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FatWallet To Sue Best Buy Over DMCA Threat
Posted by
simoniker
on Wed Nov 26, 2003 08:17 PM
from the court-in-the-act dept.
from the court-in-the-act dept.
jkeyes writes "Online deal site FatWallet announced today that they will be suing Best Buy and other companies that sent them DMCA takedown notices. They are seeking a declaration from the court stating that Best Buy and other companies' demands were an abuse of the DMCA, and also violate the 1st Amendment." We covered Best Buy's original DMCA invocation a few days back.
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Circuit City Subpoenas CheapAss Gamer and DVDTalk 104 comments
An anonymous reader writes "A poster on DVDTalk and CheapAssGamer has posted the weekly ads for Circuit City, Best Buy, and Target ahead of time for the last few years. A few weeks ago he confirmed that there was an intended price break on the PS3 and stole Sony's thunder from E3. A Circuit City ad was used for confirmation. Circuit City has threatened DVDTalk and CheapAssGamer.com to give them personal information about the poster. CheapAssGamer has hired a lawyer and is going to fight. The story is similar to the Black Friday ads being posted early and FatWallet fighting back."
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Hmm... (Score:5, Funny)
Insurance! (Score:4, Funny)
* You must have your reciept, otherwise we will laugh at you
Parent
Re:Insurance! (Score:4, Informative)
* You must have your reciept, otherwise we will laugh at you
Feh... Best Buy will laugh at you even if you DO have the reciept. Best Buy's entire business revolves around:
Shameless editorial: I don't see what the big deal is about them shooting themselves in the foot on Black Friday deals. Only a masochistic idiot would shop there for anything more valuable than a CD anyhow.
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Not Pro Bono, and no hand out (Score:5, Informative)
Many folks on FatWallet have offered financial assistance, but we are not accepting any of it. If the time were to come where additional funds would be required, we would first look to other businesses that would be benefited by the suit, and as a last resort to consumers themselves.
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customers (Score:5, Interesting)
A year later I'm a little wiser and felt that someone should say this.
Thank you.
Since I don't know a whole lot about your business, I plan on checking it out and trying to become a paying customer solely because I believe you are a "good" company. I'll make sure to spread the word to my family so they can know what's going on.
there aren't many out there with the balls to do what you do, so again, Thank you.
-Morgajel
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Good. (Score:5, Insightful)
Re:Good. (Score:3, Interesting)
A private company wants to create an advertisement.
The day before they release the flyer - RAM prices double.
Said company changes things as necessary (this is a business) and can continue to make a profit in a regular business sense (or choose to eat the price change and move on - but they have a choice).
Your scenario is someone working at some printer operation can be paid off to release company confidential information (people at the company locations - even if they know the next "sale" pr
IT'S ABOUT TIME!!! (Score:4, Insightful)
Or it will be upheld.. (Score:3, Informative)
free speech ( among other things ) will be lost for a LONG time...
Re:IT'S ABOUT TIME!!! (Score:5, Interesting)
Another problem is that Congress makes some of these laws so vague as to leave too much interpretation up to the judges who try cases under these laws. Unfortunately, organizations such as the EFF don't have the clout or the resources that the corps do.
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Not the first time! (Score:5, Informative)
Oh boy (Score:5, Funny)
Re:Oh boy (Score:3, Funny)
Truly... (Score:5, Insightful)
It's fair use (Score:5, Informative)
Since when is posting an ad flyer online illegal?
Ad flyers are copyrighted. However, posting excerpts therefrom should count as news reporting, giving it a boost under the fair use criteria (17 USC 107 [cornell.edu]). Heck, I'd guess that the prices themselves are facts or ideas and therefore subject to the exclusion of copyright on ideas (17 USC 102 [cornell.edu]). You're right as far as I can tell.
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no, actually, it is not. (Score:3, Insightful)
They fall squarely and simply under the First Amendment and can be used for any sort of purpose (including commercial). News reporting or not. This is free speech, after all.
Unless--w
Not fair use, unregulated by copyright law. (Score:5, Interesting)
No, you are incorrect. The decision in Feist says facts are not copyrightable [wikipedia.org] (see the decision [findlaw.com] in section II A says "This case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are."). This would mean we're not dealing with fair use, we're dealing with something outside of the US copyright regime. As Lawrence Lessig made quite clear in his "Free Culture" speech in 2002 [oreillynet.com]:
So if citing facts were fair use that would mean ordinarily citing facts is regulated activity but you're allowed to do it in certain circumstances. But since we're dealing with activity not regulated by copyright law, this means fair use is not the key to understanding why we can cite the price of Best Buy's goods any time we want without first getting permission from Best Buy. This is also a very potent rationale for FatWallet against Best Buy.
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Re:Truly... (Score:5, Interesting)
I still don't understand what the big fuss is because there's always limtied quantities of the really good deals. You can't get a raincheck and you have to deal with the masses. Does Best Buy really care if they sell out of something 5 minutes after doors open, instead of 10? Are they trying to intentionally alienate their customers? Do they think people sharing information on the Internet is going to go away?
I've looked at most of the ads for Friday already via links on Anandtech forums and the only remotely 'great' deal is at Office Depot for a Lite-On dual format DVD burner for $89 out the door. Or $79 if you price match it to Best Buy ;)
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Re:Truly... (Score:3, Insightful)
Re:Truly... (Score:3, Informative)
Re:Truly... (Score:5, Insightful)
It's all about expectations. Right now, people expect Best Buy, etc. to have great deals on Black Friday. People are waiting in anticipation, people will line up, and Best Buy will sell hordes of crap from people thinking they're gonna get good deals.
But then FatWallet (thanks FatWallet) comes along, and lists what these deals are. After people see what's really on sale, a lot of people will lose interest because the sales aren't great (as you said, "the only remotely great deal is"). Consumers have time to see whether something is really a deal or not by comparing prices in advance. This results in a lot less people expecting good deals, and a lot less people going to Best Buy on Black Friday. And a lot less money for Best Buy. Hence, the takedown notices. They know they'll lose money if people see the hype for what it really is ... hype.
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Re:Truly... (Score:3, Insightful)
My Expert Analysis (Score:5, Funny)
They are crying in the back seat of a car, for their mommy to come forward and slap them around a bit. The solution, as it is in all families in these cases, is to make the two hand their stuff back to each other and shut up. If I was the father in this family, I would rename these crybabies: Best Buy wants the name FatWallet and FatWallet would be more appropriately named Best Buy.
There I fixed everything.
Re:My Expert Analysis (Score:3, Funny)
I welcome a fellow Southerner to Slashdot.
Seriously though, mixed metaphor gone all to hell dude... *shudder* That's like Luke/Leia weird.
Shit. Geekquake.
On the other hand, yes, if I called my sister FatWallet (or Best Buy, for that matter), she'd probably hit me.
Restoring people's faith (Score:5, Insightful)
A good decision here could go a way to help restoring people's faith in the law.
Of course a bad decision will confirm everybody's worst fears.
Re:Restoring people's faith (Score:5, Insightful)
A good decision here could go a way to help restoring people's faith in the law.
In my book, a good decision is a ruling rooted only in the law. In a lot of
Of course a bad decision will confirm everybody's worst fears.
The worst fear beaing that the laws are made by and for those with money? If you think that is the case then your beef is with Congress.
Let me ask you this, to kinda of solidfy my kind of meandering point:
If Congress passes a law with the purpose of enriching the powerful and wealthy at the expense of the little guy, would a court ruling that enforces this law and bilks the little guy out of money bve a good ruling or a bad ruling?
Around here, the expectation is that it would be a bad ruling, regardless of how the ruling adheres to the written law. In my book, that ruling would be a good ruling.
My hope with this whole DMCA case is that the court follows the word of the law exactly. And in the future, I hope courts fully enforce every aspect of the DMCA, so that in the future, I can go to my congress person and use it as Exhibit A. I've gone to my people in Congress, and talked to them, and you know what? In every case they want examples of how the DMCA has been abused and how courts ruled.
The bottom line here is that a good and a bad ruling are really interesting questions.
Parent
Re:Restoring people's faith (Score:5, Insightful)
I could garountee you that if you sat me down infront of the senate and asked me to explain to them why the DMCA is bad I could convince them within an hour as could just about any well educated technically inclined individual could.
To put it bluntly, when your ruling body passes laws that creat more conflicts than they solve, that is a bad ruling body. Much of the time this isn't due to people saying "hahahaaa, we'll get you and your dog too!" but more along the lines of most of the people in congress being traditonally educated buisnesspeople with plenty of education in other areas who, imo, trust corperations too much.
So, what I really thing has gone on is a fundemental change since the past. Corperations began creating all the resources we had and after a few generations, the old guys who said "corperations are bad, we must regulate this tool lest it gets out of control" died off to leave new people to come in and get elected. The new people had more faith in the corperate system than they did before, and as time went on, congress simply became more corperate friendly without realizing the folly of this, which is that if you give corperations all the power they want, and let them have flawed leaders, you unbalance the power system (such as competition) that keeps the peasants happy. When this happens guys at the top get greedy, and they'll conspire with their friends to force the mark of the beast onto us as an example and force us into slavery.
Add to this bribery, er, lobbying and you've got a corrupt goverment. With every law nobody agree's with, respect for all law by this goverment will decrease until there is no law.
The measure of a goverments success, in any incarnation, is it's ability to solve conflicts between people. A good decision would solve the majority of conflicts, while a bad decision would solve the minorty of them and a really bad decision would cause even more conflicts.
Parent
Re:Restoring people's faith (Score:3, Interesting)
Re:Restoring people's faith (Score:3, Insightful)
The law is intended to protect the people.
Any law however well intentioned that subverts the liberties of the people of the united states is a bad law and any judge worth his salt would deny the party using this law to subvert said liberties to prevail should be and eventually will be found to be in error by his peers.
While I for one do not consider corporations citizens I do respect the rights of people to excersize and to defend th
Re:Restoring people's faith (Score:4, Insightful)
The bottom line here is that a good and a bad ruling are really interesting questions.
Lets step back from Nietzsche here for a second and get over the whole jenseits von Gut und Bose concept. "Bad" occurs when people are hurt in various ways, "Good" occurs when people are helped in various ways. When the two conflict, how do you determine what is "Good" and what is "Bad"?
Needless to say, your concept of "Bad" has one small problem: if the court rules against an abuse of a law, this becomes Precedent, and can be used to protect against further abuse of that law or other similar laws. I'm sure if "your people" in Congress did manage to repeal the DMCA, it would be back in a couple of years under a new name, however the legal precedent will be in a musty old law book a hundred years from now. Thus, in the long term for the proper operation of justice, your "Bad" is actually "Good".
In this particular case, the point is pretty moot. The letter of the law specifies that fact cannot be copyrighted. Represenations of facts can be copyrighted (for instance, the artwork, layout, and lettering of the flyers in question) but the prices on those ads are factual information that cannot be copyrighted, and therefore cannot be "infringed". Thus, the defendents in this lawsuit have no grounds to have invoked the DMCA, and with no possible way of proving any kind of infringement are liable for damages incurred by their actions (including attourney fees) under Section 512(f) of the DMCA ("misrepresentation").
Thus assuming the court bothers to uphold the law as written, the whole point is moot, everyone is happy (well, except you, since if you took this to your congresscritter their answer would be "well thats good, it worked!"). Of course, lawyers use all sorts of slick talking, and will probably fling all sorts of lingo at the jury if this does manage to go to trial in attempts to confuse them on the matter, so if FatWallet fails to get summary judgement in their favor, all bets are off, as usual.
Parent
Re:Restoring people's faith (Score:3, Insightful)
This is why Congresspeople don't really like to talk to the public one on one.
Re:Restoring people's faith (Score:3, Interesting)
No, its a VERY bad thing.
It has lead down a path to a point where no one has any idea what any given judge will rule on any given day. Activism has taken things to the point now that there is positively no consistency in law and no coherence at all.
Goatse.cx webmaster to sue for DCMA violations (Score:4, Funny)
Re:Goatse.cx webmaster to sue for DCMA violations (Score:3, Interesting)
SAY NO TO DMCA Abuse (Score:5, Insightful)
Going up against the Best Buy legal team???! (Score:5, Funny)
Thank WallMart et al. (Score:5, Insightful)
Re:Thank WallMart et al. (Score:5, Informative)
Parent
DMCA (Score:3, Interesting)
one small step for man. one giant leap for mankind (Score:5, Interesting)
HOT! BB STOCK B&M only FAR (Score:3, Funny)
media whores 101 (Score:5, Interesting)
If they really gave a shit about the privacy of others etal, they would oust their logfiles entirely. Like Cryptome does [cryptome.org], and many others do. They're not obligated to keep log files under any binding law, and now they're bitching about being targeted for user id's etc.. Here's a noble idea for those who want to protect the privacy of others ln -s
Positive effect of DMCA (Score:5, Interesting)
It's like the Fox News Channel giving Al Franken's book sales a huge boost by suing the guy.
No holds barred. (Score:5, Interesting)
fatwallet.com is not just going for a declaratory judgement that these DMCA complaints are bunk. fatwallet.com's complaint also directly challenges the constitutionality of the DMCA (see paragraphs 40 and 41).
If fatwallet.com gets lucky, there's a small chance that this lawsuit might, just might, result in the DMCA being declared unconstitutional!
Re:No holds barred. (Score:4, Funny)
Parent
I just had the strangest dream... (Score:3, Funny)
Jack Vigelenti, Chairman of the MPAA has fled the country in fear that he will be next in line for anti-DMCA law suits, however the 82 year old texan may not be safe as his previous rallying for similar DMCA laws accross the world means he might only find refuge in hell.
Impacts RIAA too... (Score:5, Interesting)
One of the arguments made that will impact RIAA and the MPAA is that the DCMA shifts the burden of proof of the copyright from the person claiming copyright to the person accused of violation. FatWallet claims that this violates the Due process clause gaurenteed in the Fifth Amendment -- in other words, you have to go to court to prove that you did not violate a copyright; whereas with Due Process, they would prove that you did violate the copyright Same concept as guilty until proven innocent. FatWallet is arguing for innocent until proven guilty. FatWallet also is arguing that they should be given adiquate time to notify the poster.
The implications would be chilling for the RIAA. Why? Because instead of firing off a couple hundred law suits, they would be forced to prove to the ISP that the subject of the supeonia had in fact violated copyrights. Then your ISP would have to notify the alleged offender of copyright infringment so that they can defend themselves.
The whole message of the legal brief is to take out the DCMA one leg at a time. First they attack the copyright that Best Buy, et al., has and then they go for Fifth Amendment issues. It is a great thing. It is just interesting that the people who used the DCMA in the wrong way to provoke a law suit is retailers trying to prevent Black-Friday prices from being let out.
The real question.... (Score:3, Insightful)
Re:Limiting DMCA (Score:5, Insightful)
Sorry, but this reminds me "victories" from state of terror. In a country where people get killed for the way they think, you're happy if you go free from prison (with barely your toenails missing) and announce everyone that after all they decided you DO have right to paint your fenceposts green.
Parent
They want to set a precedent... (Score:4, Informative)
Yes, fatwallet did remove the Best Buy and Target postings after getting takedown notices. But the point of countersuing isn't to get the sale notices up again for this year, but rather so that a legal precedent is established for the future. I'm sure next year people will post more info, and Best Buy will sue again... unless a court has decided that they don't have a legal basis for suing because pricing info isn't considered copyright material under the DCMA. The fact is that it has never been tested in court, and FatWallet thinks that they will prevail if it is.
The other thing is that Best Buy also supeoned FatWallet for the names of the people who posted the info. FatWallet didn't give that up because they said there were technical errors with the notices, but I'm sure in the future they want to make sure that people can continue to post in their forums without being sued.
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