.
for relief,

The first amended complaint sets out eight claims
on the following grounds:

1. 2.
§

Copyright Infringement,
1030

17 U.S.C. § 101 et seq. 18 U S C
' ' '

Violation of the Computer Fraud and Abuse Act,

Ann.

3.

Violation of the Virginia Computer Crimes Act, Va
§ 18.2-152.3 et sea.

Code

4.
the

Lanham Act "reverse passing off," 5 U.S.C. § 1125(a)

6.

Unjust Enrichment

7.
8.

Business Conspiracy, Va. Code Ann.
Common Law Conspiracy

§ 18.2-499 et seq.

3

Cvent seeks a permanent injunction prohibiting defendants

from accessing its website without authorization and enjoining defendants from copying, using, or creating derivative works from
any Cvent website content. Plaintiff also requests an order

impounding and destroying all infringing copies of event's
copyrighted works, along with an order directing Eventbrite to
and also seeks damages,

engage in corrective advertising,

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

attorneys'
Act.1

fees are therefore not appropriate under the Copyright

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, Ashcroft v. Tghai., 129 S. Ct. 1937

not to legal conclusions. (2009). A court need not nor must it accept
E. Shore

accept legal conclusions drawn from the facts,

unwarranted inferences or unreasonable conclusions.

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 pleader is entitled to relief. Igbal. lshow[n]'- that the Ct. at 1950.

129 S.

"Factual allegations must be enough to raise a right of relief

above the speculative level,

on the assumption that all of the

answer,

Defendant Foley has not joined in Eventbrite's motion to dismiss but has been granted an extension of time to file his
which is now due on September 17, 2010.

allegations in the complaint are true."
Twombly, 550 U.S. 544, 555 (2007).

Bell Atl. Corp. v

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
under Fed. R. civ.

(Claim One), nor could it plausibly do so
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
(Claim

moved to dismiss plaintiff's Computer Fraud and Abuse Act

Two), Breach of Contract

(Claim Five), Business Conspiracy (Claim
claims on the grounds that,

Seven), and Common Law (Claim Eight)

for various reasons,

they each fail to state a legal claim upon Finally, Eventbrite moves to strike This Court will

which relief can be granted.

portions of plaintiff's prayer for relief.

consider each of Eventbrite's motions in turn.

A.

Claim Two:
§ 1030

Computer Fraud and Abuse Act,

IS U S C

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. statute forbids By its terms, the

"intentionally access[ing]

a computer without

authorization or exceed[ing]

authorized access,

and thereby

obtain[ing]
U.S.C.

.

.

.

information from any protected computer."
"Exceed[ing] authorized access" is

is

§ 1030(a)(2).

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

data which Eventbrite is alleged to have stripped from event's

website is publicly available on the Internet, without requiring
any login, password, definition,
"exceeded"

or other individualized grant of access. Eventbrite argues it could not have

By

therefore,

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, unauthorized ....''
Am. Compl. at 4.

and any such access by third parties is PL's Opp. to Def.'s Mot. to Dismiss First
event's website

Notwithstanding that language,

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
to manifest assent to the Terms of Use, such as by clicking "I Rather, anyone,

agree" before gaining access to the database.

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 and to which

website provided to the Court by defense counsel,

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 in extremely fine print, and users must

bottom of the first page,

affirmatively scroll down to the bottom of the page to even see the link. Specifically, when users scroll down to the bottom of
they are confronted with a black band with

event's homepage,

twenty-eight different links separated into four columns and
grouped under four headings: "Event Planning," "Online Surveys,"

"Site Selection,"and "Company Info." heading,

Under the "Company Info" the "Terms of Use"

the rightmost heading on the page,

link appears two lines down in small white font, sandwiched
between "Privacy Policy" and "Contact Us."
users click on "Terms of Use,"

Moreover,

even when

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: Network Terms of Use," Survey Terms of Use."

"Supplier

"Event Management Terms of Use," and "Web 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.
themselves are each several pages long.

The documents

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,
621 P. Supp. 2d 309

Inc. v. American Financial Services. Awnr

(E.D.Va. 2009)

(Brinkema, J.), in which this Court rejected a
like Eventbrite, was accused

CFAA claim against a defendant who,

of using material to which it had lawful access in ways that

violated the agreement governing that access.

In State Analysis.

the plaintiff sued two defendants:

the first was alleged to have

accessed the plaintiff's website using usernames and passwords 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 This Court allowed

passwords with which it had been entrusted.

the CFAA claim to proceed against the first defendant,
granted the second defendant's motion to dismiss,

but

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]
way" did not state a claim for relief. id.

in an inappropriate
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 592

(9th Cir. 2009); Orbit One Commc'ns,
F. Supp. 2d 373, 383 (S.D.N.Y. 2010);

Inc. v. Numerex Corp..
Lewis Burke Assocs.

LT.C v

Widder, No.
July 28,

09-CV-00302-JMF,
Meanwhile,

2010 WL 2926161 at *5-*6

(D.D.

C.

2010) .

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.
Supp. 2d 444

For example, America Online v. LCQM.
(E.D.Va. 1998) {Lee, J.),

Inc.. 46 F.

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

software programs to harvest the e-mail addresses of AOL members and then send bulk spam solicitations to them. id. at 448. Not

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.
stands in contradistinction to this case,

The AOL case thus

where the entire world

was given unimpeded access to event's website,
database, and its "Destination Guide."

its CSN venue

For those reasons,

Eventbrite's motion to dismiss plaintiff's CFAA claim will be
granted.

B.

Claim Three: Virginia Computer Crimes Act, Va.
§ 18.2-152.3 et seq.

Code Ann

Eventbrite moves to dismiss plaintiff's claim for violation of the Virginia Computer Crimes Act (VCCA), arguing that it is
of the

preempted by the federal Copyright Act.
Copyright Act states:

Section 301(a)

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

[A]11 legal or equitable rights that are equivalent to

subject matter of copyright as specified by sections 102 and 103 . . . are governed exclusively bv this title. *
17 U.S.C. § 301(a).
(l)

A state law claim is preempted by the
the work at issue is "within the scope of

Copyright Act if

the 'subject matter of copyright'
§§ 102, 103 and (2)

as specified in 17 U.S.C.A.

the rights granted under state law are
II

equivalent to any exclusive rights within the scope of federal
copyright
v.

[law]

as set out in 17 U.S.C.A.
Inc., 1 F.3d 225, 228

§ 106."

Rosciszewski
1993). A right

Arete Assocs.,

(4th Cir.

under state law is

"equivalent"

to a right under federal

copyright law if that right "may be abridged by an act which,
and of itself, would infringe one of the exclusive rights
id.

in

[granted in the Copyright Act]."

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,
copyright law. the defendant

that claim is preempted by federal

The elements of a violation of the VCCA are that (1) uses a computer or computer network;

(2)

without authority;

and

(3)

either obtains property or or
In

services by false pretenses,

embezzles or commits larceny,
Va. Code § 18.2-152.3.

converts the property of another.

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.
cause of action]

Therefore,

[a VCCA

is preempted to the extent that it is based on

12

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
See icU By contrast, the

to convert the property of another.

statute as amended in 2005 now requires that the defendant must
actually commit larceny, conversion to be liable. false pretenses, See Va. embezzlement, or

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, Analysis,

Eventbrite properly relies upon state in which

cited on page 9 of this Memorandum Opinion,

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

elements beyond mere copying,
pretenses, embezzlement,

including the elements of false
and that the claim Id_^ at

and/or conversion,

was therefore not preempted by federal copyright law.

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,
conversion,

false pretenses,

embezzlement, or
In fact,

as required by the plain text of the VCCA.

event's claim in this case reduces to nothing more than a

copyright infringement allegation, dressed up in VCCA garb.
such,
be

As

the VCCA claim is preempted by the Copyright Act and will

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

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, id. at 32. concept, The or

communication embodied in those goods."

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. Smartix International Corp. 06-CV-05174-GBD, v. For example, in LLC. No. the

MasterCard International. (S.D.N.Y. Sept. 30,

2008 WL 4444554

2008),

court rejected Lanham Act claims based on the allegation that the

defendant stole confidential and proprietary materials from the
plaintiff's computer server.
Systems, Inc. v. t.p.r,

Similarly,

in General Universal
(5th Cir. 2004), the

379 F.3d 131,

148-49

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. Inc_,
Inc.

See also Bob Creeden & Assocs.. Supp. 2d 876, 879 (N.D. 111.
Inc..

Ltd. y.

Infosoft.

326 F.

2004); Larkin Group.
323 F. Supp. 2d 1121

v. Aquatic Design Consultants,
15

(D.
84

Kan.
(M.D.

2004);
Tenn.

McArdle v.
2006).

Mattel Inc.,

456 F.

Supp.

2d 769,

783-

However,

other courts have reached the

opposite conclusion,

allowing Lanham Act claims to proceed under See, e.g.,
at

similar factual circumstances.
Presse, No. 09 C 8031,

Cable v. Agence France
*4-*5 (N.D. 111. July

2010 WL 290274,

20,

2010)

(rejecting Dastar challenge in a case

involving

electronic data stripping);
U.S. Data Corp.. No. 8:09

Experian Mktg.

Solutions,
at

Inc. v.
*9-*10 (D.

CV 24,

2009 WL 2902957,

Neb.

Sept.

8,

2009)

(sustaining reverse passing off claim for

redistribution of proprietary databases, did not allege

noting that plaintiff but

"copying the ideas embodied in the databases"
improper use of the actual files").

"rather they allege[d]

There is no controlling precedent in the Fourth Circuit on

point,

nor has this Court ever confronted this precise issue.
Cvent appears to have the better of the argument, at

However,

least insofar as its complaint does not assert that Eventbrite
has passed off its ideas as its own, but rather that Eventbrite (the CSN venue

has re-branded and re-packaged its product

database)

and sold it as its own.

See First Am.

Compl.

H 82-84.

Admittedly,

the Supreme Court's "tangible goods"
and tends

language in the

Pastar opinion is confusing,

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
Lanham Act protection) from any "idea, concept,

(which receive

or communication

embodied in those goods"

(which are protected only by copyright
16

laws).

Dastar,

539 U.S.

at

37.

Thus,

to the extent that Cvent is pleading its Lanham Act it should be
McCarthy on

claim as an alternative to its copyright claim,
permitted to proceed. See J. Thomas McCarthy,

Trademarks and Unfair Competition 5 27:77.1
cases a Lanham Act

(2006}

("In many

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
Accordingly, event's motion

case the copyright claim fails.")-

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. motion:

Eventbrite sets forth three arguments in support of that (1) any contract claim against Eventbrite is preempted by
(2) Eventbrite is not a party to any
exists.

federal copyright law;
contract; and (3) no

contract

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

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,
bind Eventbrite, However,

Foley's assent to that contract would

the principal. claim fails to state an

event's breach of contract

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 Moreover, users of event's website
nor are they required to

the bottom of the first page.

are not required to click on that link,

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
"browsewrap agreements."

contracts that many courts have termed

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:

See,

e.g.,

Hines v.

Overstock.com,

Inc..

6S8

F.

Supp.

2d 362,

366

(E.D.N.Y.
n.l (N.D.

2009); Doe v. Sexsearch.com.
Ohio 2007) .

502 F.

Supp. 2d 719,

729

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.
have considered the issue,

Most courts which

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,
assent to them. See, e.g.. Sw. Airlines Co.

and have manifested
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.
21406289, at *2 (CD. Cal. Mar. 7,

Inc.. No. CV99-7654,
2003). In this case,

2003 WL

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.
Use]

Plaintiff alleges that "the terms of the TOUs

[Terms of

are readily available for review," but has not provided any

further factual detail to support that allegation.
Am. Compl. at 5.

PL's First

Under the Supreme Court's recent pleading

precedents,

such conclusory allegations are insufficient to

"nudge

[the plaintiff's claims] Bell Atl.

across the line from conceivable Twombly, 550 U.S. 544, 570

to plausible."
(2007).

Corp. v.

Plaintiff nonetheless advances the additional argument that
19

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 if a person (1) (2) has an

violation of electronic Terms of Use, "opportunity to review"
or conduct indicating, "assent" to the terms.

the terms and

engages in statements
the person's

or leading one to infer, Va. Code §

59.1-501.11 & 59.1-501.12.

Individuals,

however,

are only deemed to have had an "opportunity "available in a manner that

to review" a term if the term is

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
that

Terms of Use were prominently displayed on its website,

defendants had an "opportunity to review"
pursuant to Va. Code Ann. §

the Terms of Use
Code Ann.

59.1-501.13:1 and Va.

§ 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 See

meeting of the minds and a manifestation of mutual assent.
20

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.

Netsolve,

Inc.,

368 F.

Supp.

2d 533

(E.D. Va.

2005)

(Lee,

J.),

Eventbrite contends that state law unjust enrichment claims are
preempted to the extent that they are based entirely on an

allegation of copying protected works.

Specifically,

Eventbrite

alleges that "event's purported claim is based entirely on its

allegation that Eventbrite copied material from event's website

and sold it as its own.
other than bare
Def.'s Mot.

As that allegation contains no elements
it is preempted."
at 7.

copying and distribution,

to Dismiss PL's First Am.

Compl.

Eventbrite's argument is certainly correct in the mine run of cases. See 1 Melville B. Nimmer & David Nimmer, Nimmer on (2003) ("[A] state law cause of action

Copyright § 1.0l[B] [1] (g)

for unjust enrichment

[is] pre-empted insofar as it applies to
21

copyright subject matter.").
respect to

However,

as noted above with
that Cvent is

the Lanham Act claim,

to the extent

alleging unjust enrichment based upon Eventbrite's derivation of

commercial benefit from its unauthorized scraping and repackaging
of event's products (including the CSN database), that states a

claim for relief that is separate and distinct

from a claim for

copyright infringement based upon the alleged theft of event's
copyrightable ideas. See PL's First Am. Compl. H 103

{"Defendants have accepted and retained the benefits of
unauthorized scraping,
property and products

their

copying,

and sale of valuable
which render

Cvent
it

in circumstances

inequitable for them to retain those benefits at event's expense without payment to Cvent.") noted in Microstrategy, (emphasis added). As this Court

a plaintiff's unjust enrichment claim

"may survive a preemption challenge if plaintiffs can demonstrate that defendants were unjustly enriched by copyright protection.'" Eventbrite's argument 368 F. Supp. "material beyond 537. time, Accordingly, and its motion

2d at

is premature at this

to dismiss plaintiff's unjust enrichment claim will be denied.

F.

Conspiracy

Claims Seven and Eight:

Business and Common Law

Eventbrite moves to dismiss plaintiff's

state-law conspiracy

claims on the ground that,
oneself.

simply put,

one cannot conspire with

Cvent alleges a conspiracy between only two actors: Specifically, Cvent alleges that

Eventbrite and Stephan Foley.

22

Eventbrite hired and paid Foley to scrape data from event's

website for use on Eventbrite's website.

Courts have repeatedly

held that "[a] cts of corporate agents are acts of the corporation

itself-"
1997)

ePlus Tech., inc. v. Aboud. 313 F.3d 166, 179 (4th Cir.
State Bank of Kevsville. 331 S.E. 2d 797,

(citing Bowman v.

801

(Va. 1985)}.

Virginia courts have also specifically adopted

the intracorporate immunity doctrine for Virginia conspiracy laws. result, See Fox v. Deese. 362 S.E. 2d 699, 70S (Va. 1987). As a

it is black letter law that a claim that a corporation

has conspired with its own agent fails as a matter of law.3 To avoid this line of reasoning, plaintiff repeatedly argues

that Foley was merely an "outside contractor" of Eventbrite,
an employee,

not

and that Foley did not take on any fiduciary duties

or other obligations of loyalty or obedience toward Eventbrite.
That argument is irrelevant under Virginia law, because the

existence of an agency relationship for intracorporate immunity
purposes hinges upon the substance, not the form, of the

relationship between the corporation and the individual. Chiropractic Ass'n, 212, 223-24 Inc. v. 2004). Trigon Healthcare. Inc..

See Am.

367 F.3d

(4th Cir.

If a corporation delegates a task

to an individual

(including an independent contractor)

to serve

corporate purposes,

the individual acts with the same general

objective as the corporation,

and the corporation retains

The only exception is when the agent has an independent personal stake in the corporation's illegal objectives See ePlus, 313 F.3d at 179. However, plaintiff has not alleged such an independent personal stake on defendant Foley's part
23

ultimate decisionmaking authority,

then the individual and the
the same entity.

corporation are for all intents and purposes

Under such circumstances,

the individual and the corporation
See Oksanen

logically cannot conspire with one another.

Chiropractic Ass'n v. {4th Cir. 1991}

Trigon Healthcare,

Inc.,

945 F.2d 696,

703

(finding that a hospital lacked the legal

capacity to conspire with members of an independent peer review
committee who were acting on its behalf).

In this case,

plaintiff alleges that Eventbrite hired Foley

to mine data from event's website for Eventbrite's commercial gain. The "scraped" data was used solely for Eventbrite's

benefit, and indeed it is difficult to imagine any independent
interest that defendant Foley might have had in acquiring it.
Because the allegations in its complaint cannot plausibly allege

a business conspiracy or a common law conspiracy between

defendants Eventbrite and Foley,

Eventbrite's motion to dismiss

both of plaintiff's conspiracy claims will be granted.

G.

Motion to Strike Plaintiff's Requested Relief

Finally,
for relief,

Eventbrite argues that certain of event's prayers

including its request for treble damages under the

Lanham Act and Va.

Code Ann.

§ 18.2-500,

and its request for

statutory damages and attorneys'
should be stricken.

fees under the Copyright Act,

24

Because the Lanham Act claim will remain in this lawsuit,

plaintiff's prayer for relief under that statute,
treble damages, still stands.

including

Cvent is also seeking both statutory damages and attorneys' fees in connection with its Copyright Act claim. Eventbrite

moves to strike that prayer for relief on the ground that 17

U.S.C.

§ 412 bars any award of statutory damages or attorneys'

fees if the work at issue was not registered at the time the

infringement commenced.

In this case, all copyrighted content on
including event's CSN venue location immediately before

the www.cvent.com website, database,

was registered in late April 2010,

plaintiff commenced this litigation.

However, plaintiff's first

amended complaint alleges only that the defendant committed
unlawful "scraping" of its website between August 2008 and

October 2008.

Eventbrite therefore correctly argues that on the plaintiff may

allegations in the first amended complaint alone,
only recover compensatory damages,
attorney's fees,

not statutory damages or

for its copyright claims based on Eventbrite's

alleged pre-registration infringement.

For these reasons,

Eventbrite's motion to strike plaintiff's
The

requested relief will be granted in part and denied in part.

motion will be granted in part as to statutory damages or
attorney's fees claimed under the Copyright Act claim (Count

One),
Three,

and any other relief claimed with respect to Counts Two,
Five, Seven, and Eight. Defendant's motion to strike the including the prayer

remainder of plaintiff's prayer for relief,
25

for treble damages and attorneys' fees under the Lanham Act

(Count Four) and equitable relief under the unjust enrichment
claim (Count Six), will be denied.

IV.

Conclusion

For the reasons stated in open court and in this Memorandum

Opinion, Eventbrite's motion to dismiss will be granted as to
Counts Two, Three, Five, Seven, and Eight, and denied as to

Counts Pour and Six.

Defendant's motion to strike portions of

plaintiff's prayer for relief will be granted in part and denied
in part, as described above.

Entered this Jjj_ day of September, 2010.

Alexandria,

Virginia

United Slates District Judge

leonie M. 3rinkeina

26