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"

Comments

Take a stand

[SteakJerky.com]

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

[nathanm]

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.

Re:Take a stand

[Lt Razak]

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 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

[Apathy costs bills]

Have you noticed that they pick their targets? Slashdot posted the Black Friday list too 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.

Re:Take a stand

[Sloppy]

Copyrighting prices is the dumbest thing I've ever heard.

But without copyright, what incentive does Wal-Mart have to .. uh .. have prices?

Re:Take a stand

[Fastolfe]

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.

Re:Take a stand

[smoondog]

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

[Fastolfe]

revealing trade secrets is illegal or at least against contract

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

[ninewands]

Quoth the poster:

A collection of facts is copyrightable ...

Not in the United States (see the earlier poster's remarks about the telephone directory cases).

It would suck to be a dictionary company ...

A dictionary is not a collection of facts. It (if prepared properly) is a work of MAJOR scolarly research in language, linguistic, epistemology and sociology, which is wht the new edition of the OED may NEVER be finished.

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.

Trade secret maybe ... copyrightable, NEVER. Prices (actual or proposed) are facts (real or potential facts, that is) and therefore they are not amenable to copyright protection. Which just goes to show you. If you are trying to surprise your competitors with a sale featuring wild deeply discounted pricing, you'd better have an in-house print shop to make at least the printing plates for your advertising flyers because a secret known by more than one person is no longer secret.

Re:Take a stand

[wkitchen]

Slashdot frequently needs a devil's advocate.

Must be that there are so many angels here.

whoohooo! go FatWallet

[digitalmuse]

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 at ascribe.org.

Re:whoohooo! go FatWallet

[Melantha_Bacchae]

digitalmuse wrote:

> 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.

The tide is turning: Joe Sixpack is begining to notice that his freedoms are missing.

On CNN's Talk Back show yesterday, they discussed the anti-Ashcroft ads that the ACLU were running. All four panel members agreed that the ads (showing Ashcroft editing the bill of rights by cutting out and scratching off large sections) were accurate. Phone calls and emails from the viewers indicated that Joe Sixpack also agreed with the accuracy of the ads, and was not a happy camper. It was also pointed out that the ACLU's membership had grown since 911, swelled by people worried about the errosion of their rights. The ACLU's membership now includes well known conservative congresscritters. The Bill of Rights is once more politically correct. ;)

This is definitely a case to take to Joe Sixpack's favorite news media. Joe Sixpack can certainly relate to "clip a coupon, tell your online coupon club about it, get hit by Walmart's lawyers". I'd also tell Joe Sixpack which of his congresscritters voted for this dumb law, so he will know who not to vote for in 2004.

Muteki no you, muteki no heiwa, muteki no Mosura!
(Invincible Sun, Invincible Peace, Invincible Mothra!)

Re:whoohooo! go FatWallet

[operagost]

The Bill of Rights is once more politically correct. ;)

Except for 2 and 9, of course. And 1, if your opinions are themselves not politicially correct.

It has nothing to do with natural rights, but about agendas.

Re:whoohooo! go FatWallet

[AndyChrist]

price vs. cost. Some people just can't understand the difference.

(dons flameproof suit) Sounds like the makings of a microsoft slogan. (erroneous or no)

Re:Finaly Somebody stands up to DMCA

[paganizer]

I didn't realize that it was possible to post at -1, troll.
I sort of thought you had to be moderated down.

But I agree. with the troll.

Corporate Fuzzy Logic

[mat catastrophe]

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

[UCRowerG]

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.

Re:Corporate Fuzzy Logic

[Mr Guy]

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.

Re:Corporate Fuzzy Logic

[SteakJerky.com]

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.

Re:Corporate Fuzzy Logic

[jgerman]

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.

Re:Corporate Fuzzy Logic

[suman28]

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?

Re:Corporate Fuzzy Logic

[mat catastrophe]

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

[BigBir3d]

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.

Re:Corporate Fuzzy Logic

[DarkVein]

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

[mcmonkey]

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.

Re:Corporate Fuzzy Logic

[AtariDatacenter]

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.

Re:Corporate Fuzzy Logic

[Fastolfe]

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.

Re:Corporate Fuzzy Logic

[gidds]

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.

Re:Corporate Fuzzy Logic

[Drakin]

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...

Re:Corporate Fuzzy Logic

[Reziac]

Different loss-leaders, to suck a different audience into the store, where they will hopefully buy a lot more other stuff besides Coke or Pepsi.

Re:Corporate Fuzzy Logic

[jdreed1024]

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.

Re:Corporate Fuzzy Logic

[El Cubano]

What I fail to understand is this:

If someone within the government or the military goes to the press and leaks a CLASSIFIED report which is then published, the press is fulfilling its civic duty to keep the people informed. Now, leaks of this nature are covered under the US code (18 USC 793, 798 and probably a few others) governing classified information. Does the government threaten legal action against the newspaper or magazine that publishes the info? No! They are protected by freedom of the press. The government's only recourse is to prosecute the military member or government employee that was the source of the leak.

Similarly, in the corporate world, if some leaks confidential company information to the press, publication of that information does not make the newspaper or magazine legally liable. Again, the publisher is fulfilling a civic duty to inform the public. If a newspaper published a report stating that an automaker refused to intiate a recall even after it baame apparent that a recall was warranted, the comapny's only recourse is to find out who the offending employee was and deal with that person (or possibly to accuse the publisher of libel, which is quite serious). Again, there is no talk of taking legal action against the publisher for publishing true information.

So, why then, do retailers insist on attacking these websites for publishing information that was scheduled for release anyway? The real problem is that someone in the retail organisation "leaked" the info. This could have happened by an employee directly providing the information to an outside organisation, or by the failure of the retailer's IT/Security department to propoerly protect the information and the associated computer systems which housed the information.

The retailers must deal with the problem at the internal source rather than attacking a third party for providing a public service that would otherwise be protected by the US Constitution, were it not for the strong arm tactics of Coprorate America. This sort of self-serving special interest maneuvering should be completely unacceptable to the general public.

--El Cubano

Re:Corporate Fuzzy Logic

[kcbrown]

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.

No, it's almost certainly collusion. It almost has to be.

Because for you to claim otherwise means that the stores in question have to have essentially identical operating costs. That's highly unlikely: the stores have different management, different suppliers, pay differing amounts of rent, etc. Some of these things will cancel each other out, but not so much that the stores will somehow independently offer the exact same products for the exact same prices.

No, Occam's Razor says "collusion" here.

Re:Corporate Fuzzy Logic

[MacGabhain]

There are two factors (other than collusion) that could account for that phenomenon (which I've seen as well, both from the inside and the outside).
First: There are certain products that make sense to advertise because of their drawing power that pretty much every store in the same category is going to use. These are the ones that have nice numbers about them, but are cheap. So, if you've got a particular 17" monitor you can sell for $79.99, you advertise that. This gets people into the store. If they want that monitor, they can, of course, buy it, but you're often hoping that they'll change their mind when they see better options and get something with a better margin. (It's only bait and switch if you don't have the product you advertise.)
Second: Because consumer electronics giants are dumbshits when it comes to pricing (they'd drive themselves out of business by eliminating all margin if they could), the manufactorers place limits on what how cheaply you can advertise their products, in order to make sure their product doesn't become a money-loser and loose support of the store. (Happened to HP ink jets when I worked at CompUSA years ago. Due to Best Buy's use of them as a draw, margins were around $2.50 on them, as opposed to $30 on a Canon. Our store couldn't get HP inkjets in quantity for months.) This is called the Minimum Advertised Price, or MAP. It's semi-legal, since it's an agreement between the store and the manufactorer, not between stores, and because it doesn't prevent you from selling below the price -- only from advertising below the price. So when BB or Circuit City or whomever has that Deskjet 635 on sale for $49.95, they all end up with the same price because they're all discounting it to the MAP.

Re:Corporate Fuzzy Logic

[mindstrm]

Umm.. they may be right in that the DMCA is not the tool to be used here...

But they are NOT right in publishing stolen, unpublished trade secret information.

This is not a matter of simply reproducing advertised prices, this is stolen FUTURE pricing strategy... not advertised prices.

Re:Corporate Fuzzy Logic

[BigBir3d]

Actually, when dealing with management a few things are certain:

1) Your manager worked somewhere else.
2) That somewhere else is probably in the same market.
3) How many supplier's of KDS monitors, or Sony drives, or whatever, do you think there are?
4) Difference in costs are close to nil. Things cost what they do, regardless of who you are.

Trust me, I was a manager of a retail furniture store for over a year, at a company that I worked at for over 3-1/2 years. Everyone knows what is going on everywhere else. Even the suppliers would tell us what was going on with regional competitors!

There is no loyalty anymore. People talk.

Re:Corporate Fuzzy Logic

[mpe]

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.

Re:Corporate Fuzzy Logic

[mpe]

But they are NOT right in publishing stolen, unpublished trade secret information.

If the information was in actual fact unpublished then it must have been leaked by store employees.

Re:Corporate Fuzzy Logic

[mpe]

Similarly, in the corporate world, if some leaks confidential company information to the press, publication of that information does not make the newspaper or magazine legally liable. Again, the publisher is fulfilling a civic duty to inform the public. If a newspaper published a report stating that an automaker refused to intiate a recall even after it baame apparent that a recall was warranted, the comapny's only recourse is to find out who the offending employee was and deal with that person (or possibly to accuse the publisher of libel, which is quite serious). Again, there is no talk of taking legal action against the publisher for publishing true information.

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.

Re:Corporate Fuzzy Logic

[mindstrm]

It *WAS*, in fact, unpublished.. do you actually think they'd care if people were putting their current pricing online? Gimme a break.

It was strategic pricing information NOT AVAILABLE to the PUBLIC or COMPETITORS. That future pricing was secret.

It could have been leaked by store employees, by printing houses, by the newspaper publishers who store the flyers for publishing in a week, etcetera... but all of these are thigns that are confidential until publication.

Re:Corporate Fuzzy Logic

[mpe]

It was strategic pricing information NOT AVAILABLE to the PUBLIC or COMPETITORS. That future pricing was secret.

It self evidently wasn't secret, because FatWallet got hold of it. No doubt their competitors could get hold of the information even more easily, but they wouldn't tell anyone.

Re:Corporate Fuzzy Logic

[mindstrm]

Oh.. so if someone gets ahold of something secret, it obviously wasn't secret?

That's an intresting theory. I think you should become a lawyer.

I can see it now.. someone will break into a series of vaults, then publish the formula for Coca-Cola.

The defence will be "Well, if someone got ahold of it, it obviously wasn't secret, was it?"

DMCA good or bad?

[Anonymous Coward]

Depends on who is using it.

How funny is that?

Re:DMCA good or bad?

[Corporate Drone]

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...

Re:DMCA good or bad?

[Sabalon]

FatWallet is not really using the DMCA - they are standing up saying that wal-marts claims of a violation are bullshit.

Re:DMCA good or bad?

[Tsali]

"The screw can be turned both ways, so screw them today!"

Something my dad always said to me... it's one of those guiding principles you just never forget...

Re:DMCA good or bad?

[psxndc]

I disagree. The bludgeon itself is not evil or nasty, merely the person that wields it. It may have been created with nasty or evil intentions, but the bludgeon itself is neutral. It's cliche, but it's like "Guns don't kill people, people kill people". Guns themselves are not evil, but their users can be.

psxndc

Re:DMCA good or bad?

[psxndc]

Sorry, forgot to tie it back to the original context: The DMCA itself is not all that bad. The problem is that it is broad enough that a lawyer can bring someone into court over it even if the person really did fall within their legal rights. Most people cannot or will not afford the legal fees necessary for defending themselves and thus the DMCA is used as a weapon to inspire fear. Realistically all the the encryption research speakers that are afraid to come to the US shouldn't be because good faith encryption research is clearly protected by the DMCA. It's the kid and his friends that decode DVDs that is the grey area because the kids aren't established cryptologists. Both however could still be brought into court and regardless if they would eventually win or not, most people can't afford to take it that far.

The problem with the DMCA lies in how it is being used by corporations with extremely deep pockets and it boils down to a battle of checkbooks. Joe Sixpack can't compete.

psxndc

wal-mart killing the dmca?

[Oo.et.oO]

maybe wal-mart is _trying_ to kill the DMCA?
>:-D

I dont understand

[night_flyer]

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

Re:I dont understand

[ibennetch]

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.

Re:I dont understand

[cioxx]

That explains it. Maybe this is why hax0rz talk the way they do.

They are trying to avoid copyright infringement.

Re:I dont understand

[pommiekiwifruit]

That sounds more like a trademark than copyright. Remember that you can even trademark a single colour (for use in your line of business).

Re:I dont understand

[RazzleFrog]

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.

Re:I dont understand

[schon]

Copyright on an idea is called a patent

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.

DIE, DIE DIE! ...oh please, why wont you just die?

[Shadukar]

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! ;)

Defense fund?

[BlueAlien.Org]

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

Re:Defense fund?

[LostCluster]

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...

Re:Defense fund?

[joostje]

I would like to contribute to a defense fund of sorts for FatWallet

You would have been able to, but aparently somebody copyrighted the excact amount of money to send to the fund, so no nobody can tell you how much to send.

I know who posted the Wal-Mart info

[jmcwork]

It was that little 'Smiley' guy that is always cutting the prices. He was ticked off about being overworked and underpaid.

Re:I know who posted the Wal-Mart info

[bgarcia]

It was that little 'Smiley' guy that is always cutting the prices.

Actually, he's more of a maniacally-laughing face

Copyright

[joelwest]

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...

The DMCA - Rorsach Blot of Law

[Badgerman]

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.

Re:The DMCA - Rorsach Blot of Law

[LostCluster]

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.

I said it before and I'll say it again

[nochops]

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.

Re:I said it before and I'll say it again

[FleshMuppet]

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?

[sterno]

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.

Re:Copyrighting their circular?

[sterno]

Well, the circular could be argued to contain creative content. I mean they put pictures and descrptions in there, and there's a substantial effor to market the items to you in the circular. A receipt is factual numbers. The prices are factual numbers. The thin line Walmart's trying to walk is that numbers extracted from a creative work still maintain the copyrighted status of the creative work.

Could someone clarify this?

[s4m7]

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?

[Jaeger-]

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.

The plan here...

[241comp]

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?

Re:The plan here...

[gallen1234]

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.

Re:The plan here...

[thomas.galvin]

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.

I hope the USA gets into loads of trouble

[Basje]

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.

Re:I hope the USA gets into loads of trouble

[EricWright]

That's the only way the politicians here in Europa will have their eyes opened before we have similar laws.

How many politicians are there on the various Jovian moons? ;-)

Re:I hope the USA gets into loads of trouble

[olethrosdc]

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.

Re:I hope the USA gets into loads of trouble

[gvonk]

How many politicians are there on the various Jovian moons? ;-)

Not enough.

Re:I hope the USA gets into loads of trouble

[silverhalide]

That's the thing about Europe... they always wait for us to screw it up so they can get it right second time around (cell phones, cars, video standards, laws!). Just wait until you rascals scrape together your dumbed-down mincy fa DMCA law, because our american-badass DMCA law will come over there and kick its ass for copying us! Who's laughing NOW Eurpoe?!

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!

Re:I hope the USA gets into loads of trouble

[pommiekiwifruit]

Judging from this web site, quite a few.

Let protect these much abused retailers

[yuri]

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

[Jaysyn]

"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

The whole point of Black Friday...

[MarvinIsANerd]

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

Re:The whole point of Black Friday...

[ewanrg]

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.

Re:The whole point of Black Friday...

[teamhasnoi]

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.

Re:The whole point of Black Friday...

[Enfors]

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.

Re:The whole point of Black Friday...

[Jaeger-]

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.

Re:The whole point of Black Friday...

[stilwebm]

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.

Re:The whole point of Black Friday...

[Sabalon]

1) In the Thursday (thanksgiving) paper, this stuff was printed. I could simply know what was on sale before entering the store, just get what I wanted and get out. Does it really make a difference if I had the data a week before that? (Well...as I stayed home friday it's a moot point :)

2) Proof? Say I worked at the Post and saw the info come in on the digital media, pulled it up on my screen to make sure it was valid/not-corrupt. At that point, I or others could have printed it out, handwritten the prices down, etc... with no media ever being stolen.

3) I'll agree with that - the person did something they shouldn't have - but it has nothing to do with copyright (they did not post the ads as sent on the digital media) Basically, wal-mart has no idea how to figure out who leaked the info, so they are using the ridiculous power of the DMCA to drag it out, even though it shoudln't apply.

4) amen brother....though you still assume that something naughty went on with the media. NDA issues - probably, theft of digital media - doubtful.

Re:The whole point of Black Friday...

[Hatter]

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.

Re:The whole point of Black Friday...

[fishbowl]

"Does it really make a difference if I had the data a week before that?"

For you, the consumer, probably not.

If you were a merchant, it might be a huge deal.

Re:The whole point of Black Friday...

[Jafafa Hots]

Exactly. I also worked for a paper, and here is where the most likely place for a person to get advance prices was in OUR operation - the people involved in stuffing the inserts INTO the paper!

We would get the pallets of inserts a week in advance, sometimes two. And let me tell you, the people making minimum wage who did the crappy jobs around the place certainly didn't sign any NDA, and they all had access to copies of the circulars.

Re:The whole point of Black Friday...

[kcbrown]

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.

And you know what I say to this? If the employees in question are overworked and disgruntled, then their employers got exactly what they deserved here.

Listen up, you people who run these large corporations: You and your employees are one. You may think you have a responsibility only to your shareholders, but you'd be wrong if you believe that. You also have a responsibility to your employees. They work for you, and just like you have certain needs that must be met, your employees also have certain needs that must be met. You are just as responsible for the well-being of your employees as they are for the well-being of your company. Your employees are the company. The better off they are, the better off you are. Overworking and underpaying your employees is like working your body too hard and not feeding it enough. Your body will eventually collapse and, if you push it, die. Just like your company.

Re:The whole point of Black Friday...

[raresilk]

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.

super sekret prices?

[geoff lane]

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!

Re:super sekret prices?

[anonymous loser]

Everyone they distribute the price information to beforehand is under a Non-Disclosure Agreement. By leaking the price information beforehand, that party (e.g. the newspaper) is liable for damages. Considering it's Walmart, and that they made over a billion dollars in sales over that weekend, the damages are likely to be quite large. It's my guess that Walmart is merely trying to get FatWallet to disclose what they know about who leaked the information, so that they can turn around and sue the appropriate party for damages. God knows FatWallet doesn't have any money.

Sales after Thanksgiving?

[twocents]

I'm glad I saw this blurb, otherwise I would have never known there were sales after Thanksgiving.

I will become a user of fatwallet

[mshiltonj]

I will become a user of fatwallet. I will support thier advertisers. Any company that has the balls to do this deserves my support.

The best tort reform

[browser_war_pow]

Make filing frivolous lawsuits a criminal offense for the attorney and plaintiff.

RTFM

[stomv]

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

From this linky dinky,:

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.

You can't copyright mere facts

[Quila]

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.

Re:You can't copyright mere facts

[Fastolfe]

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...

Re:You can't copyright mere facts

[Fastolfe]

Copyright only protects an an original expression, not an unoriginal alphabetized list of phone numbers.

Firstly, I'm not trying to take WalMart's side, I'm just trying to explain how they might have a case.

Secondly, I totally agree that raw facts are uncopyrightable (as phone numbers are). Keep in mind that collections of facts (like a phone book) are copyrightable.

Lastly, unpublished prices not in use are merely words and phrases as part of a greater work. No, that work is not "literary" in the traditional sense and probably has no value as such, but it's still a work of text that describes the company's intents, and is not simply text that relays pricing information, and that does have value. It's confidential material--confidential text. Grabbing the juicy bits out of that text, assuming that text can be copyrighted, is infringement, and it shouldn't matter if that text consists of a series of numbers or a line of prose.

And before someone says, "So let's copyright $9.99 and get rich off the royalties," you're going to have to prove a) that someone else's use of "$9.99" is derived exclusively from your copyrighted work; and b) that their use is indeed infringing and not fair use. These are just the arguments the retail chains are going to have to deal with.

Personally, I can see valid arguments on both sides, but most of the rest of Slashdot seems to be missing that other side.

Why would all of these retail chains be making the same copyright claim if there wasn't some merit to their argument? Really, that's for a court to decide, but don't be so quick to dismiss it based on your interpretation of copyright law.

And if I'm reading things correctly, I think the copyright claim stems not from the fact that they merely reposted prices, but that they reposted the full text of their advertisements. If that's correct, then all of this discussion about whether "$9.99" is copyrightable is moot, since it's really the greater work that they're claiming has been infringed. Someone going through a copyrighted book and saying, "this author used the following words in this work: ..." is a perfect counter-example to my statements above, so this scenario seems like it makes the most sense.

Re:You can't copyright mere facts

[arkanes]

A number of other posters, claiming to have seen them first hand, say that it was in fact NOT an actual circular, but a big list of items and prices. This invalidates pretty much any claim WalMart has to copyright infringment. I think all these retail chains are making the same argument for the same reason that companies and organizations have always made tenuous legal claims - because it sounds impressive and dangerous and people won't fight back.

Hmm

[teamhasnoi]

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

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.

Re:Hmm

[Corporate Drone]

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..)

Fight Back a Different Way

[icewalker]

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.

Re:Fight Back a Different Way

[/dev/trash]

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!

Hell, our Wal-mart, was built on Old Route 6, which became Old becomes teh new Route 6 needed to be 4 lanes, etc. Well now that Wal-mart is here and brought along alot of other retail, Old Route 6 needs to be expanded. To 5 lanes. So 20 years ago, a new road needed built, but now the old can be retrofit? Of course when Wal-mart pulls out and build somewhere else, that 5 lane road to nowhere will be really nice to uh, cruise on.

but the DMCA is great for Hollywood and Lawyers!!!

[JohnDenver]

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.

The part of the response that I LOVE

[Quila]

"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.

Way to go, FatWallet!

[Junior J. Junior III]

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.

There is.

[Dthoma]

It's called barratry.

Just sent

[Smallpond]

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

[r_j_prahad]

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.

Re:Unbelievable

[ChaosDiscord]

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.

Spies? Do they hide their UPC scanners and laptops under thier tan trenchcoats and fedoras? Do they send the stolen information to their superiors through microdots hidden in public places?

By running a business open to the general public, you are implicitly allowing anyone who wants to come in and look at your prices (there are a number of court cases protecting this right). You can personally use this to comparision shop at a few stores, a newspaper might post a study of prices across the city, a public interest group might look for price discrimination across a chain, and a competitor might try to keep his prices in line. Competition requires that competitors know the prices each other is charging so they can lower their prices to match, otherwise you're just pricing randomly.

Undercutting by one cent? Hah. I'm sure lots of people are looking at Wal-Mart's price in their advertisements and comparing it to be price their competitor charges but doesn't advertise (after all, if they advertised, Wal-Mart wouldn't need to send 007 into their store to get the information). Then, having spent the time comparing the prices decided, "Wow, I'll save a whole penny! Heck, if I save a penny on each item during my shopping trip, I'll have enough extra money to buy a gumball from the machine out front! I'm going to Wal-Mart instead!" I somehow doubt it. I'm completely willing to believe that Wal-Mart uses predatory pricy tactics including selling below cost to destroy competitors. But a lousy penny? I think not.

There are many good reasons to loathe Wal-Mart, but don't complain that they are being good free marketers and collecting information about competitors. Instead complain that they sell products at a loss to drive out competitors, then raise their prices. Complain that Wal-Mart uses their dominant market share to demand specially modified versions of video games to reduce levels of violence unacceptable to their management. Complain that Wal-Marts willingly allow their property (and by extension the properties around them) to become littered messes.

Re:Unbelievable

[Reziac]

I have news for you. There is a whole subsegment of the retail industry devoted to checking one another's prices (grocery and department stores have been doing it for decades). There are subcontractors who do nothing else. I vaguely recall that many years ago there was a lawsuit when some store tried to keep the price-checkers out, but the upshot was that they couldn't prevent people from coming in solely to examine the shelf prices.

Re:Use google news

[octalgirl]

Don't forget the Google News - just search for FatWallet or DMCA- there's a lot out there now and it's (finally) not just coming from tech mags.

With apologies to The Village People...

[maiden_taiwan]

[All together now...]

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

Defense Fund?

[UpLateDrinkingCoffee]

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)

They can try the trade secret route

[Quila]

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.

DMCA is... uh-oh... fine.

[raehl]

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)

Re:DMCA is... uh-oh... fine.

[Dun Malg]

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

This one aspect of the DMCA may be properly balanced, but there are a lot of other parts that are bad. The anti-circumvention portions (for example) are clearly an end-run around the fair-use issue. "Sure, you can fair-use all you want, you're just not allowed open the box to actually USE the content" sounds pretty evil to me.

Disappointment

[fobbman]

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.

Re:Disappointment

[mliu]

I disagree. With the sort of deals you find posted on FatWallet, and with the sort of hotdealers you find posting on FatWallet, when we do return to those retailers, you can bet they're not making any profit off of us. I don't take the stand that I'm not going to shop at the store anymore, I take the stand that I'm not going to let the retailer make any more money off of me. A subtle but important distinction.

Will I be in Best Buy again, getting my $400 free dollars courtesy of Bill Gates and Best Buy if the deal came back? You bet I would.

FatWallet is making killing too...

[nortcele]

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.

FW doing the right thing

[kagejishin]

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.

Re:Europa

[VikingBerserker]

Cool, I didn't realize we had a colony there...

We don't. Remember 2010?

All these worlds are yours

Except Europa

Attempt no landings there

Use them together

Use them in peace

No surprise -- it's all strategy

[Didion Sprague]

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.

Re:No surprise -- it's all strategy

[Fnkmaster]

A strategy can be protected as a trade secret, maybe, since trade secrets can be pretty much anything a company keeps secret and uses to plan or conduct business. However, copyright law is there to protect authors and artists. A "strategy" is not copyrightable by design. A strategy _document_ is protected by copyright, but a single fact from a document is not protected by copyright. Period.

Re:No surprise -- it's all strategy

[Didion Sprague]

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.)

Re:No surprise -- it's all strategy

[dissy]

> But that's my point. Everybody is griping
> about the "prices" but the prices --
> I suspect -- aren't the issue.

We are griping over the non issue prices because walmart is suing with the non issue DMCA :)

Re:No surprise -- it's all strategy

[Didion Sprague]

The question I have -- and it's not one that I can find an answer to -- is this: did WalMart indeed "spam the world" with their Black Friday prices before Black Friday?

Or did -- as I suspect -- WalMart make an effort to keep their information private but found that the information was nonetheless made public?

It's easy to dump on the corporations -- and, in general, I'm no fan of corporations -- but I'm reading a lot of "WalMart bad, DMCA bad, therefore FatWallet good" type responses, but I'm not sure that's the case here.

A collection of prices could be seen as a "creative expression" in much the same way a battle plan is a carefully designed, very creative strategic document. In fact, I'd wager that most battle plans are very *creative* -- and it's the idea of "creativity" that oftentimes makes the difference between a plan that succeeds and one that fails. (In 1991, for example, the idea of outflanking the Iraqis in the desert -- swinging wide to one side and then doubling back to squeeze their cowardly asses -- was an amazingly creative, perhaps even daring maneuver. It worked, worked well, but had it failed, it would most certainly have failed "big time".)

Now, I'll agree that the DMCA has turned into a weird "catch-all" for anything that corporations don't like. This isn't a good thing. And I'm not sure WalMart should have embarked on this particular battle. I suspect they might -- might -- be guilty of not picking and choosing their battles carefully. Clearly, they think this is a worthwhile battle, but it would seem to me (Joe Consumer) that this is a battle that could backfire miserably. It certainly doesn't make me want to go to WalMart and spend my money and add to their 1.43 billion dollar "take" on Black Friday.

I suspect WalMart didn't take adequate precautions to protect their senstive data. Ditto for Staples and Best Buy. If retailing can, in fact, be likened to modern warfare, then the retailers have to rethink their planning and execution. If some geek can simply swipe the so-called "battle plans" from a mid-level manager's desk (or website) then better precautions need to be taken.

In fact, if I were a lawyer, I'd probably chide WalMart for not taking adequate precautions to match the sensitivity of the information. If this shit is super-secret, then WalMart should make sure their security is super-tight. Obviously, that can't guarantee the data won't fall into the wrong hands, but it'll most likely keep the 14 year old interns with bad zits from socially-engingeering high-level intelligence.

Or, failing that, at least keep the 14 years olds who think that FatWallet or Anandtech's 'Hot Deal Forums' is the 'crackerjack cool mondo spot on the web for trading retailing information' on their toes. (I read a post on Anand's forum the other day about a guy fired from Circuit City for pilfering price info and then posting it. What's odd isn't that Circuit City fired him but that these 16 year olds think that their "posting rep" on a forum is worth getting fired for.)

Re:No surprise -- it's all strategy

[Fnkmaster]

And I respect a company's right to protect their strategy INCLUDING their pricing strategy. And they have the right to fire somebody who has leaked a trade secret, or sue them. Or if another firm is under NDA and they leak it, again, it's grounds for a lawsuit. However, once a trade secret is leaked, you can't suppress it using the DMCA or any other law. The person repeating a rumor or piece of information is by no means breaking any law - they are under no contract, and there is no fundamental protection for the piece of information itself. Suggesting otherwise is ridiculous, and trying to hide underneath copyright law, which was created to protect original works of art and writing is patently absurd.

Re:No surprise -- it's all strategy

[Didion Sprague]

So what's the real gripe here, then?

That WalMart is pursuing litigation?

Or that WalMart is pursuing litigation under the DMCA?

And was the pricing information private, pilfered, and made public?

Or was the pricing already public?

Re:No surprise -- it's all strategy

[Lonath]

Wal Mart is pursuing litigation under the DMCA for copyright violations when there were none. There may have been trade secrets violations, but those aren't the same as copyright violations. The thing FatWallet is objecting to is the part of the DMCA that (AFAIK) lets you issue subpoenas asking for the identity of people BEFORE you actually sue them. They're trying to work around the requirement that they start a legal proceeding before they go out and violate someone's privacy. If they wanted to do this correctly, they should sue FatWallet claiming that they revealed trade secrets, then FatWallet could point out that the posts were made by person X from IP Y and let WalMart track it backwards to find out the poster's name.

Re:No surprise -- it's all strategy

[ninewands]

One more time, with FEELING ...

Quoth the poster:

A collection of prices could be seen as a "creative expression" in much the same way a battle plan is a carefully designed, very creative strategic document.<SNIP the poster's drivel referring to Dessert Storm>

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 ... this is a GOOD THING."

The quotes from Megan Gray and Deirdre Mulligan state the true matter of the case.

Re:No surprise -- it's all strategy

[stinky wizzleteats]

...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.

Defense Fund = Publicity

[JohnDenver]

Feel free to give whatever money you want to Fat Wallet, but I personally think the reason they are going through with this is twofold.

1. Walmart is threatening thier business
2. Fighting Walmart will generate A LOT of publicity

I never heard of them before, but you can bet I'm going to check them out now.

Seriously, The press loves David and Goliath stories like these, and I'm sure it will be picked up beyond Slashdot.

I hope FatWallet milks this situation for what it's worth.

DMCA good *and* bad

[JaredOfEuropa]

Well, I suppose I do not have to educate anyone here on the bad parts of the DMCA. But from the article I read: "They are accusing the stores frivolous copyright assertions and demanding payment under Section 512(f) of the DMCA".

Seems to me that a law designed to stop people from frivolous copyright assertions is a Good Thing (tm). They need to extend this law to cover frivolous patent assertions as well while they are at it. We've had enough stories here on /. about companies who brazenly proclaim IP to be their core business, and file copyright/patent infringement suits against smallish firms with cash but little legal clout or stamina, hoping for an out-of-court settlement.

Hmmmm....

[cdrudge]

According to Megan E. Gray, "As the retailers well know, simple sales prices are not protected by copyright. Copyright only covers the expression of ideas, not facts.

Are facts not copyrighted everyday? Look at research papers, news articles, biographies, anything that is published or presented. Most everything is copyrighted these days. I can refer to the facts in my my own works, but I need to give credit to the source of information unless it is public knowledge. Remember citing things in papers in the 6th grade onward.....?

Re:Hmmmm....

[pbrewer]

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.

Re:Hmmmm....

[danb35]

Are facts not copyrighted everyday?

No, they are not. As Ms. Gray said, the expression of the idea (or fact) can be protected, but not the fact itself. So, the fact that John F. Kennedy died on 11/22/1963 can't be protected, but my biography of him which states that fact can be (if I'd written one). Similarly, the research report can be copyrighted, but the facts contained in it (like survey results) can't.

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.

Points

[mmol_6453]

No kidding, since it isn't possible to copyright factual information.

But is it really factual information? The prices weren't in effect yet, and have always been subject to change.

There's a line that has to be drawn: How specific must a fact be? Must it be something as specific as a mathematical definition of a law in physics? Or is something with a very general definition also eligible? (Like an emotion, or the difference between sharp and dull.)

On the other hand, can it really be copyrightable if it is not intended to be viewed by the public? Anyone have reasons why/not?

Re:Points

[nathanm]

But is it really factual information? The prices weren't in effect yet, and have always been subject to change.

I guess it depends how they got the prices.

If they're from a disgruntled employee who leaked them early, the employee could be held liable for divulging trade secrets or something similar.

If the prices were in a flyer sent out by WalMart, they don't have a leg to stand on.

It's a good thing I read the law.

[raehl]

A DMCA-compliant notice is made under penalty of perjury - by sending one, you're taking an oath to the fact that your claim is true.

So yes, if you use the DMCA and you're BSing, you're committing perjury. It's an oath on paper.

Walmart breaks DCMA everyday!!

[Anonymous Coward]

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.

2 reasons.

[dnoyeb]

2 reasons.

1. when you ask the lawyers they will always suggest you sue. Its what they do.

2. The eggs are cheap but the milk is sky high! This kind of breaks their ability to get you in because of the cheap price of X and they try to sell you lots of Y. Because you now know clearly that Y is cheaper at the other store. (stupid in this internet era)

Then argue TRADE SECRET, NOT DMCA

[mekkab]

I think this has been said a thousand times...
DMCA is not the way to go about this. It can easily be argued that sale prices are a trade secret. But if Walmart's representation is using the DMCA as their banner, then I welcome the attempt. But I don't think they have a leg to stand on. Infact, I think after this loss, walmart should be seeking out new legal representation!!

Re:Desperately reaching...

[Hector73]

If I came onto /. and wrote,

"Hey guys, CompUSA is having a great sale on routers and hard drives. Over 50% off some items"

does that mean that I'm guilty of violating the DMCA?


No, but it would get you flamed by the /. readership.

Re:Broken NDA....

[GiMP]

this is about information that was publically available via their advertisments (available through the store or via newspaper)

Suprising absencses...

[xchino]

I'm suprides to see FatWallet not being represented by the ACLU or EFF, this kind of thing seem right up their alley. It's not just FatWallet.com and members that were told to shut the hell up or pay dearly by big corporations, they told EVERYONE to shut the hell up or pay. It seemed like a frivilous lawsuit to begin with and I was sad to see FatWallet comply, but I certainly understod why. Now they are fighting not only for Black Friday sales prices, but rights to republish factual information. Hopefully this will show those corporation participating that if they brndish a big stick, we'll just take it from them and beat em down with it.

Walmart: you just lost to Target

[Windcatcher]

We have one of each in my area. Guess who just won my business...and who just LOST it.

Re:Walmart: you just lost to Target

[Diabolical]

Guess who just won my business...and who just LOST it.

Sub:Walmart: you just lost to Target

Not much left to guess is there?

You're speculating

[tkrotchko]

"They were still in raw digital media form and the prices were lifted from the raw digital media form."

Sounds like you're speculating.

Since a human being has to come up with the prices, isn't it just as likely that a Walmart employee looked at a computer monitor and wrote it down?

Re:Losing Money...

[hsmomof4]

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.

Bad assumption

[NineNine]

You're assuming that the *ony* factor in where people shop & what they buy is price. That isn't true. In fact anyone in business will tell you that competing on price alone is a surefire way to fail. Why? Price is easy. Someone bigger can always take a loss on price to force you out. That's business. I own a retail establishment and I can tell you that not all people are brain dead zombies that shop at superstores for the best prices on the shittiest products. Not everyone is speeding down towards the lowest common denominator of Wal-Mart. In my shop, I offer high quality products at reasonable prices, and I'm doing just fine. There are plenty of people in my area that, like myself, are willing to shop elsewhere if they can have a decent shopping experience, and find better quality merchandise. Not everybody is willing to go into a loud, filthy, obnoxious, crowded Wal-Mart just to be able to pick up merchandise off of the floor or out of a pile, and then stand in line for hours to be "waited on" by drones who really don't give a shit about what they're doing.

And yes, I do happen to compete directly against a mega big-box superstore and yes, I am winning.

So let me get this straight...

[Newer Guy]

I read an ad for a Hard drive (TV, Stereo, car, whatever) in the paper. Stores are now claiming that I can't use digital means (email, VOIP, whatever) to tell my friend about it? Or I might be violating a federal law by emailing him that I was at K mart and they have a sale on pants? This is beyone ridiculous! This is prior restraint of free speech! OKAY..so let me violate federal law right now then: In their ad in last week's Los Angeles Times, Wal Mart had Apex DVD players advertised for $49.88. COME GET ME YOU WALMART COCKSUCKERS!!!! I DARE YOU !!!!!

Lawyers do not act on their own

[quistas]

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

Slashdot Fuzzy Logic

[Skjellifetti]

Sigh, once more someone cries "CONSPIRACY" based on anecdotal data from a single slashdotter.

Be careful of Occam's Razor. It is quite sharp and I'd hate to see your throat get cut when it is wielded by the invisible hand of Adam Smith.

I can't freaking BELIEVE...

[Windcatcher]

Grr. Ok, time to start buying online...

DMCA?

[HiThere]

Glad to hear that it's good for *SOMETHING* worthwhile.

Illegal, yes

[MacAndrew]

Trade secret law binds more than parties to a contract. On point, receiving (or revealing) trade secrets by legal means but knowing that their disclosure is prohibited is illegal. I was a little surprised by this, but it does act to bar publication by a journalist, free speech notwithstanding. So civil remedied such as injunction and damages may be available.

Obviously there is a lot of room for debate about what is a trade secret and what weight free speech concerns carry.

Trade secret theft or "misappropriation" can also be a criminal offense basically because it is considered a form of theft. Example.

YMMV. Consult a lawyer before doing anything adventuresome.

That's Wal-Mart's business.

[Rimbo]

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!

The Supreme Court would probably disagree

[Quila]

Keep in mind that collections of facts (like a phone book) are copyrightable.

It's a very fine line we're talking about here. There is no original expression in a list of items and prices since they're facts, but organizing the list into a book (phone book) or distributable flyer or ad is an original expression of those facts. Therefore, posting a PDF of the ad would be infringement; however, posting the facts represented in the ad isn't.

The fact that it was confidential material has nothing to do with copyright and should not be brought up in this discussion as relating to a claim of copyright. As I said, they can make claims under trade secret for that, but they've already hitched their wagon to copyright.

I agree that someone probably needs to be fired for leaking the list.

I think the copyright claim stems not from the fact that they merely reposted prices, but that they reposted the full text of their advertisements.

I haven't seen the advertisements, but I'll bet anything that they had some formatting, choice of font, introductory text and a company logo. I've seen the posted list, and it was just a list of items and prices.

This is the same idea as in the phonebook ruling by the Supreme Court. From 499 U.S. 340 (1991), in which a company copied a whole white pages, most data sections verbatim (=full-text repost in the Internet age):

While Rural has a valid copyright in the directory as a whole because it contains some forward text and some original material in the yellow pages, there is nothing original in Rural's white pages. The raw data are uncopyrightable facts, and the way in which Rural selected, coordinated, and arranged those facts is not original in any way. Rural's selection of listings - subscribers' names, towns, and telephone numbers - could not be more obvious, and lacks the modicum of creativity necessary to transform mere selection into copyrightable expression.

There is a very long shot that the court may believe that coming up with the prices for those items is copyrightable, but the problem is that once those prices are decided upon, they are mere facts and not copyrightable creative expression.

Why would all of these retail chains be making the same copyright claim if there wasn't some merit to their argument?

Collusion. Baseless legal intimidation usually works as people fear getting drowned in lawyers fees, and intimidation by many works even better. Mastercard did it individually to NetFunny over a parody of their "priceless" ads when they knew that parody was protected (as does anyone who's seen "The People vs. Larry Flynt"). NetFunny told them to get lost.