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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"
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.
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.i d=20021202.112004&time=11%2043%20PST&year=2002&pub lic=1 at ascribe.org.
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
"If I wanted your input on my pet project, I'd stick my hand up your ass and use you like a sock-puppet." - Muse
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.
sig not found
Depends on who is using it.
How funny is that?
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!
I will become a user of fatwallet. I will support thier advertisers. Any company that has the balls to do this deserves my support.
Software Wars
Make filing frivolous lawsuits a criminal offense for the attorney and plaintiff.
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.
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 near you.
The truth is usually just an excuse for lack of imagination.
It's called barratry.
Note to M1-ers: a curt but otherwise insightful message is not "Flamebait" or "Troll".
But there is no way any of those stores could reasonably claim copyright. That means their letters under the DMCA subject them to fees under the DMCA and possible purjury and ethics charges for their lawyers.
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.
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.
I almost forgot to include the obligatory DMCA comment. The DMCA bites.
Sure I've heard of loss leaders. I don't really care what stores are paying for goods vs what they are selling them for. That's not MY CONCERN as a consumer.
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.
E V E R Y T H I N G I W R I T E I S F A L S E
"Prices" are not a digital medium. If the prices came in some PDF file and he then decrypted it and posted a cracked version, THAT would be a DMCA case. Him hearing someone (say, an employee) telling him that "Item X will be on sale Friday for $20" and then sharing that information is not a DMCA violation - neither is him reading it in some kind of uber-leet digital protected system. Parent comment was probably written by a Wal*mart lawyer. ;)
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, 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.
But that's my point. Everybody is griping about the "prices" but the prices -- I suspect -- aren't the issue.
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.)
The chasm between "illegal" and "wish it was illegal" is a big gulf.
Walmart may wish it was illegal for someone to say something bad about them.
But that doesn't make it illegal.
Walmart may wish that any behavior by consumers that undermines their business strategy should be illegal and actionable. But that doesn't make it so.
Walmart may even wish they control every piece of information about their business under threat of jail. But so what.
Walmart isn't *entitle* to sue someone just because they feel it affected their profits. You're thinking like a consumer instead of a citizen.
You have *more* rights than a mere corporation. Don't you ever forget that.
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
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.
utter rubbish
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!
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.
No, no, no. This is not a sig.