This section contains the nature of the case and procedural background.

Cairo (P) filed a complaint for declaratory relief against Crossmedia (D) seeking a declaratory judgment that its website does not infringe any copyrightable material belonging to CMS and does not infringe any California trademark held by CMS; that its website does not constitute an unfair trade practice under federal or California law; its conduct does not breach any enforceable contract with CMS; it has not committed trespass as to CMS’s personal property; it has not misappropriated property or assets belonging to CMS, and it has not wrongfully interfered with CMS’s business relationships. D moved to dismiss. D takes its customers’ promotional materials and creates interactive electronic versions of those materials. D hosts these materials on more than 250 websites that it operates. A shopper may access the interactive promotional materials created by CMS through CMS’s ShopLocal Network or through the retailers’ own websites. Every web page hosted by D displays D name and logo and the following notice: “By continuing past this page and/or using this site, you agree to abide by the Terms of Use for this site, which prohibit commercial use of any information on this site.” D’s Terms of Use prohibit users from deep-linking to D’s websites for any purpose unless specifically authorized by D. They also bar users from accessing D websites with “any robot, spider or other automatic device or process to monitor or copy any portion” of those sites. P compiles information from retailers’ weekly circular web pages, some of which are enabled by D. P does this through “robots,” “spiders,” or “crawlers,” which automatically visit retailers’ websites, record the relevant sales information from the retailers’ weekly circular web pages, and then return that information to a database maintained by P.

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