Click2Boost, Inc. (C2B) entered into an Internet marketing agreement with the New York Times (NYT) on May 10, 2002, for C2B to solicit subscribers for home delivery of the New York Times newspaper through "pop up ads" at Internet Web sites with which C2B maintained "[m]arketing [a]lliances." The agreement required NYT to pay C2B a fee or commission for each home delivery subscription C2B submitted to NYT. NYT paid C2B more than $1.5 million in subscription submission fees from May 2002 to September 2003, but most of the subscriptions were ended, so NYT terminated the C2B agreement on September 16, 2003.
In October 2003, Wall Street Network (WSN) took over C2B and filed suit for breach of contract against NYT. WSN said that NYT had breached the agreement by terminating it before September 30, 2003, because the contract was one for goods and C2B had furnished those goods. WSN wanted damages under the UCC for breach of a contract because the pop-up ads were sold independently as goods. NYT argued that the contract was one for services for furnishing subscribers, something C2B did not do successfully. WSN countered that the customers generated from the pop-up ads were what was being sold, just like selling a list of names, something that would be considered a good. The trial court granted the NYT summary judgment and WSN appealed. Should WSN win the case? Why or why not? [Wall Street Network, Ltd. v. New York Times Company, 164 Cal. App. 4th 1171, 80 Cal. Rptr. 3d 6, 66 UCC Rep. Serv. 2d 261]