Slashdot Mirror
FatWallet Strikes Back Using DMCA
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"
There is a giant chasm between joe sixpack (98% of the populace), us (1%) and "them". The world is populated by idiots who can tell you who is who in "Survivors" but can't point their own state on a map. Hoping that this will bring the issue to joe sixpack's attention is an exercise in futility.
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.
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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.
Intellectual Property doesn't really exist. It is just a catch all phrase that covers Copyrights, Patents, and Trademarks. You can only copyright a physical work. You can't copyright something that is in your head and you can't copyright single words. You can, however, write down your idea for an invention or process and patent it. You can also take a single word or symbol and register a trademark on that word or symbol as it relates to your line of business. I hope this clears things up for you.
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.
Pricewatch 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!
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
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.
"Communism is like having one [local] phone company " - Lenny Bruce
I thought it was a well-known fact by now that the DMCA is not just a US law anymore. Europe is jumping on the bandwagon and this is because of WTO mandates. All WTO countries *will* have to follow suit. Please do get prove me wrong if you can.
I miss my rubber keyboard.(Homepage)
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.
Sorry, but you have it all wrong. The retailers used the DMCA Safe Harbor provision to club FatWallet. It had nothing to do with "digital media". They claimed that their copyrighted material was posted, and under the Safe Harbor provision, FatWallet had to remove the material or face the legal liability. There was no claim of "digital media."
As for the parent post:
1. The retailers always release the ads on Thanksgiving for the Black Friday sales, so your argument is ridiculous. Plus, most of the retailers that invoked the DMCA released their ads early (Wal-Mart released their ads through the mail 2 days after invoking the DMCA).
2. The legal letters did not mention "digital media" as I stated above. In any case, the media that the ads were on is irrelevant.
3. Big assumption to think that the poster had an NDA. If he did, then he may get in a lot of trouble (and should). In any case, that is not FatWallet's problem (other than responding to the subpoena).
4. The DMCA applied because the lawyer said it did. That is why it is a horrible law. The "Safe Harbor" provision is a great way to club the little guy, becuase they are taking legal liability if they don't comply.
i am a member of FW, and the information that was posted was simply a long list of items + prices. there were no posted JPEGs or PDFs of the actual WalMart circular == just text.
E V E R Y T H I N G I W R I T E I S F A L S E
A collection of facts is copyrightable, but if you go through this collection and pick and choose data from it and post it in another form, you are not violating copyright. It would suck to be a dictionary company or someone looking up and posting a phone number out of the phone book if it were.
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.
Facts aren't copyrighted, just particular expressions of them.
If a newspaper article says "Six people were killed in a bus crash in I-70," you are free to report that fact yourself in your own words. You may also be free to copy small portions of it under fair use. If you copy so much that you're infringing the copyright, it doesn't make any difference whether you cite the source or not, it's still copyright infringement.
Where citing sources come into play is in establishing your own credibility. If you say "The bus crash yesterday killed six people," why would anyone believe you? But if you say, "The Chronicle reported that the bus crash killed six people," then the fact that you have a source gives people both a reason to think that you've got a basis for your information and a way to check it themselves. The newsreported probably cites sources for exactly that reason: "A spokesman for the coroner's office said...."
Citing sources can also help a little bit in terms of liability. If you say, "The Gazette had a story saying Acme Petstore was torturing puppies," you may be slightly safer against claims that you're libling or slandering the business. That protection is limited though.
Giving credit and citing things has nothing to do with copyright; it's simply a matter of telling your readers where to verify your information, and/or adding credibility to your statement. If you quote material without attribution, that's plagarism, which may or may not also be copyright infringement.