FatWallet To Sue Best Buy Over DMCA Threat

jkeyes writes "Online deal site FatWallet announced today that they will be suing Best Buy and other companies that sent them DMCA takedown notices. They are seeking a declaration from the court stating that Best Buy and other companies' demands were an abuse of the DMCA, and also violate the 1st Amendment." We covered Best Buy's original DMCA invocation a few days back.

Comments

Good.

[Selecter]

Its about time somebody didnt just roll over and play dead. Sic em.

IT'S ABOUT TIME!!!

[Flounder]

Hopefully the first of a long line of lawsuits that will eventually see the Supreme Court finding the DMCA unconstitutional.

Re:IT'S ABOUT TIME!!!

[phorm]

too much interpretation up to the judges who try cases under these laws

They shouldn't have to interpret, if a law isn't direct enough it should be canned. Not sure about down there, but some very *strong* laws in Canada ( as in, around a long time, or popular) have been nuked because they were either too broad, or too obscure.

Truly...

[scifience]

Since when is posting an ad flyer online illegal? If it is, TechTV should get sued also for showing their "Real Deal" segment every Monday in which they compare Sunday ad flyers. My guess is that they are just going after the "little guys" hoping that they will just give in and not fight.

Re:Truly...

[mlyle]

Most of the fuss is that it potentially allows other retailers very good competitive intelligence to be able to "scoop" them and beat their pricing by just a bit, I think.

Re:Truly...

[merdaccia]

It's all about expectations. Right now, people expect Best Buy, etc. to have great deals on Black Friday. People are waiting in anticipation, people will line up, and Best Buy will sell hordes of crap from people thinking they're gonna get good deals.

But then FatWallet (thanks FatWallet) comes along, and lists what these deals are. After people see what's really on sale, a lot of people will lose interest because the sales aren't great (as you said, "the only remotely great deal is"). Consumers have time to see whether something is really a deal or not by comparing prices in advance. This results in a lot less people expecting good deals, and a lot less people going to Best Buy on Black Friday. And a lot less money for Best Buy. Hence, the takedown notices. They know they'll lose money if people see the hype for what it really is ... hype.

Re:Truly...

[SophtwareSlump]

But.. Do you think the average person who reads FatWallet would line up at BestBuy without knowing what any of the deals are? Last year the whole Wal-Mart v. FatWallet introduced me to FW. I'm sure this year it's going to be more of the same. When I used to deliver newspapers (I'm talking about 14 years old, not 'Get a Life' age), I'd call up my friends to tell them who, if anyone had what SNES games for cheap on Black Friday. Would my friends go wait outside the door at Toys R Us or Children's Palace *hoping* that something good was on sale if I didn't call? No chance. This is because I get the Thanksgiving ads the Saturday before they go out. How is this any different, except on a larger scale? So by deflating the hype, this is a bad thing for customers? Slightly off-topic, but isn't this exactly how the movie industry works?

Re:Truly...

[Chief Mucky Muck]

IANAL, but Trade Secret protection expires when a secret is exposed publicly... damages can be collected from the person who was under duty to not release the information, but released it anyway.

For Intellectual Property to be treated as a Trade Secret, certain safeguards must be taken. The recipe for coke (the drinking kind) is a trade secret. Few people know the recipe, it is kept under lock and key, and all the folks that know it are under a non-disclosure agreement.

Did the paper boy sign and NDA? Did the person running the proofs at the end of the printing press?

Trade Secrets have to be treated as such, or they are not trade secrets.

Restoring people's faith

[BlackSabbath]

This decision will be interesting as many people have lost faith in the "system" thinking that laws are made by and for those with money.

A good decision here could go a way to help restoring people's faith in the law.

Of course a bad decision will confirm everybody's worst fears.

Re:Restoring people's faith

[danheskett]

Courts aren't in the business of restoring peoples faith in hte law. And they are not in the business in picking which laws are good or bad. Courts are in the business of ruling on how laws should be applied, which laws conflict with each other, and which laws are not enforceable.

A good decision here could go a way to help restoring people's faith in the law.
In my book, a good decision is a ruling rooted only in the law. In a lot of /. opinion, a good opinion is one that is what they want to hear to promote their agenda.

Of course a bad decision will confirm everybody's worst fears.
The worst fear beaing that the laws are made by and for those with money? If you think that is the case then your beef is with Congress.

Let me ask you this, to kinda of solidfy my kind of meandering point:

If Congress passes a law with the purpose of enriching the powerful and wealthy at the expense of the little guy, would a court ruling that enforces this law and bilks the little guy out of money bve a good ruling or a bad ruling?

Around here, the expectation is that it would be a bad ruling, regardless of how the ruling adheres to the written law. In my book, that ruling would be a good ruling.

My hope with this whole DMCA case is that the court follows the word of the law exactly. And in the future, I hope courts fully enforce every aspect of the DMCA, so that in the future, I can go to my congress person and use it as Exhibit A. I've gone to my people in Congress, and talked to them, and you know what? In every case they want examples of how the DMCA has been abused and how courts ruled.

The bottom line here is that a good and a bad ruling are really interesting questions.

Re:Restoring people's faith

[TyrranzzX]

And I, and millions of others, have written letters to congresspersons, only to get predigested letters back stating "everything is ok, please vote for me".

I could garountee you that if you sat me down infront of the senate and asked me to explain to them why the DMCA is bad I could convince them within an hour as could just about any well educated technically inclined individual could.

To put it bluntly, when your ruling body passes laws that creat more conflicts than they solve, that is a bad ruling body. Much of the time this isn't due to people saying "hahahaaa, we'll get you and your dog too!" but more along the lines of most of the people in congress being traditonally educated buisnesspeople with plenty of education in other areas who, imo, trust corperations too much.

So, what I really thing has gone on is a fundemental change since the past. Corperations began creating all the resources we had and after a few generations, the old guys who said "corperations are bad, we must regulate this tool lest it gets out of control" died off to leave new people to come in and get elected. The new people had more faith in the corperate system than they did before, and as time went on, congress simply became more corperate friendly without realizing the folly of this, which is that if you give corperations all the power they want, and let them have flawed leaders, you unbalance the power system (such as competition) that keeps the peasants happy. When this happens guys at the top get greedy, and they'll conspire with their friends to force the mark of the beast onto us as an example and force us into slavery.

Add to this bribery, er, lobbying and you've got a corrupt goverment. With every law nobody agree's with, respect for all law by this goverment will decrease until there is no law.

The measure of a goverments success, in any incarnation, is it's ability to solve conflicts between people. A good decision would solve the majority of conflicts, while a bad decision would solve the minorty of them and a really bad decision would cause even more conflicts.

Re:Restoring people's faith

[f0xb8]

Your opinion is not only flawed it is obviously the opinion of a lawyer.

The law is intended to protect the people.

Any law however well intentioned that subverts the liberties of the people of the united states is a bad law and any judge worth his salt would deny the party using this law to subvert said liberties to prevail should be and eventually will be found to be in error by his peers.

While I for one do not consider corporations citizens I do respect the rights of people to excersize and to defend their rights.

Re:Restoring people's faith

[Qzukk]

The bottom line here is that a good and a bad ruling are really interesting questions.

Lets step back from Nietzsche here for a second and get over the whole jenseits von Gut und Bose concept. "Bad" occurs when people are hurt in various ways, "Good" occurs when people are helped in various ways. When the two conflict, how do you determine what is "Good" and what is "Bad"?

Needless to say, your concept of "Bad" has one small problem: if the court rules against an abuse of a law, this becomes Precedent, and can be used to protect against further abuse of that law or other similar laws. I'm sure if "your people" in Congress did manage to repeal the DMCA, it would be back in a couple of years under a new name, however the legal precedent will be in a musty old law book a hundred years from now. Thus, in the long term for the proper operation of justice, your "Bad" is actually "Good".

In this particular case, the point is pretty moot. The letter of the law specifies that fact cannot be copyrighted. Represenations of facts can be copyrighted (for instance, the artwork, layout, and lettering of the flyers in question) but the prices on those ads are factual information that cannot be copyrighted, and therefore cannot be "infringed". Thus, the defendents in this lawsuit have no grounds to have invoked the DMCA, and with no possible way of proving any kind of infringement are liable for damages incurred by their actions (including attourney fees) under Section 512(f) of the DMCA ("misrepresentation").

Thus assuming the court bothers to uphold the law as written, the whole point is moot, everyone is happy (well, except you, since if you took this to your congresscritter their answer would be "well thats good, it worked!"). Of course, lawyers use all sorts of slick talking, and will probably fling all sorts of lingo at the jury if this does manage to go to trial in attempts to confuse them on the matter, so if FatWallet fails to get summary judgement in their favor, all bets are off, as usual.

Re:Restoring people's faith

[danheskett]

Ohh that's brilliant.

This is why Congresspeople don't really like to talk to the public one on one.

SAY NO TO DMCA Abuse

[tonyz2k]

It seems like the DMCA is a card often played by large technology-oriented companies. Its time for Fat Wallet, and Slick Deals and the rest of them to fight for what they believe in. After all it is america and they need stick it to Best Buy and these other tools who insist on using the DMCA. I mean seriously this DMCA shit has got to stop, first kevin mitnick, then that kid from northern europe with his DVD stuff, that russian kid for his adobe font stuff, whats next, are the Creators of Linux going to jail for using code from the Windows TCP/IP stack!? Wheres the DMCA Sux tshirt when you need it. Think Geek, make that and also a bumper sticker, I'll wear it down in DC and show the Senator Hatches whats what!

Thank WallMart et al.

[shis-ka-bob]

I didn't know about FatWallet until I read this story. This site seems like a useful way to find good deals. Sometimes, a lawsuit is better than advertising.

Re:Limiting DMCA

[SharpFang]

Next time somebody patents oxygen-nitrogen mix and the court will say you don't have to pay royalties for breathing air. Yeah, big win.

Sorry, but this reminds me "victories" from state of terror. In a country where people get killed for the way they think, you're happy if you go free from prison (with barely your toenails missing) and announce everyone that after all they decided you DO have right to paint your fenceposts green.

Stop the DMCA!

[chrispyman]

It's about time that someone stands up and fights back against these blatant abuses of the DMCA. The fact is that this law can be so easily abused, and we should get the DMCA repealed. It should be made way more difficult to get a subpoena than just having some lawyer write a nastygram.

no, actually, it is not.

[jmweeks]

Ad flyers are copyrighted, yes. That is, the layout and presentation and so on are copyrighted implicitly. The data, howeverthe prices, the listingsare not copyrighted. They're not copyrightable. They are ideas, they are facts, and they are completely beyond the scope of copyright (and therefore fair use of that copyright).

They fall squarely and simply under the First Amendment and can be used for any sort of purpose (including commercial). News reporting or not. This is free speech, after all.

Unless--well, it is possible that they are trade secrets. But then why is Best Buy waving around the DMCA, a copyright law?

"Insightful"?!? Are Mods DRUNK?!?!

[Anonymous Coward]

Maybe they're just stupid.

The real question....

[EvlG]

...is how many FatWallet users will put their money where their mouth is and stop shopping these retailers for deals?

Why is Best Buy pissed?

[Anonymous Coward]

I don't understand why Best Buy et al doesn't like their deals being leaked. How else are you supposed to know what's going to be one sale? I know I, for one, wouldn't be going there on Friday if I didn't see the leaked deals. I'm not going to wait in line for an hour without knowing what I'm getting.

Or is this what they want? Last year out local store seemed thrilled to have broken last years sales record with over a half a million in one-day sales. McFly?

The Point

[ajs318]

The point that some people seem to be missing is that the US Digital Millennium Copyright Act only refers to copyrighted material. As such it cannot be applied to the pricing information in this case, because that information is not the subject of any copyright: only the creative content of the advertising flier {artwork, presentation style &c.} are copyrightable. The prices themselves are automatically in the public domain.

However, the flier was almost certainly subject to an embargo. If someone has disclosed information before it came due for release, then they probably have breached a contract. But that is a simple issue of contract law, and has nothing to do with copyright. {Another oft-forgotten point: Copyright law only applies to material which is intended eventually to enter the public domain: copyright provides a temporary monopoly on your work in exchange for you making it available to everyone. A trade secret is not intended to enter the public domain and therefore would not be covered by copyright law.}

Suppose you live in a place with heavy-handed building control laws that allow for the demolition of unapproved buildings on summary judgement. Now your neighbour parks his car, perfectly legally, but in such a place that you have to have to walk a few metres further to get to your front door. Would it be fair for you to claim that the car was in fact a building that had been improperly erected without due authorisation, and order it removed? That is exactly what this case smacks of to me.

Re:Not Pro Bono, and no hand out

[Chief Mucky Muck]

The reason is simple - in our complaint, we are asking for our fees to be reimbursed by the defendants. If we were to accept funds, and fees were to be granted, then what?

It wouldn't be right for us to keep it.

As I said before, if ever the time should come where we can't do it ourselves, we'll let everyone know.