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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 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
www.bluealien.org
Prophets of the Blue Alien
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 Sage treasures Unity and measures all things by it" - Lao Tzu
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.
"A terrorist is someone who has a bomb but doesn't have an air force." -William Blum
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.
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.
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.
This comment is fully compliant with RFC 527.
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?
Full-Featured GPL Web Hosting Control Panel
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.
the pun is mightier than the sword
"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
There is a war going on for your mind.
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
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 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.
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.
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)
In our vending area, Coke raised the price of a bottle of X to $1.10. Within a day or so, the Pepsi machine had done the same. Is this price fixing? Maybe, but it's legal. Why?
They didn't talk to each other about it.
The guy that restocks the Coke machine upped the price. Next day, the Pepsi restock guy comes in, and notes the Coke machine price (as he's told to, no doubt). He notes the 10 cent increase, does the same to the Pepsi machine.
Sucks - yes. Illegal - no. If they'd gotten together and decided on the 10 cent increase, then it would have been collusion... which is illegal.
The smarter move for Pepsi would have been to stay at a dollar. No one would buy from the Coke machine, since it's a huge pain in the ass to carry a dime or break the second dollar.
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)
paintball
Even if they won't win, they might bleed fatwallet to death, that is a big concern.
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.
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...
IANAL, of course, but I'm sure WalMart sees prices not as "prices" but as notices of "strategic intent."
a dvantage-over-our-competitors -- is something that's not been discussed much.
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.
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.
I get my rebates.
But I'm not your average shopper, and most of the people who frequent boards like the one on fatwallet aren't your average shoppers either.
They're people who make copies of all their receipts and UPC codes, who file this stuff in shoe boxes by month and year, and follow up on everything. They're people who keep Price Books, so they know when and where the really good deals on things like boneless/skinless chicken breasts really are, and which store is advertising a B1G1F deal that really isn't a deal. They're people who combine coupons and rebates to actually get paid to buy a product. People who have spreadsheets tracking the cash price of a specific model of used car on ebaymotors and can tell you that auctions ending on certain days tend to end lower or that cars with red interiors tend to sell low.
But you're absolutely right. Most people don't do this. Most people don't think about filing those rebates until it's too late, or they don't follow the directions (some of which can be pretty exacting). They're not going to spend the time to follow up on a late rebate or check around to find the exact lowest price on something before they go to the store. They don't carry every single ad from the Sunday paper when they go shopping, so they can force a store to match a price on something because Store A has a lower price, but Store B has a rebate on the item.
These stores aren't losing money. The average shopper is more than making up for what I get for free. Their loss leaders are rarely a real loss to the company; they simply make less profit on those items. (It's a lot like government tax cuts. Really, they're just making the increase smaller.) And even "free after rebate" items will make money on those people who don't bother to file. That's what they count on, and the average shopper rarely lets them down, because they see filing rebates as "too much trouble", and the "sale" price before rebate wasn't too bad anyway.
I'm sure Walmart felt safe in targeting fatwallet and others in this way, because we really are on the fringe, but this sort of "information trading" has been around a lot longer than the DMCA, and using that particular law to stop people from saying "Lexmark printers are $30 this Friday" was just dumb, and that's without even getting into whether or not it applied to the situation. So they stopped fatwallet and a few other specific sites from hosting that information. Woohoo! Big deal.
It was posted to Usenet groups, and both public and private mailing lists.
Once information is in the hands of people out of your direct control, it's OUT. And there's no getting it back. DMCA or no DMCA.
At that point, you suck it up and take the high road because if you don't, you just look petty to the average shopper who'd never think to check fatwallet to begin with.
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.