Ruling in cases involving the online ticket broker StubHub, judges in Oregon and North Carolina have disagreed over whether it is immune from liability for ticket sales by scalpers.

StubHub, a subsidiary of eBay, invoked Section 230 of the Communications Decency Act in motions to dismiss both cases. The law distinguishes between an interactive service provider (ISP) and an internet content provider (ICP), saying that no ISP “shall be treated as the publisher or speaker of any information provided by another information content provider.”

In Oregon, the strategy worked as Multnomah County Superior Court Judge Marilyn E. Litzenberger dismissed a case filed by a woman who alleged that by offering Bruce Springsteen concert tickets “at prices greatly exceeding” the face value, StubHub violated Portland's anti-scalping ordinance.

“Plaintiff's claims are barred by the federal Communications Decency Act,” Litzenberger said in a brief order.

But in North Carolina, Guilford County Superior Court Special Judge Ben F. Tennille came to a different conclusion, ruling that the allegations in a suit filed by a buyer of Miley Cyrus as Hannah Montana concert tickets “sufficiently assert that StubHub acts as both an ISP and an ICP.”

“Discovery will determine if that is accurate and whether the immunity provided by the CDA is applicable to all of StubHub’s conduct,” he added.

Among other things, the plaintiff alleged that StubHub controls the events for which it offers tickets and creates the market value for tickets either through its association with multi-ticket holders or through its own sales. “These allegations amount to an allegation of control over the tickets and prices that is sufficient to defeat a motion to dismiss,” Tennille said.

The Oregon plaintiff, Sharon Fehrs, claimed she was unable to buy tickets online to a Springsteen concert at the Portland Rose Garden when they went on sale through the official outlet, but discovered that StubHub “almost immediately offered on its Web site numerous premier tickets … at prices greatly exceeding the price at which the tickets were officially offered.”

Portland's anti-scalping ordinance makes it a crime for “any person to sell or offer for sale any ticket for an event at any municipally-owned facility, or for any event at the Rose Garden Arena, at a price greater than the retail price printed thereon or at a price greater than the original retail price.”

But Judge Litzenberger agreed with StubHub that the ordinance “does not explicitly provide a private cause of action to citizens who claim[ ] to have been damaged as a result of conduct violating the ordinance.”

By Matthew Heller
10/23/08