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FatWallet Strikes Back Using DMCA
J. F. Miller writes "A recent Slashdot article reported how FatWallet had been the victim of a DMCA attack by several retail chains. After initially stating that they would not appeal, FatWallet was forced to take legal action when Wal-Mart further subpoenaed the name of a person who posted price information. They are accusing the stores frivolous copyright assertions and demanding payment under Section 512(f) of the DMCA"
I'm a member of fatwallet, and I'm glad Tim is taking a stand. Copyrighting prices is the dumbest thing I've ever heard. These stores should have been glad for all of the free advertising, or at least accept that good information will not stay hidden long. I just feel bad that he is having to cough up so much dough to fight something so ridiculus.
I can only hope that this case gets enough media attention to make Wal-Mart lovin' Joe Sixpack stand up and take notice that this whole DMCA thing affects him as well. I would also like to think that this will be a good case to showcase how over-reaching and prone to abuse laws like this are.i d=20021202.112004&time=11%2043%20PST&year=2002&pub lic=1 at ascribe.org.
If anyone finds any more links about how FatWallet.com is persuing this case/counter-suit please post 'em here!.
So far all I found was this http://www.ascribe.org/cgi-bin/spew4th.pl?ascribe
"If I wanted your input on my pet project, I'd stick my hand up your ass and use you like a sock-puppet." - Muse
Unless I am missing something here, which is just about as likely as snow falling outside right now (oh, crap, it *is*), why would corporations be uptight about their sales info getting pushed out to a wider audience? Isn't this exactly what their advertisements are supposed to do?
I think maybe this shows that the people who run/are our economy here in the States are just deranged. Now, if the site took straight files from websites, that might constitute a violation (albeit a very minor and sketchy one at best). And, if they posted this information well before the company's in question had officially released the info, that might also be serious. But I can't tell from either FatWallet post when these ads were published or, to be honest, what all the whoo-ha is in this brouhaha.
sig not found
Depends on who is using it.
How funny is that?
maybe wal-mart is _trying_ to kill the DMCA?
>:-D
copyright? you cant copyright a price any more than you can copyright an idea or a word.
Thanks to file sharing, I purchase more CDs
Thanks to the RIAA, I buy them used...
This legislation has been abused like a village bicycle!
/. 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.
;)
Why the heck does it still exist? You know its bad, I know its bad, if you explain it to a regular joe, he will know it is bad.
Whats happening? Anyone who wants someone else on the internet to shut up, uses DMCA.
Is it too broad? Heck yeah! Are lawyers using it whenever they can? Sure,
I really hope that fatwallet has a clued-in lawyer for this. I hope that the judge will be half as clued-in as the above mentioned lawyer. I hope fatwallet wins fat damages.
I mean, Fat damages, damages so fat, next time greedy_company_01 comes to their lawyers crying, the lawyers instead of saying "yes sir, straight away sir, we will use DMCA sir" will say "erm, you have absolutely no case whatsoever, if you want to continue legal action, this will cost you way more than its costing you now"
Lawyers aint cheap and when court orders someone to pay for the damages/legal costs, it aint cheap.
Thus, one of the great ways to defeat DMCA absue in the future is to make it costly for those idiots who pull out DMCA whenever they think they are loosing a few cents to competition/someone smarter.
So, in conclusion of my long-winded post, OG OG fatwallet's lawyer! DIE DMCA, DIE!
I would like to contribute to a defense fund of sorts for FatWallet - this is a worthy fight and legal fees are going to be expensive - anyone know if they are accepting donations or not? This case can set a very scary precedent, so hopefully this will gain national news.
- Rick
www.bluealien.org
Prophets of the Blue Alien
It was that little 'Smiley' guy that is always cutting the prices. He was ticked off about being overworked and underpaid.
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...
This gave me a chuckle. The DMCA is basically being used on itself. I guess it's sort of a mix of silly putty and a swiss army knife, apparently - shape it to anything, do anything you want!
More power to FatWallet. Let's hope this not only saves them, but deters future DMCA stupidity and helps point out how dumb the DMCA was in the first place.
"The Sage treasures Unity and measures all things by it" - Lao Tzu
Why would a company want to stop this free advertising?
Well, if their prices are not the lowest, they obviously don't want that to be a well known fact.
Once again, this is just a case of old time, brick and mortar mentality creeping into the global, immediate nature of the internet.
Before the internet was so popular, consumers actually had to get off their fat arses and go to the stores to shop/compare prices/etc. Sure there were newspapers and magazines that made it possible to compare prices, but these can hardly compete with the speed and penetration of the internet.
What happens if everyone knows of a website where they can go to see retailers prices on certain products? They most likely choose to buy from the retailer with the lowest price. That is, unless they have some personal loyalty to a higher priced retailer, or perhaps they had a bad experience from the low price retailer, and won't buy from that particular store.
Obviously, this is bad news for the retailers. I'm sure that they made quite a few sales based on impulse, where the consumer is in the store, looking at the product, and is tired of driving all over town looking for the best price. He's gonna buy at a higher price, right? That's what the retailers are betting on.
Unfortunately for the retailers, the internet is forcing them to rethink their business strategies, and sometimes it's easier for them to bully the little guy than to change their entire strategy.
"A terrorist is someone who has a bomb but doesn't have an air force." -William Blum
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.
This sig has been temporarily disconnected or is no longer in service
there is a discrepancy between what walmart and fatwallet are saying. Walmart asks for the removal of "their Circular" and fatwallet claims they had "sale price data" posted. these two things are clearly different. if someone posted walmart's flyer, in it's entirety and unedited, then that IS a copyright violation. after all, walmart does pay someone to make those idiotic things.
if, on the other hand, the original poster was not so lazy, and typed out the data, then walmart has no claim. In fact, fatwallet would have only legitimized their claim by removing anything from their site after walmart requested the removal of the Circular. So was it a link to scans? because if it was, shame on fatwallet, for removing something they weren't asked to remove.
This comment is fully compliant with RFC 527.
because of bad laws about (electronic) intellectual property. That's the only way the politicians here in Europa will have their eyes opened before we have similar laws.
So therefor I support any lawsuit based on the DMCA. Not because I am in favor, but because I oppose it.
the pun is mightier than the sword
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.
"This is an outrageous example of a corporation contorting copyright law and attempting to use the DMCA to out the identity of an individual sharing factual information. The DMCA's subpoena provision, which allows an entity to demand the identity of an alleged infringer from an Internet service provider prior to filing a lawsuit, is controversial to begin with. Behavior like this shows how susceptible it is to abuse."
This is the type of info that needs to get out to the public...
Jaysyn
There is a war going on for your mind.
I am in no way advocating the use of the DMCA for anything (it sucks)... but I think most of us here are missing some big points.
1) The sale prices are used by the retail stores to give people a reason to walk into the store. They lose money on these sales, but they do this because they know that once they get you into the store, you will more likely than not buy something else too. This is called baiting the hook. Having prices posted everywhere in advance defeats this entire scheme. Now customers will just already know what is on sale before entering the store and just get what they want and get out. No profit to be made there. This is why they are mad.
2) Prices are NOT protected under the DMCA. This is not what they are mad about. What they are mad about is the DIGITAL MEDIA that the prices were listed using were stolen and posted. To make this clear - Best Buy sends the sale prices on digital media to, say, the Washington Post for advertisement on Friday (the same day of the sale). At the Washington Post an employee takes a look at this digital media and says, hmm... that is nice, and copies it to be posted. The problem with that is this digital media has been copyrighted by Best Buy... so the person posting the prices is guilty of theft of copyrighted data. It doesn't matter what the copyrighted data is (happens to be prices in this case), it is still digital media theft, and that is what the DMCA is for.
3) The web site has been subpoenaed to reveal the name of the poster. Most likely this poster is someone who works for a publishing company such as the Washington Post or whoever. This person will most likely be fired if his name is revealed. I am sure publishing companies like the Washington Post have an NDA agreement with its various advertisers. Posting prices is a blatant violation of those NDA's. And the person who stole the digital media knew this, and did it anyway - I am not sure why but he was thinking Best Buy would not care. How wrong he was.
4) I hate the DMCA - I don't like how it controls me and the stuff that I own. I am not advocating the DMCA in any way. I am just showing you all WHY the DMCA applies in this case. It is not the prices itself - it is the digital media the prices were on.
Ctrl-Z
It's the responsibility of the owner of the trade secret to protect the information. By giving it to so many people outside Walmarts direct control, they have demonstrated that they are not protecting the trade secret.
Walmart loses!
I'm glad I saw this blurb, otherwise I would have never known there were sales after Thanksgiving.
I will become a user of fatwallet. I will support thier advertisers. Any company that has the balls to do this deserves my support.
Software Wars
Make filing frivolous lawsuits a criminal offense for the attorney and plaintiff.
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.
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.
The bickering is good and all, but you should just fight back a different way. Boycott Wal-Mart. I already have. I can't stand a company that will clear cut acre's of land to build a store, when they have one down the street already! I see more "former" Wal-Mart's than I do open ones. All of them empty dinosaurs of wasted, asphalted, land!
So, tell your family. Tell your friends. Tell Wal-Mart what you are doing and why! "No more business for you from me" is the message that needs to be sent. As Tim said in his article on FatWallet, "The Customer is always right". It's my money and I'll spend it where I want to. So if you don't like what they are doing, shop somewhere else!
All you need is a google search to find a local walmart boycott near you.
The truth is usually just an excuse for lack of imagination.
Why the heck does it still exist?
Because Hollywood/TV/Music industry gave $21,480,772 in soft money during 2002 to keep it there...
Lawyers aint cheap and when the court orders someone to pay for the damages/legal costs, it aint cheap.
Lawyers gave $12,074,762 in soft money during 2002 to make sure these disputes can't be settled without them...
This public service announcement was brought to you by Open Secrets
People who truely believe in free market economies would never let the government regulate technology like this, or sanction a virtual monopoly to the Baby Bells, or give the FCC the powers it has to stifle communications.
"Communism is like having one [local] phone company " - Lenny Bruce
It's called barratry.
Note to M1-ers: a curt but otherwise insightful message is not "Flamebait" or "Troll".
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.
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.
D... M-C-A!
It's fun to sue with the
D... M-C-A!
But there is no way any of those stores could reasonably claim copyright. That means their letters under the DMCA subject them to fees under the DMCA and possible purjury and ethics charges for their lawyers.
However, the letter did mention the possibility of the stores claiming trade secret, but dismissed that possibility fairly well too.
Wal-Mart was supposed to decide whether to withdraw the subpoena yesterday. If not, FatWallet reserves the right to wait until the 10th to file a motion to quash. Since Wal-Mart claimed copyright violation as the reson behind the subpoena, then their subpoena is baseless and will probably be quashed. They should have claimed trade secret.
I think everyone is looking at this wrong. Those of you who think this is going to show how evil the DMCA is have it backwards: It's going to show that the DMCA is fine, because when companies use it incorrectly, they're going to open themselves up to big nasty lawsuits like the one Fat Wallet just filed.
Yes, people have been abusing DMCA until now, but this'll be the big correction that puts everything back into balance. Especially if Fat Wallet wins.
Remember, if oyu use the DMCA, one of two things is true:
1) You own the copyright, in which case you're perfectly justified in asking that the material be removed, and DMCA saves a lawsuit
2) You don't, in which case you just committed perjury and can be sued for easy money.
(IANAL)
paintball
I'm a semi-regular visitor of FatWallet and the thing that disappoints me the most is that people continued to post published deals for those retailers who sent DMCA letters to Fat Wallet. It is a sad commentary to how whoreish people will be just to get "a good deal", no matter how morally-corrupt the retailer (or their attorney team).
If these retailers are crap and you don't approve of their actions, then quit shopping there and stick to it. Merely saying that you think it sucks and then when the ad comes out talking about all the "kewl goods" you picked up at the sale shows that you approve of their actions.
I almost forgot to include the obligatory DMCA comment. The DMCA bites.
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.
IANAL, of course, but I'm sure WalMart sees prices not as "prices" but as notices of "strategic intent."
a dvantage-over-our-competitors -- is something that's not been discussed much.
The prices themselves aren't copyrightable I suppose, but the fact that the prices -- in the case of Black Friday, in particular -- are part of a larger strategy.
In other words, WalMart probably doesn't care that that XBOX is ten dollars off -- or whatever -- but they do care that the fact of discounting that specific item at that specific pricing level is, in fact, a strategic bid to gain an advantage over shoppers at a specific place and a specific time.
Now, before you flame, I'm not saying that WalMart is justified in what it's doing, but I do think that the idea of "prices-as-strategy" -- or better yet, Black-Friday-as-the-core-of-our-strategy-to-gain-
I suspect they view the overall prices as a kind of "war document" -- much like any war plans that cross the president's desk. There will be a multititude of plans, of course, but part of the tactical decision making process is to sign off on a particular set of a plans, at a specific time, based on specific intelligence.
Retailers, I'm sure, view Black Friday in very much the same way.
News Flash!
Walmart places copies of competitor ads inside thier stores. They use these to show the consumers which prices they will match from a competitor. If Walmart ads and prices are copyrighted then so are everyone else's ads and prices.
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
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!