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"
Take a stand (Score:5, Insightful)
Re:Take a stand (Score:5, Interesting)
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.
If everything turns out well he'll get reimbursed by WalMart.
Re:Take a stand (Score:2)
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:5, Informative)
The only possible way I could see these companies having a case is if the price data was not yet public. If it's not announced, and the prices are not yet current, then it's not factual data yet. It's a statement of intent (and something similar to a trade secret) at that point, in the form of a price. I can see how someone might consider that to be copyrightable.
Re:Take a stand (Score:5, Insightful)
Illegal, no, but presumably those who have access to trade secrets are bound by countract/NDA not to reveal it, so against contract: yes.
But trade secrets can still be copyrighted. Look at the Church of Scientology.
They can't enforce their NDA until they know who released the information, and they're using copyright law to figure that out.
Note that I'm not trying to sit on the side of WalMart or any of the other companies here, I'm just pointing out how they might have a case. Slashdot frequently needs a devil's advocate.
Re:Take a stand (Score:3, Informative)
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!
Re:Take a stand (Score:2, Funny)
Good for Tim. Let's support him.
Re:Take a stand (Score:5, Funny)
That's Wal-Mart's business. (Score:4, Insightful)
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!
FatWallet is making killing too... (Score:5, Insightful)
I almost forgot to include the obligatory DMCA comment. The DMCA bites.
No surprise -- it's all strategy (Score:5, Interesting)
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-
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.
Re:No surprise -- it's all strategy (Score:3, Insightful)
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.
Re:No surprise -- it's all strategy (Score:3, Insightful)
The issue is the overall pricing strategy. The prices are part of that strategy -- part of the big picture. No one's pissed at the free advertising, but the fact is that the so-called "free advertisting" when combined with other "free advertising" from competitiors may, in fact, work *against* WalMart. (But this gets into the so-called "legality" of comparison shopping which is, I think, a terrible, terrible argument -- and one that, I hope, WalMart doesn't try and pursue.)
It's similar to, say, a general planning for a war. Everybody knows artillery will be used. Everybody knows bombs will be dropped. Everybody knows troops will be involved. In fact, everybody might know that 20,000 troops are stationed in country A, 5,000 troops plus mobile artillery are in country B, and 300 special forces are in country C.
But what everybody *doesn't* know is how, when, and exactly where all these *individual elements* will swing into gear and bear down on the evil-doers still harboring chemical warheads from a decade ago and plotting regional domination.
Moreover, if the specific strategic plans for the actual battle are pilfered or stolen, then, sure, that's cause for some serious butt-kicking or, in the case of Wal-Mart, some major litigation.
Again, I'm not defending this particular tactic on the part of WalMart, but I think I can understand their rage. Someone pilfered private plans and made them public. The prices are part of a larger strategy which is -- and which should be -- private until it's explicitly made public.
Now, if WalMart made the error of putting the so-called "private" plans on a "public" webserver -- and simply didn't link to it -- that's a whole other issue. Obviously, they're at fault and can't much blame someone (no matter how hard they try) for tinkering around with URL combinations. (I think the analogy here might be if a general or a president had war plans on, say, an unprotected, public computer so that any Tom, Dick, or Swinin' Harry could log in, check 'em out, and do with them whatever he or she wanted to do.)
Re:No surprise -- it's all strategy (Score:3, Insightful)
Quoth the poster:
Copyright exists to protect creative works that are intended for publication . NO responsible military commander would DREAM of asserting copyright for a battle plan or strategic planning document, they just stamp them "TOP SECRET" and send anyone who leaks them to Leavenworth for ten years to life.The same thing applies to corporate strategies, although enforcement is through the civil courts rather than criminal courts-martial. Asserting copyright against one who publishes something that can only properly be protected as a trade secret is frivolous and abusive of the system, and I have a funny feeling that the next person who informs Wal-Mart of that fact is going to be a federal judge.
The situation here is simple. Wal-Mart's shyster lawyers saw how easily the MPAA used DMCA to get what they wanted out of 2600, how the RIAA handily pounded Napster into the dust and how Adobe had Dmitry locked up for MONTHS and said "These are easy to win
The quotes from Megan Gray and Deirdre Mulligan state the true matter of the case.
whoohooo! go FatWallet (Score:5, Insightful)
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?ascribe
Re:Use google news (Score:2)
Corporate Fuzzy Logic (Score:5, Insightful)
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.
Re:Corporate Fuzzy Logic (Score:5, Insightful)
Re:Corporate Fuzzy Logic (Score:5, Insightful)
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.
Re:Corporate Fuzzy Logic (Score:2)
Re:Corporate Fuzzy Logic (Score:2)
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.
Re:Corporate Fuzzy Logic (Score:2)
Re:Corporate Fuzzy Logic (Score:5, Insightful)
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?
Re:Corporate Fuzzy Logic (Score:3, Insightful)
Re:Corporate Fuzzy Logic (Score:3, Insightful)
Re:Corporate Fuzzy Logic (Score:3, Interesting)
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...
Re:Corporate Fuzzy Logic (Score:2, Interesting)
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.
Re:Corporate Fuzzy Logic (Score:2)
Re:Corporate Fuzzy Logic (Score:2, Insightful)
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.
Re:Corporate Fuzzy Logic (Score:3, Interesting)
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.
Re:Corporate Fuzzy Logic (Score:2, Insightful)
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.
Re:Corporate Fuzzy Logic (Score:3, Insightful)
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.
Lawyers do not act on their own (Score:3, Insightful)
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
Re:Corporate Fuzzy Logic (Score:3, Insightful)
Possibly because with traditional print and broadcast media there tends to be a reasonably large corporation doing the publishing. A website can be run by an individual or a small corporation.
So there might well be an issue of not wanting to pick on someone their own size involved.
DMCA good or bad? (Score:3, Insightful)
How funny is that?
Re:DMCA good or bad? (Score:2)
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...
wal-mart killing the dmca? (Score:3, Funny)
>:-D
I dont understand (Score:3, Funny)
Re:I dont understand (Score:2, Funny)
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.
Re:I dont understand (Score:4, Funny)
They are trying to avoid copyright infringement.
Re:I dont understand (Score:2)
Re:I dont understand (Score:2)
You mean like how a cow that flies is called a bird?
It's not possible to copyright an idea. You can patent an idea, and then it's called a patent. Copyrights and patents are two different things, and are covered by different laws.
ABN AMRO "de Bank" (ie. the Bank), copyrighted the italic printing of the article
No, they didn't. They got a trademark on it. This is also different from a patent, and (again) is covered by different laws.
Re:I dont understand (Score:2, Informative)
DIE, DIE DIE! ...oh please, why wont you just die? (Score:5, Funny)
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,
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!
but the DMCA is great for Hollywood and Lawyers!!! (Score:5, Informative)
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.
DMCA is... uh-oh... fine. (Score:3, Interesting)
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)
- Rick
RTFM (Score:2)
(Sarcastic: -1)
From this linky dinky, [fatwallet.com]:
Re:Defense fund? (Score:2)
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...
I know who posted the Wal-Mart info (Score:5, Funny)
Copyright (Score:3, Funny)
The DMCA - Rorsach Blot of Law (Score:5, Interesting)
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.
Re:The DMCA - Rorsach Blot of Law (Score:2)
I said it before and I'll say it again (Score:4, Interesting)
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.
Re:I said it before and I'll say it again (Score:2, Informative)
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.
Copyrighting their circular? (Score:4, Informative)
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.
Could someone clarify this? (Score:3, Interesting)
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.
Re:Could someone clarify this? (Score:5, Informative)
The plan here... (Score:2, Interesting)
Re:The plan here... (Score:2)
Re:The plan here... (Score:2)
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.
I hope the USA gets into loads of trouble (Score:5, Interesting)
So therefor I support any lawsuit based on the DMCA. Not because I am in favor, but because I oppose it.
Re:I hope the USA gets into loads of trouble (Score:4, Funny)
How many politicians are there on the various Jovian moons? ;-)
Re:I hope the USA gets into loads of trouble (Score:3, Funny)
How many politicians are there on the various Jovian moons?
Not enough.
Re:I hope the USA gets into loads of trouble (Score:3, Informative)
Re:I hope the USA gets into loads of trouble (Score:2)
DMCA reminds me of those little weapons in fighting games -- anyone can pick it up, and if you punch the guy in the face hard enough, he drops it!
Let protect these much abused retailers (Score:5, Funny)
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)
This is the type of info that needs to get out to the public...
Jaysyn
The whole point of Black Friday... (Score:4, Interesting)
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
Re:The whole point of Black Friday... (Score:4, Insightful)
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.
You can't copyright mere facts (Score:5, Informative)
Read the DMCA response letter by FatWallet's lawyers to get the appropriate Supreme Court rulings.
Re:You can't copyright mere facts (Score:2)
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...
They can try the trade secret route (Score:3, Insightful)
However, the letter did mention the possibility of the stores claiming trade secret, but dismissed that possibility fairly well too.
Wal-Mart was supposed to decide whether to withdraw the subpoena yesterday. If not, FatWallet reserves the right to wait until the 10th to file a motion to quash. Since Wal-Mart claimed copyright violation as the reson behind the subpoena, then their subpoena is baseless and will probably be quashed. They should have claimed trade secret.
Re:The whole point of Black Friday... (Score:2)
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.
Re:The whole point of Black Friday... (Score:2, Interesting)
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.
Re:The whole point of Black Friday... (Score:3, Insightful)
Re:The whole point of Black Friday... (Score:5, Insightful)
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.
Re:The whole point of Black Friday... (Score:3, Insightful)
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.
Re:The whole point of Black Friday... (Score:2, Insightful)
I just think this whole argument about the "poor stores" who are "losing money" on my purchase is dumb. Perhaps the stores are making $0 profit, or even a slight loss on that product, but they are limiting their losses by stocking a very small quantity of those items on the day of the sales.
Their ads claim "minimum 15 per store" but they might as well say "We only have 15 in each store, and if you aren't in the line at the front door by 5am you certainly aren't getting one of them".
Anyways, I would dispute that Best Buy et al lost any money on their super low priced products -- these stores are big enough that they can go directly to the mfg of the product and say "We need 15 x # of stores of this item to sell for $xx on Black Friday, what kind of price will you give us?" When you are sending an order for 15x1900 of an item (bestbuy.com claims 1900 retail stores), I'm sure you can find a low enough price point with the mfg that you can still turn a profit.
super sekret prices? (Score:5, Insightful)
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!
Sales after Thanksgiving? (Score:3, Funny)
I will become a user of fatwallet (Score:4, Insightful)
The best tort reform (Score:4, Insightful)
There is. (Score:3, Insightful)
Hmm (Score:5, Interesting)
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.
Re:Hmm (Score:2)
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..)
Fight Back a Different Way (Score:3, Insightful)
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.
The part of the response that I LOVE (Score:2)
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.
Way to go, FatWallet! (Score:2)
Just sent (Score:3, Informative)
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)
Sounds to me like Wal-Mart is way overdue for a taste of their own medicine.
With apologies to The Village People... (Score:3, Funny)
D... M-C-A!
It's fun to sue with the
D... M-C-A!
Defense Fund? (Score:2, Interesting)
Disappointment (Score:4, Insightful)
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.
FW doing the right thing (Score:5, Interesting)
Walmart breaks DCMA everyday!! (Score:3, Interesting)
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.
Re:Finaly Somebody stands up to DMCA (Score:2, Funny)
I sort of thought you had to be moderated down.
But I agree. with the troll.
Lesson for retailers... (Score:2)
Re:Reason for the suit (Score:2)
Re:Reason for the suit (Score:2)