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Censorship

FatWallet Strikes Back Using DMCA 368

J. F. Miller writes "A recent Slashdot article reported how FatWallet had been the victim of a DMCA attack by several retail chains. After initially stating that they would not appeal, FatWallet was forced to take legal action when Wal-Mart further subpoenaed the name of a person who posted price information. They are accusing the stores frivolous copyright assertions and demanding payment under Section 512(f) of the DMCA"
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FatWallet Strikes Back Using DMCA

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  • Take a stand (Score:5, Insightful)

    by SteakJerky.com ( 621665 ) <jason@cobbenterprises.com> on Wednesday December 04, 2002 @09:03AM (#4809593) Homepage
    I'm a member of fatwallet, and I'm glad Tim is taking a stand. Copyrighting prices is the dumbest thing I've ever heard. These stores should have been glad for all of the free advertising, or at least accept that good information will not stay hidden long. I just feel bad that he is having to cough up so much dough to fight something so ridiculus.
    • Re:Take a stand (Score:5, Interesting)

      by nathanm ( 12287 ) <.nathanm. .at. .engineer.com.> on Wednesday December 04, 2002 @09:17AM (#4809695)
      Copyrighting prices is the dumbest thing I've ever heard.
      No kidding, since it isn't possible to copyright factual information.

      The phone companies tried to stop third party telephone directories from being published, but got shot down in court. The courts ruled that the information in the directories is not copyrightable.

      I just feel bad that he is having to cough up so much dough to fight something so ridiculus.
      If everything turns out well he'll get reimbursed by WalMart.
      • No kidding, since it isn't possible to copyright factual information.

        IANAL, but this isn't totally true. There are database laws (such as those in the UK -- not sure about US) where collections of facts can be copyrighted. There are examples in my field such as the Human Gene Mutation Database, which is a collection of facts and is controlled zealously. It isn't clear whether they are legally correct in that case, but "these facts" have resulted in $1+ mil deals. Collections of prices may fall under the same hood, IMO. (But I don't agree with the companies resulting actions)

        -Sean
    • Re:Take a stand (Score:3, Informative)

      by Lt Razak ( 631189 )
      The phone companies can't copyright your phone number right? But I'm sure they tried their hardest to push it when they saw other companies trying to hedge in on their 'money' cow. (Ads in phone book)

      Pricewatch [pricewatch.com] is a great example of how well comparing prcies can work. My only guess is 2 things. Wal-mart doesn't want people to know that they're really not "rolling back prices" as well as their competitors, or they just can't bear to stand anyone making any money on "their" hard work.

      Who knows. Pricewatch is opt-in. Fatwallet was not.

      Heheh, of course, Wal-mart selling my demographic information was NOT opt-in!

    • Have you noticed that they pick their targets? Slashdot posted the Black Friday list too [slashdot.org] but so far they haven't been threatened - probably because Wal-Mart is scared of going up against a real corporation like Andover.net. They're picking on people they believe are weak enough to buckle under to the DMCA.

      Good for Tim. Let's support him.
    • by Sloppy ( 14984 ) on Wednesday December 04, 2002 @10:41AM (#4810376) Homepage Journal
      Copyrighting prices is the dumbest thing I've ever heard.
      But without copyright, what incentive does Wal-Mart have to .. uh .. have prices?
      • by Rimbo ( 139781 ) <rimbosity@s[ ]lobal.net ['bcg' in gap]> on Wednesday December 04, 2002 @08:34PM (#4815464) Homepage Journal
        From what I understand, the reason Wal-Mart is able to beat people on prices and still make scads of money is that their business model is based on doing lots of research to pick up things at the cheapest (wholesale) prices in town, and then sell them for less than other retailers can.

        So Wal-Mart has put a lot of time and effort into how they price things (you notice that Wal-Mart has a lot of things selling for $4.67 and $3.12 rather than the standard $xyz.99 prices everyone else uses?) to get the most money out of the lowest possible price.

        FatWallet interferes with their ability to do that, by giving people instant access to information that takes Wal-Mart lots of time to gather. What used to be something only Wal-Mart did, is now something anyone with an internet connection can do.

        So basically Wal-Mart's just defending their turf; they know that if more people used FatWallet, it would be harder for Wal-Mart to make so much money from such low prices.

        The hubbub is going to hurt Wal-Mart in the end more than help, however. People, like me, who've never even heard of FatWallet.com are going to hit the site to see if they (or rather, I) can save money through the site as well... rather than just heading out to Wal-Mart for a price that may not be the lowest in town, but will beat most retailers.

        It's ironic, no? Wal-Mart feels a website is hurting its business -- and in attacking it, ensure that said website will hurt their business even more by drawing people's attention to it. Funny how heavy-handed legal action can have that effect!
    • by nortcele ( 186941 ) on Wednesday December 04, 2002 @10:49AM (#4810435) Homepage
      All this publicity has given FatWallet more exposure than would be possible otherwise. I had never heard of it before this... went and checked out the site... and found it to quite useful and informative. Mr. Tim could come out of this smelling nicely indeed.

      I almost forgot to include the obligatory DMCA comment. The DMCA bites.

    • by Didion Sprague ( 615213 ) on Wednesday December 04, 2002 @11:13AM (#4810626)
      IANAL, of course, but I'm sure WalMart sees prices not as "prices" but as notices of "strategic intent."

      The prices themselves aren't copyrightable I suppose, but the fact that the prices -- in the case of Black Friday, in particular -- are part of a larger strategy.

      In other words, WalMart probably doesn't care that that XBOX is ten dollars off -- or whatever -- but they do care that the fact of discounting that specific item at that specific pricing level is, in fact, a strategic bid to gain an advantage over shoppers at a specific place and a specific time.

      Now, before you flame, I'm not saying that WalMart is justified in what it's doing, but I do think that the idea of "prices-as-strategy" -- or better yet, Black-Friday-as-the-core-of-our-strategy-to-gain-a dvantage-over-our-competitors -- is something that's not been discussed much.

      I suspect they view the overall prices as a kind of "war document" -- much like any war plans that cross the president's desk. There will be a multititude of plans, of course, but part of the tactical decision making process is to sign off on a particular set of a plans, at a specific time, based on specific intelligence.

      Retailers, I'm sure, view Black Friday in very much the same way.
      • ...is, in fact, a strategic bid to gain an advantage over shoppers at a specific place and a specific time.

        So I guess the matter at hand is this: the current environment of exchange of information makes this sort of strategy impossible. Rather than adapting to a changing environment, Wal Mart is using the DMCA as an omnibus anti-information sharing legal cannon to attempt to force by legislation what they can no longer accomplish in fact.

  • by digitalmuse ( 147154 ) on Wednesday December 04, 2002 @09:04AM (#4809599)
    I can only hope that this case gets enough media attention to make Wal-Mart lovin' Joe Sixpack stand up and take notice that this whole DMCA thing affects him as well. I would also like to think that this will be a good case to showcase how over-reaching and prone to abuse laws like this are.
    If anyone finds any more links about how FatWallet.com is persuing this case/counter-suit please post 'em here!.
    So far all I found was this http://www.ascribe.org/cgi-bin/spew4th.pl?ascribei d=20021202.112004&time=11%2043%20PST&year=2002&pub lic=1 [ascribe.org] at ascribe.org.
  • by mat catastrophe ( 105256 ) on Wednesday December 04, 2002 @09:08AM (#4809625) Homepage

    Unless I am missing something here, which is just about as likely as snow falling outside right now (oh, crap, it *is*), why would corporations be uptight about their sales info getting pushed out to a wider audience? Isn't this exactly what their advertisements are supposed to do?

    I think maybe this shows that the people who run/are our economy here in the States are just deranged. Now, if the site took straight files from websites, that might constitute a violation (albeit a very minor and sketchy one at best). And, if they posted this information well before the company's in question had officially released the info, that might also be serious. But I can't tell from either FatWallet post when these ads were published or, to be honest, what all the whoo-ha is in this brouhaha.

    • by UCRowerG ( 523510 ) <UCRowerG@@@yahoo...com> on Wednesday December 04, 2002 @09:10AM (#4809643) Homepage Journal
      I believe they wanted to keep a lid on their prices until Nov. 29th so that their competitors wouldn't be able to undercut their prices at the last minute, and so pull potential customers away.
      • by Mr Guy ( 547690 ) on Wednesday December 04, 2002 @09:15AM (#4809687) Journal
        Exactly, as discussed to death before when the original threats were made. They really weren't copywrited, they were trade secrets. Of course in the end you still have Wal*marts Lawyers against Fat Wallet, and despite the name I bet I can guess who has the most change to toss around.

        The real goal is to make a big enough stink for newspapers to smell it and start reporting on this sort of crap. Then he'll win in settlement, they'll have to drop their stupid claims, and companies may think twice before their legal departments get too seperated from their public relations.
        • Hmmm. I thought it was the responsibility of the company in question to protect their trade secrets... i.e. to keep them secret. If someone they don't want to be informed gets the information, that should be their fault. In no way should that person be obliged to not share the secret with others.
          • They were trying to, by making their frivilous claim against FatWallet. They're claiming their prices are copyrighted so they can use the DMCA to subpoena the identity of the person the person that violated their (silly, but legal) trade secret rights.

            It's an odd case, really. The DMCA doesn't actually apply to trade secrets. They're exploiting the letter of copyright law to actively defend their frivilous trade secrets. The idea was to intimidate fatwallet into rolling over and complying.

            • One might argue, though, that if the prices were not yet published and not yet current, then they did not represent factual data yet. If they were not facts, then they were opinions (statements of intent), which can be copyrighted.
      • by mat catastrophe ( 105256 ) on Wednesday December 04, 2002 @09:25AM (#4809748) Homepage

        OK, so now it makes a little more sense. But, here's the thing. I just don't buy that at all.

        If you've ever looked at the ads in a Sunday paper, and maybe this is not the case everywhere - and maybe I'm just straining at gnats to come to this conclusion - then you will notice that a lot of companies who are supposedly in "competition" seem to be acting in a coordinated fashion.

        It seems to be that Best Buy and Circuit City run the exact same sales on alternating weeks. One week, hard drives go down at BB while CC runs a sale on monitors. The next week, it's reversed. And the prices are almost always exactly the same. Of course, I don't have a whole lot of empirical data to back this up, just recollections of reading these ad circulars pretty religiously for several months.

        The same is seemingly true of Wal-Marts/K-Marts/Targets of the world. They run pretty much the same deals at the same times (or within a week or two). That's not really competition, that's more like price fixing in my mind. Can we file a class-action suit against these companies or at least a complaint with one of the Federal agencies and force an investigation into sales practices? Or, would this idea also get lost in 21st Century America's more-or-less apathy and/or ignorance?

        • It is not so much collusion as it is everyone knows what the other guy is doing. They all know what the costs are, what kind of profit margins are acceptable, which items are 'loss leaders' etc etc.

        • What I don't get are the Coke and Pepsi sales that happen throughout the year. Right now, Wal-Mart and a number of the retail stores have Coke 2-liters on sale for $.78, which is the best price you'll see all year. Coke is running about $1. In a week or two, it'll be mostly reversed. Then for another week or two, both will be at $1. I've always wondered what was going on with those two manufacturers and their logic of alternating price shifting of 25% or so.
          • Alright... here's the deal with Coke, Pepsi, and Walmart.

            There's the reglar walmart price, which will be a few cents less than the places that are on their list of folks who's prices they'll match automatically (large grocery chains, other bog box stores etc). They make a slim profit on this... but, they make more money when people come in, buy Coke/Pepsi and grab some munchies.

            The Sale prices tend to be below the cost. This is to increase the number of customers in the store. Go in, load up on coke/pepsi, maybe grab some munchies, maybe a movie, or that DVD player...
    • In fact, they did post the info several days before the companies released their prices. As I understand it that was the major problem the stores had.

      Truth is, this stuff has been going on for years without the internet, but now the scope has broadened it. These prices have to be determined by someone, then printed by someone, and then distributed by someone. Each of those people would tell their friends, and maybe some of those people would tell their friends, but that was it. Now with sites like fatwallet, those friends number in the hundreds of thousands.

      • So, the question now remains how the first person(s) to report this got that info in the first place. If the company was trying to keep a tight lid on leaking prices to competition, then how did this information get out?
    • Part of the issue may be FatWallet posting sale prices before they were advertised by the retailer, possibly a trade secret issue.

      But another possible issue is price comparison sites and deal finder sites and the way they are being used are compromising the very idea of a loss-leader and the way retailers use sales and specials.

      Take CR-Rs as an example. Walk into any computer or office supply store, and you'll likely some deal for free or almost free CR-R spindle (at least given my experience with computer and office supply stores in the US of A). Maybe 50 disks for $25 with a $10 instant rebate and a $15 mail-in rebate. They're not banking on the profit from giving away disks, but hoping your shopping list includes several items that are profit-makers. You pick their shop for the cheap disks, but buy all the items on your list.

      However a lot of people, and I suspect a large portion of the audience for a site like FatWallet, don't shop that way anymore. If they have 5 items on their shopping list, they go to 5 different retailers if that gives them the best deal. At each retailer they only buy the one loss-leader and nothing that yields any profit. For example, my last new computer came from a half dozen or so different retailers. The only times I bought more than one item from a single shop were obvious combinations like cpu/mobo and case/power supply.

      I think FatWallet is 100% right and hope they stick to the suit and win, and whomever at the big retailers decided to invoke the DMCA in this case should be taken out back and shot. But I also understand why the retailers might not see FatWallet as free advertising.
      • by mpe ( 36238 )
        However a lot of people, and I suspect a large portion of the audience for a site like FatWallet, don't shop that way anymore. If they have 5 items on their shopping list, they go to 5 different retailers if that gives them the best deal. At each retailer they only buy the one loss-leader and nothing that yields any profit. For example, my last new computer came from a half dozen or so different retailers.

        People have been doing this for a long time, known as "shopping around". The only difference with services like "FatWallet" is that the customer does not need to physically visit each store to check the prices. If stores have a problem with this then they need to find a different business model.
    • by gidds ( 56397 )
      why would corporations be uptight about their sales info getting pushed out to a wider audience?

      For the same reason that record companies are scared by P2P sharing, the internet, and the possibility of circuventing their restrictions: control. Companies are just control freaks. It's all about control.

    • why would corporations be uptight about their sales info getting pushed out to a wider audience? Isn't this exactly what their advertisements are supposed to do?

      Are the corporations really uptight? Do they even know this happened? This wouldn't be the first time that some trigger-happy lawyer quoted the DMCA in a cease-and-desist letter, when really, his client didn't give a flying fuck.

      Maybe I'm cynical, but I'll bet in most stupid copyright cases where the assertions are unfounded or ridiculous (like the "Bill Wyman the reporter needs to prove that's his real name" case) the lawyers are acting on their own, without any consent or direction from their clients.

      • Maybe I'm cynical, but I'll bet in most stupid copyright cases where the assertions are unfounded or ridiculous (like the "Bill Wyman the reporter needs to prove that's his real name" case) the lawyers are acting on their own, without any consent or direction from their clients.

        Having experience employing lawyers, I'll say that with few exceptions, this is wrong. What will happen is that you go to your lawyer and you say "I'm mad that this web site is printing bad things about me. Is there anything we can do?"

        And the lawyer will give you a menu, essentially -- what you could pursue and what your chances of success are. If they're any good, they'll be realistic -- "we can sue for this, and they'll probably cave, but if it goes to court, it'll take six months and you'll have to consider the public relations issues".

        But they'll need you to give the go-ahead to file, to pursue certain actions, to negotiate a settlement. They're not lone wolves.

        Now, they're going to want you to use them, generally speaking -- they're hammers, they're going to see nails. The mistake people make is using their lawyers as their only tools, or relying on them above all else.

        When you see a reputable law firm (ie, not Lionel Hutz, Law Talking Guy Ltd.) suing for something stupid, that's what's happened -- the plantiff went to them and told them to pursue whatever slim opportunity they had in front of them. And for the lawyers, it's as if you're a home builder and someone's insisting you put their mansion on a flood plain. You can advise them against it all you want, but if they're hell-bent on it, they're the boss.

        Now we can argue if ethically they should refuse to prosecute these cases, but the core issue is that reputable lawyers don't pursue cases on their own.

        -- q
  • DMCA good or bad? (Score:3, Insightful)

    by Anonymous Coward on Wednesday December 04, 2002 @09:09AM (#4809631)
    Depends on who is using it.

    How funny is that?
    • nope ... definitely bad.

      of course, if you try to beat me with your evil, nasty bludgeon, but I take it from you and give you a coupla whacks with it... it's still an evil, nasty bludgeon.

      I'd call it "giving walmart a taste of their own medicine", and they deserve it, given how they abused an already heinous law...

  • by Oo.et.oO ( 6530 ) on Wednesday December 04, 2002 @09:09AM (#4809633)
    maybe wal-mart is _trying_ to kill the DMCA?
    >:-D
  • by night_flyer ( 453866 ) on Wednesday December 04, 2002 @09:09AM (#4809636) Homepage
    copyright? you cant copyright a price any more than you can copyright an idea or a word.

    • copyright? you cant copyright a price any more than you can copyright an idea or a word.

      Sorry, your use of the word "a" violates a copyright I've got. Prior use and all that. Since you've used it twice, cough up $200 and send it to 742 Evergreen Terrace, $mycity $mystate.
  • by Shadukar ( 102027 ) on Wednesday December 04, 2002 @09:10AM (#4809648)
    This legislation has been abused like a village bicycle!

    Why the heck does it still exist? You know its bad, I know its bad, if you explain it to a regular joe, he will know it is bad.

    Whats happening? Anyone who wants someone else on the internet to shut up, uses DMCA.

    Is it too broad? Heck yeah! Are lawyers using it whenever they can? Sure, /. is full of stories like that. Needless to say fatwallet is an interesting concept that deservers a fighting chance. I am happy that they decided to show spine. Real spine like that is seriously lacking these days.

    I really hope that fatwallet has a clued-in lawyer for this. I hope that the judge will be half as clued-in as the above mentioned lawyer. I hope fatwallet wins fat damages.

    I mean, Fat damages, damages so fat, next time greedy_company_01 comes to their lawyers crying, the lawyers instead of saying "yes sir, straight away sir, we will use DMCA sir" will say "erm, you have absolutely no case whatsoever, if you want to continue legal action, this will cost you way more than its costing you now"

    Lawyers aint cheap and when court orders someone to pay for the damages/legal costs, it aint cheap.
    Thus, one of the great ways to defeat DMCA absue in the future is to make it costly for those idiots who pull out DMCA whenever they think they are loosing a few cents to competition/someone smarter.

    So, in conclusion of my long-winded post, OG OG fatwallet's lawyer! DIE DMCA, DIE! ;)

    • by JohnDenver ( 246743 ) on Wednesday December 04, 2002 @09:57AM (#4810002) Homepage
      Why the heck does it still exist?

      Because Hollywood/TV/Music industry gave $21,480,772 in soft money during 2002 to keep it there...

      Lawyers aint cheap and when the court orders someone to pay for the damages/legal costs, it aint cheap.

      Lawyers gave $12,074,762 in soft money during 2002 to make sure these disputes can't be settled without them...

      This public service announcement was brought to you by Open Secrets [opensecrets.org]

      People who truely believe in free market economies would never let the government regulate technology like this, or sanction a virtual monopoly to the Baby Bells, or give the FCC the powers it has to stifle communications.

    • I think everyone is looking at this wrong. Those of you who think this is going to show how evil the DMCA is have it backwards: It's going to show that the DMCA is fine, because when companies use it incorrectly, they're going to open themselves up to big nasty lawsuits like the one Fat Wallet just filed.

      Yes, people have been abusing DMCA until now, but this'll be the big correction that puts everything back into balance. Especially if Fat Wallet wins.

      Remember, if oyu use the DMCA, one of two things is true:

      1) You own the copyright, in which case you're perfectly justified in asking that the material be removed, and DMCA saves a lawsuit

      2) You don't, in which case you just committed perjury and can be sued for easy money.

      (IANAL)
  • Defense fund? (Score:3, Interesting)

    by BlueAlien.Org ( 82929 ) on Wednesday December 04, 2002 @09:11AM (#4809656) Homepage
    I would like to contribute to a defense fund of sorts for FatWallet - this is a worthy fight and legal fees are going to be expensive - anyone know if they are accepting donations or not? This case can set a very scary precedent, so hopefully this will gain national news.

    - Rick
    • by stomv ( 80392 )
      No need. They're a bunch of lawyers. But you knew that, because you read the links.
      (Sarcastic: -1)

      From this linky dinky, [fatwallet.com]:

      Megan E. Gray is a principle in the law firm Gray Matters in Washington, DC. She represents many clients in connection with intellectual property matters, internet issues, online privacy, anonymous speech, and related issues. More information about Gray Matters can be found at http://www.megangray.com.


      The Samuelson Law, Technology & Public Policy Clinic at Boalt Hall represents individuals and non-profits on privacy, copyright, and First Amendment issues relating to the Internet and other advanced technology. More information about the Samuelson Clinic can be found at http://samuelsonclinic.org.
    • Funny thing though. At this point, FatWallet doesn't need to mount a defense. They're now the plantiff's.

      FatWallet complied with the takedown demand through Thanksgiving when the ads clearly became public knowledge. Now, they're turning around and using one of the less-talked-about provisions of the DMCA that lets somebody who complies with a phony takedown notice to sue for damages.

      Now, if FatWallet loses all they're out is some laywer fees, but if FatWallet wins, Walmart's on the hook...
  • by jmcwork ( 564008 ) on Wednesday December 04, 2002 @09:11AM (#4809657)
    It was that little 'Smiley' guy that is always cutting the prices. He was ticked off about being overworked and underpaid.
  • Copyright (Score:3, Funny)

    by joelwest ( 38708 ) <(moc.tsewleoj) (ta) (leoj)> on Wednesday December 04, 2002 @09:13AM (#4809674) Homepage
    To be quite honest the absolute absurdity of the DMCA and it's application leave me completely astonished. Now if we could only copyright the usage of written or typed glyphs whereby grouped to represent phonemes. Hmmmm...

  • by Badgerman ( 19207 ) on Wednesday December 04, 2002 @09:13AM (#4809677)
    This gave me a chuckle. The DMCA is basically being used on itself. I guess it's sort of a mix of silly putty and a swiss army knife, apparently - shape it to anything, do anything you want!

    More power to FatWallet. Let's hope this not only saves them, but deters future DMCA stupidity and helps point out how dumb the DMCA was in the first place.
    • The interesting thing in the "P2P Wars" here is that if the court holds that incorrect application of the DMCA is a tort in and of itself, that could mean any attempt to chase P2P users has to either be pefect at the risk of losing more than they gain.
  • by nochops ( 522181 ) on Wednesday December 04, 2002 @09:15AM (#4809689)
    Why would a company want to stop this free advertising?

    Well, if their prices are not the lowest, they obviously don't want that to be a well known fact.

    Once again, this is just a case of old time, brick and mortar mentality creeping into the global, immediate nature of the internet.

    Before the internet was so popular, consumers actually had to get off their fat arses and go to the stores to shop/compare prices/etc. Sure there were newspapers and magazines that made it possible to compare prices, but these can hardly compete with the speed and penetration of the internet.

    What happens if everyone knows of a website where they can go to see retailers prices on certain products? They most likely choose to buy from the retailer with the lowest price. That is, unless they have some personal loyalty to a higher priced retailer, or perhaps they had a bad experience from the low price retailer, and won't buy from that particular store.

    Obviously, this is bad news for the retailers. I'm sure that they made quite a few sales based on impulse, where the consumer is in the store, looking at the product, and is tired of driving all over town looking for the best price. He's gonna buy at a higher price, right? That's what the retailers are betting on.

    Unfortunately for the retailers, the internet is forcing them to rethink their business strategies, and sometimes it's easier for them to bully the little guy than to change their entire strategy.
    • Why would a company want to stop this free advertising?

      There's actually a pretty good reason for this. The sales prices in question were advanced information on prices on the most competitive shopping day of the year. Typically, each year, consumers spend more money on the day after Thanksgiving than any other day. Knowing this, most of the big retailers slash their margins on certain key products to almost nothing (sometimes even to loss levels) in order to woo customers into their store. In other words - Wal-Mart might take a loss on a certain hot item, knowing that this would bring tons of customers into their stores. They will make up their money when these customers buy other items as well.

      Now here's the problem: this technique only works well when you have the lowest price around. If your competitor (let's say Kmart or Target) finds out in advance and udercuts you a few dollars, not only are they getting those customers you hoped to woo, but you've got an item on your hands that's losing you money. Ideally, in the capitalist world, you'd simply lower your prices another notch, right? Well, unfortunately, circulars and advertising take time and money to create, and assuming you knew about your competitor's decision, you probably don't have the time to adjust. And you can be damn sure that your competitor isn't just going to call you up and tell you about THEIR promotion.

      These types of games can end up making companies millions, or losing them. I used to work in advertising at a newspaper. This is why our clients could never come back to our production areas. We placed a great deal of importance on safeguarding this information for our clients. So THAT's why they want to stop this 'free advertising.'

      That having been said, FatWallet is obviously beeing abused by the BigCompany/Lot'sOLawyers syndrome and I'm glad they're fighting back. It seem's to me that the main reason that they used the DMCA in this case and one of the worst features of the bill is because of it's ability to suppress content prior to due process. And trade secrets or no, in my books that's just plain wrong.

  • by sterno ( 16320 ) on Wednesday December 04, 2002 @09:17AM (#4809692) Homepage
    What's interesting is that if you read the fax that walmart sent, they don't say that Fatwallet is violating their IP rights by publishing the prices, they instead say that he's publishing their circular. This is definitely splitting a very fine legal hair. It's probably defendable to say that the circular is copyrightable, but the prices contained therein is a serious stretch.

    Well, here's hoping that fatwallet gets their wallet fattened by a nice check from walmart. I wasn't aware that there were provisions in the DMCA for getting damages and legal fees for abuse of the law. While I still think much of the DMCA is some of the worst legal authoring this country has seen, it does show that at least somebody was paying attention when it went through the legislature.
  • by s4m7 ( 519684 ) on Wednesday December 04, 2002 @09:25AM (#4809745) Homepage

    there is a discrepancy between what walmart and fatwallet are saying. Walmart asks for the removal of "their Circular" and fatwallet claims they had "sale price data" posted. these two things are clearly different. if someone posted walmart's flyer, in it's entirety and unedited, then that IS a copyright violation. after all, walmart does pay someone to make those idiotic things.

    if, on the other hand, the original poster was not so lazy, and typed out the data, then walmart has no claim. In fact, fatwallet would have only legitimized their claim by removing anything from their site after walmart requested the removal of the Circular. So was it a link to scans? because if it was, shame on fatwallet, for removing something they weren't asked to remove.

  • The plan here... (Score:2, Interesting)

    by 241comp ( 535228 )
    I think the plan here, though, is to win the case (hav the court say they overstepped the DMCA). That, however, is not the best solution. The best solution would be to "lose" the case, and have the DMCA tossed on appeal. At least, that's the way it seems to me. Opinions?
    • I'm not sure where this idea that the good guys have to lose in the short term to win in the long came from. The other side can appeal too. FatWallet could win this round then one of the defendants in an excess of zeal or stupidity appeals and loses again in the appeals court. In fact, I would think the deep-pocketed retailers would be more likely to appeal than a small corporation or individual.
    • Actually, FatWallet's plan is probably "win, so WalMart shuts the hell up."

      Now, it would be nice if this resulted in the DMCA getting tossed, but I see a better possible scenario:

      FatWallet Wins. WalMart appleal.
      Appelate judge also sides with FatWallet, broadening the jurisdiction where the DMCA has been overturned.
      Walmart continues to appleal until the DMCA is overturned across the USA.

      You see, you don't have to loose the initial round in order to overturn something. If you win, even in the lowest court, it sets a precedent. Then, if it goes to appeal, you have the added ammunition of saying "see, this first judge agreed with me." Of course, IANAL, so YMMV.
  • by Basje ( 26968 ) <bas@bloemsaat.org> on Wednesday December 04, 2002 @09:26AM (#4809755) Homepage
    because of bad laws about (electronic) intellectual property. That's the only way the politicians here in Europa will have their eyes opened before we have similar laws.

    So therefor I support any lawsuit based on the DMCA. Not because I am in favor, but because I oppose it.
  • by yuri ( 22724 ) on Wednesday December 04, 2002 @09:28AM (#4809772)
    These tiny davids like Walmart must be helped to stand up against the Evil Goliaths like FatWallet. As soon as you let people find out about a special, they are going to buy the product, causing massive cost overruns as the stores have to RESTOCK the shelves with new product. The cost of the actual wholesale merchandise is a large part, maybe 25% of the cost that the consumer in the end pays. Many people forget about this and only concentrate on the 5% that goes to salaries, 5% rent, 20% marketing and 45% profit. Somebody has to pay this 25%, and you can be sure it's not going to be FatWallet.

    I say retailers should fight back, by introducing a copyright friendly pricing structure. Tickle me Barbies only 48 DoodlyDishus Dollars, Ninety N-N-N-N-Nine cents. Surely that creative effort can be copyrighted.
  • Favorite Quote (Score:4, Interesting)

    by Jaysyn ( 203771 ) on Wednesday December 04, 2002 @09:33AM (#4809798) Homepage Journal
    "This is an outrageous example of a corporation contorting copyright law and attempting to use the DMCA to out the identity of an individual sharing factual information. The DMCA's subpoena provision, which allows an entity to demand the identity of an alleged infringer from an Internet service provider prior to filing a lawsuit, is controversial to begin with. Behavior like this shows how susceptible it is to abuse."

    This is the type of info that needs to get out to the public...

    Jaysyn

  • by MarvinIsANerd ( 447357 ) on Wednesday December 04, 2002 @09:38AM (#4809832)
    I am in no way advocating the use of the DMCA for anything (it sucks)... but I think most of us here are missing some big points.

    1) The sale prices are used by the retail stores to give people a reason to walk into the store. They lose money on these sales, but they do this because they know that once they get you into the store, you will more likely than not buy something else too. This is called baiting the hook. Having prices posted everywhere in advance defeats this entire scheme. Now customers will just already know what is on sale before entering the store and just get what they want and get out. No profit to be made there. This is why they are mad.

    2) Prices are NOT protected under the DMCA. This is not what they are mad about. What they are mad about is the DIGITAL MEDIA that the prices were listed using were stolen and posted. To make this clear - Best Buy sends the sale prices on digital media to, say, the Washington Post for advertisement on Friday (the same day of the sale). At the Washington Post an employee takes a look at this digital media and says, hmm... that is nice, and copies it to be posted. The problem with that is this digital media has been copyrighted by Best Buy... so the person posting the prices is guilty of theft of copyrighted data. It doesn't matter what the copyrighted data is (happens to be prices in this case), it is still digital media theft, and that is what the DMCA is for.

    3) The web site has been subpoenaed to reveal the name of the poster. Most likely this poster is someone who works for a publishing company such as the Washington Post or whoever. This person will most likely be fired if his name is revealed. I am sure publishing companies like the Washington Post have an NDA agreement with its various advertisers. Posting prices is a blatant violation of those NDA's. And the person who stole the digital media knew this, and did it anyway - I am not sure why but he was thinking Best Buy would not care. How wrong he was.

    4) I hate the DMCA - I don't like how it controls me and the stuff that I own. I am not advocating the DMCA in any way. I am just showing you all WHY the DMCA applies in this case. It is not the prices itself - it is the digital media the prices were on.

    Ctrl-Z
    • by ewanrg ( 446949 ) <<moc.liamg> <ta> <mahtnarg.nawe>> on Wednesday December 04, 2002 @09:46AM (#4809897) Homepage
      I disagree about your argument - mainly because you are leaping to an assumption that there was Digital Media involved in any form. There's no reason to believe the information wasn't posted by someone at WalMart who read a report - or in your example that someone saw a printed flyer before it was actually distributed.

      As such, the only way that WalMart could prove the DMCA had been violated is to assert that it was to get the source revealed so that they could show it had been. But if it wasn't violated then the source shouldn't be revealed under standard First Amendment protection of sources.

      I am not a lawyer, YMMV, etc.
    • by Quila ( 201335 ) on Wednesday December 04, 2002 @09:50AM (#4809930)
      And a list of prices is a collection of facts. Had the prices been printed on a nice ad with formatting and pretty designs, the whole can be copyrighted, but the mere facts presented on the page are free to redistribute.

      Read the DMCA response letter by FatWallet's lawyers to get the appropriate Supreme Court rulings.
      • Firstly, a collection of facts can be copyrighted. This is why telephone books are copyrighted. There's nothing stopping you from picking and choosing bits of data and assembling your own collection, however, provided it's not just repackaging most of the collection in its original form.

        Secondly, if prices were not yet published and not yet current, then they do not represent facts at all, they represent opinions/statements of intent, which should be copyrightable.

        Though I am not a lawyer...
    • I may be going off on a tangent here, but if information is gathered in an illegal way, that doesn't stop others from using it. Linda Tripp's recorded telephone conversations with Monica Lewinski were made without Monica's knowledge, yet were used as a basis for investigation of the President, Bill Clinton.

      It seems that the law is still unclear (or I am), since if the same were done by police without a warrant, it would be inadmissible (pre PAT-RIOT act).

      Perhaps that's why we have the DMCA in the first place: D.ammit! M.onica C.an't A.nswer.

    • The parent to this post is spot-on. The key to this case is whether any digital media (such as a html file containing a price list, or a PDF) has been copied or not. If it is, then Walmart *does* have a case since an actual copyrighted *file* has been copied (the fact that the file contains a non-copyrighted price list is irrelevant, the file itself is still copyrighted).
      But, if no digital media was copied, if someone just looked at Walmart's price list and typed down the prices in a post on FatWallet, then Walmart *doesn't* have a case. I repeat, this is the *key* to this whole thing.
      • Sorry, but this is just pure baloney. Non-copyrightable material does not become copyrightable just because it lives on a floppy disk or a CD. The DMCA is the Digital Millenium Copyright Act, not the Digital Media and Whatever Junk is on it Act. If the content is not copyrightable, DMCA doesn't even purport to protect it, whether it is written in a digital file, steganographed into my hairdo, or whatever. And prices, as so many have stated already, are simply not copyrightable.

    • by stilwebm ( 129567 ) on Wednesday December 04, 2002 @11:18AM (#4810670)
      2) Prices are NOT protected under the DMCA. This is not what they are mad about. What they are mad about is the DIGITAL MEDIA that the prices were listed using were stolen and posted. To make this clear - Best Buy sends the sale prices on digital media to, say, the Washington Post for advertisement on Friday (the same day of the sale).

      I work for a publishing company that does the same type of work for clients.

      While this would be true if BestBuy had an ad on the inside of the the actual paper, say page three of the front section, this is not true for inserts. Inserts are the type of ad all of the companies who used the DMCA against fat wallet exclusivly used - multipage full color stand-alone sections.

      These are not ever sent in digital format to the paper. They are sent in digital format to a printer like Quad Graphics [qg.com], who in turn prints the insert and then distributes it to many markets. This process starts well before the paper is distributed to newstands and homes - as much as two or three weeks in advance. With a full page or smaller (or a spread, two facing pages) ad, the digital media is sent to the paper or magazine around 24 hours before the publication goes to press.

      Large printing companies like Quad and Brown have very strict confidentiality agreements for their workers. They are compensated well, screened well, and have never been openly accused of sharing this type of information with outside workers - their reputations ride heavily on this Instead, it is highly probable that the theft originated with someone inside each of the companies who had access to the pricing as the inserts were being created.

      I confirmed this with our production manager who once worked for a national retailer that did Black Friday inserts - she also suspected people inside the companies were responsible for the initial leaks. She knows from firsthand experience that people rushing to prepare holiday ads are often disgruntled and/or overworked and more likely to make mistakes or blatent confidentiality breaches.
    • You do realize what the term "Black Friday" refers to don't you? It's the day when stores come out of the red (losing money) and go into the black (profit). It's the biggest shopping day of the year. Ma and Pa Smith are out buying the kids and grandkids all their presents. Whether a few savvy shoppers have the prices a week in advance or not, does not matter. I can also guarantee you that stores are not selling these promotion items below cost. They are most definately still making a profit.

      Secondly, it is most likely not employees of newspapers that are giving this information out, but in fact employees of the store. If you have ever visited a site like FatWallet (I've been a member for 2 years now) you'd know how many of the members work at retail stores and provide this kind of information on a regular basis. They do their part in return for deals that others find around the internet. It's a community.
  • by geoff lane ( 93738 ) on Wednesday December 04, 2002 @09:39AM (#4809841)
    As someone already pointed out, the price information is actually a trade secret. Walmart's problem is that the secret has to be distributed to 1000's of stores, PR and advertising companies, newspapers and magazines before the start of the sales.

    It's the responsibility of the owner of the trade secret to protect the information. By giving it to so many people outside Walmarts direct control, they have demonstrated that they are not protecting the trade secret.

    Walmart loses!

  • by twocents ( 310492 ) on Wednesday December 04, 2002 @09:42AM (#4809861)
    I'm glad I saw this blurb, otherwise I would have never known there were sales after Thanksgiving.
  • by mshiltonj ( 220311 ) <mshiltonj&gmail,com> on Wednesday December 04, 2002 @09:43AM (#4809866) Homepage Journal
    I will become a user of fatwallet. I will support thier advertisers. Any company that has the balls to do this deserves my support.
  • by browser_war_pow ( 100778 ) on Wednesday December 04, 2002 @09:44AM (#4809875) Homepage
    Make filing frivolous lawsuits a criminal offense for the attorney and plaintiff.
  • Hmm (Score:5, Interesting)

    by teamhasnoi ( 554944 ) <teamhasnoi@[ ]oo.com ['yah' in gap]> on Wednesday December 04, 2002 @09:53AM (#4809964) Journal
    Is this copyright infringement? It is not, because copyright only protects the expression of an idea, and not the idea itself. Consequently, a retransmission of the ideas, facts, or even conjectures (which are not themselves copyrightable elements) in the retransmitter's own words does not constitute a copyright infringement, and is itself as protected by copyright as the original posting. From a legal standpoint, this is the preferred method for information to propagate across the net. quoted from here [benedict.com]

    I'm not sure that you could even put a price 'in your own words'. Perhaps a script to change the 'offending' price into words, such as, "Thirteen dollars and twenty-seven cents". But that is plain dumb.

    A price can't be copyrighted, any more than I could copyright "ABCDEFGHIJKLMNOPQRSTUVWXYZ1234567890". If this weren't true, I could have just copyrighted all the letters in the Alphabet, and Walmart and Best Buy would be fighting over who owns the copyright on '$9.95'.

    I'm not sure where the DMCA comes in to the original complaint, as reading a price or marketing blurb is hardly 'reverse engineering' or 'breaking copy protection'. If these companies encrypted their prices prior to publication, it would be easier to track who has access to them, and we would then be talking DMCA.

    If anything is wrong here, it's the fact that there are leaks in the companies. Perhaps if they were paid to keep their mouths shut, the employees wouldn't talk. Or still would. There is something to messing with your company, especially when you're just a cogwheel out of zillions and can be replaced or removed without notice. Maybe a rush of power comes over these people, or they have just watched 'Office Space' 32 times. But I digress.

    There was a issue similar to this going on here in Minnesota, when big grocery store chains [twincities.com] got into a sue-fight over the 'theft' of prices that had yet to be released.

    To sum all this up, as long as fatwallet is 'reviewing' prices and service, I can't see how they can be liable.

    • I'm not sure that you could even put a price 'in your own words'. Perhaps a script to change the 'offending' price into words, such as, "Thirteen dollars and twenty-seven cents". But that is plain dumb.

      i think what you're missing is the original poster's comparison between copyrightable works (e.g., Tolkien's Lord of the Rings) and non-infringing uses (e.g., a copy of the Cliff's notes of the same).

      although the cliff's notes tell the entire story, and discuss the themes (i.e., ideas) within, they don't use the expression of the story (i.e., the exact text) in a non-infringing way.

      in the same way, if we allow that the circular is copyrightable, then it's the expression of the prices (e.g., layout, design, etc) that's copyrightable.

      i would argue that a large portion of what's copyrightable in the circular is not the prices themselves. so, if one publishes only the prices and the item names (and serial numbers) from various circulars, then what we have here is an index / compilation, which, if i remember correctly is a non-infringing use of copyrightable material. (of course, ianal..)

  • by icewalker ( 462991 ) on Wednesday December 04, 2002 @09:57AM (#4809998)
    The bickering is good and all, but you should just fight back a different way. Boycott Wal-Mart. I already have. I can't stand a company that will clear cut acre's of land to build a store, when they have one down the street already! I see more "former" Wal-Mart's than I do open ones. All of them empty dinosaurs of wasted, asphalted, land!

    So, tell your family. Tell your friends. Tell Wal-Mart what you are doing and why! "No more business for you from me" is the message that needs to be sent. As Tim said in his article on FatWallet, "The Customer is always right". It's my money and I'll spend it where I want to. So if you don't like what they are doing, shop somewhere else!

    All you need is a google search to find a local walmart boycott [google.com] near you.
  • "Your demand ... is an abuse of copyright law. ... Sanctions for perjury may also be applicable, as well as penalties for violations of the ethical cannons governing attorneys."

    Looks like they're going to seek sanctions for perjury and go to the state bars and file ethics compliants against the lawyers representing these companies.
  • Although, I did think it was ironic earlier when they weren't appealing, because FatWallet didn't have enough money to go up against WalMart. But I'm very glad to see they've grown a pair.
  • Just sent (Score:3, Informative)

    by Smallpond ( 221300 ) on Wednesday December 04, 2002 @10:09AM (#4810115) Homepage Journal

    From : smallpond@juno.com
    To : customercare@joann.com, sales@joann.com
    Subject : DMCA abuse
    Date : Wed, 4 Dec 2002 15:04:47 GMT

    This is to inform you that I will no longer be shopping at Jo-Ann
    Stores due to your decision to apply the DMCA to prevent the
    internet site FatWallet.com from posting your sale prices.

    Abuse of the DMCA law by large corporations to stifle competition
    is a good example of what is wrong with laws enacted to protect
    special interests. It was a concern cited by opponents of the
    law when it was proposed, whose worst fears you have now realized.

  • Unbelievable (Score:4, Interesting)

    by r_j_prahad ( 309298 ) <r_j_prahad@NOSpAM.hotmail.com> on Wednesday December 04, 2002 @10:13AM (#4810141)
    Wal-Mart has cast-iron gonads to pull this shit. For $DEITY's sake, they're the sneaky underhanded outfit that sends spies into all the neighboring stores with UPC scanners and laptops so they can undercut the competition by $.01 and drive them out of business. If you try to throw a Wal-Mart spy out of your store, they get all up-tight and start screaming about freedoms and rights and the law and all that shit.

    Sounds to me like Wal-Mart is way overdue for a taste of their own medicine.
  • by maiden_taiwan ( 516943 ) on Wednesday December 04, 2002 @10:25AM (#4810242)
    [All together now...]

    D... M-C-A!
    It's fun to sue with the
    D... M-C-A!

  • Are there any organizations that provide defense support for these types of things? Maybe the ACLU would be interested since from FatWallets perspective this boils down to a privacy issue (not revealing the source of the prices)
  • Disappointment (Score:4, Insightful)

    by fobbman ( 131816 ) on Wednesday December 04, 2002 @10:45AM (#4810411) Homepage
    I'm a semi-regular visitor of FatWallet and the thing that disappoints me the most is that people continued to post published deals for those retailers who sent DMCA letters to Fat Wallet. It is a sad commentary to how whoreish people will be just to get "a good deal", no matter how morally-corrupt the retailer (or their attorney team).

    If these retailers are crap and you don't approve of their actions, then quit shopping there and stick to it. Merely saying that you think it sucks and then when the ad comes out talking about all the "kewl goods" you picked up at the sale shows that you approve of their actions.

  • by kagejishin ( 631359 ) on Wednesday December 04, 2002 @11:08AM (#4810582)
    I'm a longtime member of Fatwallet and I'd like to point out some facts to those people who claim that FW "finally got some balls". The reason the ads were taken down in the first place was that Tim (the mod) was not interested in fighting with the retail giants over information that he knew was easily accessible regardless. In the original response to retailers threats he mentioned that in order for the site to qualify for "safe harbor" status and avoid litigation the site was obliged to remove the information when he found it. However, given the nature of FW it was impossible to quash every post dealing w/ BF and the site allowed links to other sites (some hosted outside the US) which hosted the same information. The only reason litigation is being pursued now is that Wal-mart forced his hand by subpoenaing the personal information of one of FW's members. IMO, FW has done exactly what they should have. Avoided a pointless legal battle until forced into it and then protected the anonymity of it's members when threatened.
  • by Anonymous Coward on Wednesday December 04, 2002 @12:10PM (#4811050)
    News Flash!
    Walmart places copies of competitor ads inside thier stores. They use these to show the consumers which prices they will match from a competitor. If Walmart ads and prices are copyrighted then so are everyone else's ads and prices.

It is clear that the individual who persecutes a man, his brother, because he is not of the same opinion, is a monster. - Voltaire

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