BILL ANALYSIS �
AB 329
Page 1
Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 329 (Pan) - As Amended: April 25, 2013
As Proposed to Be Amended
SUBJECT : TICKET SELLERS: EQUITABLE ONLINE TICKET BUYING
PROCESS: CIRCUMVENTING SOFTWARE
KEY ISSUE : SHOULD THE USE OF ROBOTIC TICKET-BUYING SOFTWARE TO
CIRCUMVENT CONSUMER PROTECTION MEASURES EMPLOYED BY TICKET
ISSUERS ON THEIR WEBSITES BE PROHIBITED BY LAW?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill seeks to make it a misdemeanor for
any person to use software to circumvent a security measure,
access control system, or other control or measure on a ticket
seller's Internet Web site that is used to ensure an equitable
ticket buying process. This bill would also make the sale of
such software, known as robotic ticket buying software (or
"bots" for short) a misdemeanor. According to the author, the
unregulated use of bots allows scalpers to unfairly create
instant sellouts of events before the average fan has a chance
to obtain tickets. These persons subsequently sell the tickets
they have purchased through bots at highly marked up prices,
forcing fans to pay more for tickets when they have not had any
fair opportunity to purchase a face-value ticket directly from
the ticket issuer or event organizer. The author has proposed a
single technical amendment to close a loophole that created some
unintended exemptions to the bill due to its placement within
the code.
Recent amendments to the bill taken in the Assembly Arts &
Entertainment Committee limit the bill to only the current
prohibition of the sale or use of robotic ticket buying
software. Several professional sports teams and other ticket
sellers who previously opposed the bill now support it, and
there is no known opposition to the current version of the bill.
SUMMARY : Provides that a person who intentionally uses or sells
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software to circumvent a security measure, access control
system, or other control or measure on a seller's Internet Web
site that is used to ensure an equitable ticket buying process
is guilty of a misdemeanor.
EXISTING LAW :
1)Declares that it shall be unlawful for a ticket seller to
contract for the sale of tickets or accept consideration for
the sale of tickets unless the ticket seller meets one or more
of the following requirements:
a) The ticket seller has the ticket in his or her
possession.
b) The ticket seller has a written contract to obtain the
offered ticket, as specified.
c) The ticket seller informs the purchaser that the seller
may not be able to supply the ticket at the contracted
price or range of prices, as specified. (Business &
Professions Code Section 22502.1. Unless otherwise stated,
all further references are to this code.)
2)Makes failure to deliver the tickets within a reasonable time
or by a contracted time, at or below the price stated or
within the range of prices stated, punishable as a
misdemeanor. (Section 22505.)
3)Requires that a ticket seller shall disclose any service
charges assessed, as provided. (Section 22508.)
4)Provides that a violation of any of these provisions
constitutes a misdemeanor, and in addition authorizes a civil
penalty not to exceed two thousand five hundred dollars
($2,500) for each violation, which may be assessed and
recovered in a civil action brought in the name of the people,
as specified. (Section 22500(c).)
5)Provides that any person who, without the written permission
of the owner or operator of the property on which an
entertainment event is to be held or is being held, sells a
ticket of admission to the entertainment event, which was
obtained for the purpose of resale, at any price which is in
excess of the price that is printed or endorsed upon the
ticket, while on the grounds of or in the stadium, arena,
theater, or other place where an event for which admission
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tickets are sold is to be held or is being held, is guilty of
a misdemeanor. (Penal Code Section 346.)
COMMENTS : This non-controversial bill seeks to make it a
misdemeanor for any person to use software to circumvent a
security measure, access control system, or other control or
measure on a ticket seller's Internet Web site that is used to
ensure an equitable ticket buying process. This bill would also
make the sale of such software, known as robotic ticket buying
software (or "bots" for short) a misdemeanor.
Need for the bill : According to the author, robotic
ticket-buying software ("bots") are designed to bombard online
box office websites with thousands of simultaneous purchase
requests, thereby bypassing the principle of first-in-line and
creating instant sellouts of events before the average fan has a
chance to obtain tickets. The author states that the
entertainment industry has continuously blamed "instant
sellouts" on the unregulated use of bots by scalpers, who then
turn around and sell the tickets at severely marked up prices,
forcing fans to pay higher prices for tickets without having had
any opportunity to purchase a face-value ticket from the ticket
issuer or event organizer. To address these problems, this bill
would prohibit the use or sale of robotic ticket-buying
software, and making violations punishable by a misdemeanor.
Technological attempts to combat robotic-ticket buying software
have not been entirely successful. According to the author, the
ticket industry has attempted to combat the problems caused by
bots by employing other technological means such as CAPTCHA
phrases and pictures tests at the point of sale during the
online transaction. Visitors to any ticket selling website in
recent years may recall having been instructed to view a
distorted image of a word or phrase and type the characters into
a response box before being allowed to purchase tickets on the
website. This type of CAPTCHA test is designed to prevent the
use of bots because the requested task is one that a person can
complete correctly in virtually every case, but is difficult for
a robotic software program to accurately perform. Variations of
CAPTCHA methods involve visual identification of common objects
like animals or fruit rather than words or phrases; in either
case, the idea is that correct responses to CAPTCHA requests can
be reliably presumed to have been entered by a person using the
ticket website, and not an automated software program.
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According to supporters of the bill, however, these
technological efforts do not appear to have been very successful
because the problem of instant sellouts and increased resale
prices for tickets continues to generate complaints from the
ticket-buying public. This bill seeks to address the novel
problem caused by the rise of bot software by prohibiting the
use and sale of any software that "circumvents a security
measure, access control system, or other control or measure on a
seller's Internet Web site that is used to ensure an equitable
ticket buying process."
Proposed amendment removing unintended exemptions . Existing law
regulating ticket sellers (Chapter 21 of Division 8 of the
Business and Professions Code) specifies conduct by a ticket
seller that is punishable as a misdemeanor, including, among
other requirements, maintaining and disclosing a permanent
business address, disclosing any service charge, and delivering
purchased tickets within contracted-for time and price
parameters. This bill expressly makes the use or sale of
robotic ticket buying software, as defined, a misdemeanor. The
Committee notes, however, that several types of ticket-selling
entities are exempted from Chapter 21, presumably for policy
reasons that make regulation of ticket selling conduct by those
entities unnecessary. (See, e.g. Section 22511, which exempts
"any nonprofit charitable tax-exempt organization selling
tickets to an event sponsored by the organization," but also see
Section 22504, stating "This chapter does not apply to any
person who sells six tickets or less to any one single event,
provided the tickets are sold off the premises where the event
is to take place?")
Because this bill prohibits questionable conduct not by the
ticket seller, but by those seeking to thwart consumer
protection measures used by the ticket seller, there may be
unwanted loopholes created by applying existing exemptions to
Chapter 21 to the conduct prohibited by this bill. It does not
appear to be the author's intent to exempt "any person who sells
six tickets or less to any one single event, provided the
tickets are sold off the premises," or any person or entity for
that matter, from the prohibitions of this bill.
Accordingly, the author may wish to consider the following
amendment:
On page 8, line 39, strike "A" and insert "Notwithstanding
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any other provision of law, a"
REGISTERED SUPPORT / OPPOSITION :
Support
Fan Freedom
Ebay, Inc.
Stub Hub
American Bus Association
Bonnie J. Addario Lung Cancer Foundation
Broadway League
California Consumer Affairs Association
Consumer Action
Consumer Federation of America
National Consumer League
National Tour Association
San Francisco 49ers
Shorenstein Hays Nederlander Theaters
TechNet
TechAmerica
United Motorcoach Association
Several individuals
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334