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

Re:Hmm...

[the morgawr]

I'm guessing the lawyer is doing it pro-bono if he's really good. OTOH maybe fat wallet has that kind of money...

DMCA covering pricing?

[SharpFang]

YEAH! I DESIGNED THIS PRICE!
Nobody! I repeat NOBODY from now on dare to put $9.99 price tag on their merchandise or I'll call people from RIAA, MPAA, FBI, CIA, NSA and many more scary letters and sue, sue, sue! HAHAHAHAHAHA[evil laughter]

DMCA

[m0rph3us0]

Why not just not license the fatwallet.com information to the litigants, surely if they can sue for prices fatwallet can sue for infringing on the copyright of its name, website, owners address, etc. I'm still waiting for someone to patent reducing prices online as a business method.

one small step for man. one giant leap for mankind

[mgoodman]

let's hope this is the first of many, so that our children don't have to deal with this nonsense.

media whores 101

[segment]

If they really gave a shit about the privacy of others etal, they would oust their logfiles entirely. Like Cryptome does, and many others do. They're not obligated to keep log files under any binding law, and now they're bitching about being targeted for user id's etc.. Here's a noble idea for those who want to protect the privacy of others ln -s /var/log/access_log /dev/null otherwise wake up and smell the coffee... You will be targeted... Some of my own logs? I parse them out, all I mainly get are gov visitors to my https://www.pol*/foia/ directories. I keep them in case some fscktard makes a move and I have to report something to an ISP, so it's a trade off for me. As for them they're not obligated to keep the logs, and they're not obligated to remove publicly posted information. What's Bestbuy going to do after, sue Google for keeping it cached... Get real

Positive effect of DMCA

[fiannaFailMan]

Fatwallet is another cool website that I would never have heard of if it weren't for this. There's no such thing as bad publicity.

It's like the Fox News Channel giving Al Franken's book sales a huge boost by suing the guy.

Re:Positive effect of DMCA

[kidgenius]

I don't know about that. You might want to check w/ SCO. Granted, their stock has risen a tad the last few days, but all in all, they are the laughing stock of the tech/lega-world right now.

Re:Truly...

[SophtwareSlump]

I'm guessing that Best Buy is going after FatWallet this year (last year it was Wal-Mart) since most of the 'Black Friday' specials are loss leaders. You know get people in the door with a cheap digital camera and hope they need to buy some batteries, a USB cable, a CompactFlash card and the 4 year protection plan. I'd like to think the people that read FatWallet aren't going to buy the accesories on an impulse if they can get them cheaper elsewhere.

I still don't understand what the big fuss is because there's always limtied quantities of the really good deals. You can't get a raincheck and you have to deal with the masses. Does Best Buy really care if they sell out of something 5 minutes after doors open, instead of 10? Are they trying to intentionally alienate their customers? Do they think people sharing information on the Internet is going to go away?

I've looked at most of the ads for Friday already via links on Anandtech forums and the only remotely 'great' deal is at Office Depot for a Lite-On dual format DVD burner for $89 out the door. Or $79 if you price match it to Best Buy ;)

No holds barred.

[mrsam]

The linked press release includes a link to a copy of the lawsuit filing by fatwallet.com

fatwallet.com is not just going for a declaratory judgement that these DMCA complaints are bunk. fatwallet.com's complaint also directly challenges the constitutionality of the DMCA (see paragraphs 40 and 41).

If fatwallet.com gets lucky, there's a small chance that this lawsuit might, just might, result in the DMCA being declared unconstitutional!

Re:No holds barred.

[anthony_dipierro]

42) seems like quite a stretch. They seem to be fully admitting that they don't have any standing, and are relying on some kind of injury by proxy. I'd suspect their constitutionality claims will be thrown out for lack of standing.

Moreover, the whole argument seems poorly made. The DMCA does not require that Fatwallet remove any content, it merely provides Fatwallet with safe-harbor from copyright law by removing the content. The problem here isn't the DMCA, it's copyright law. Actually it's not even copyright law, it's how copyright law is being applied.

best bye!

[medelliadegray]

sorry best buy,
you have lost a customer from your actions.

I am...err... was a consistent shopper there.

i personally will not buy from best buy again till this case is resolved, and never again if BB wins it.

i'm utterly sick of large corperations trying ot sling their laywer might around onto undeserving people.

i guess BB's just one more tagged onto the list of places/corperations i will not buy from due to their actions.

RIAA **AA's---buy used! (or not at all)
MPAA
Wallyworld
M$
Lexmark
gamespy
and now.. Best buy!

funny too... because i was just going to head down to best buy next weekend for a large chunk of my christmas shopping... (i cant forget to buy myself a present or two now can i?!).... i'm in the market for a printer as well.. ha.. and sice i've been playing online games more, i WAS going to get a copy of gamespy too...

speaking with your wallet--the only language corperations understand.

Re:Goatse.cx webmaster to sue for DCMA violations

[FraggleMI]

I know and talk to him frequently, and that is not a picture of him. He gets something like 4 million unique hits a month.

Re:IT'S ABOUT TIME!!!

[benna]

As was explained to me by a Lawyer who worked for Congress at one time, most laws are the result of knee-jerk reactions to public/corporate demand. Unfortunately, not much thought goes into the consequences of these laws. They just want to keep their jobs.

Another problem is that Congress makes some of these laws so vague as to leave too much interpretation up to the judges who try cases under these laws. Unfortunately, organizations such as the EFF don't have the clout or the resources that the corps do.

Impacts RIAA too...

[utlemming]

If you read the legal brief (and for a pre-law student like me, it is interesting reading) the implications are far-reaching

One of the arguments made that will impact RIAA and the MPAA is that the DCMA shifts the burden of proof of the copyright from the person claiming copyright to the person accused of violation. FatWallet claims that this violates the Due process clause gaurenteed in the Fifth Amendment -- in other words, you have to go to court to prove that you did not violate a copyright; whereas with Due Process, they would prove that you did violate the copyright Same concept as guilty until proven innocent. FatWallet is arguing for innocent until proven guilty. FatWallet also is arguing that they should be given adiquate time to notify the poster.

The implications would be chilling for the RIAA. Why? Because instead of firing off a couple hundred law suits, they would be forced to prove to the ISP that the subject of the supeonia had in fact violated copyrights. Then your ISP would have to notify the alleged offender of copyright infringment so that they can defend themselves.

The whole message of the legal brief is to take out the DCMA one leg at a time. First they attack the copyright that Best Buy, et al., has and then they go for Fifth Amendment issues. It is a great thing. It is just interesting that the people who used the DCMA in the wrong way to provoke a law suit is retailers trying to prevent Black-Friday prices from being let out.

Re:Good.

[Anonymous Coward]

Are you kidding?
A private company wants to create an advertisement.
The day before they release the flyer - RAM prices double.
Said company changes things as necessary (this is a business) and can continue to make a profit in a regular business sense (or choose to eat the price change and move on - but they have a choice).
Your scenario is someone working at some printer operation can be paid off to release company confidential information (people at the company locations - even if they know the next "sale" price are not allowed to talk about it). Now people are arguing in the customer service line about what they were told on "the net" two days earlier and what they see in the store now. Said store looks bad if they don't cave to what was on the net and eventually said store employees feel the "pinch" (lower salary, harsh attitude daily) of the bull**** you're defending ("I think I can publish things on the net as if there factual if I have spyed well enough") - nuf' said.

Not fair use, unregulated by copyright law.

[jbn-o]

However, posting excerpts therefrom should count as news reporting, giving it a boost under the fair use criteria (17 USC 107).

No, you are incorrect. The decision in Feist says facts are not copyrightable (see the decision in section II A says "This case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are."). This would mean we're not dealing with fair use, we're dealing with something outside of the US copyright regime. As Lawrence Lessig made quite clear in his "Free Culture" speech in 2002:

Talking about fair use, this is not fair use; this is unregulated use. To read is not a fair use; it's an unregulated use. To give it to someone is not a fair use; it's unregulated. To sell it, to sleep on top of it, to do any of these things with this text is unregulated. Now, in the center of this unregulated use, there is a small bit of stuff regulated by the copyright law; for example, publishing the book--that's regulated. And then within this small range of things regulated by copyright law, there's this tiny band before the Internet of stuff we call fair use: Uses that otherwise would be regulated but that the law says you can engage in without the permission of anybody else. For example, quoting a text in another text--that's a copy, but it's a still fair use. That means the world was divided into three camps, not two: Unregulated uses, regulated uses that were fair use, and the quintessential copyright world. Three categories.

So if citing facts were fair use that would mean ordinarily citing facts is regulated activity but you're allowed to do it in certain circumstances. But since we're dealing with activity not regulated by copyright law, this means fair use is not the key to understanding why we can cite the price of Best Buy's goods any time we want without first getting permission from Best Buy. This is also a very potent rationale for FatWallet against Best Buy.

Re:Restoring people's faith

[danheskett]

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". And what did you do with that letter? Follow-up or toss it? Have you actually talked to your Congress person? If you want to influence your rep's opinion, here are some tips: talk to him/her. Your House Rep. Not your senator. Get them on the phone or better yet do it in person when they are in state. It's not that hard. I've spoken on the phone with my rep at least 4 times since his first election. Straightforward really. Call and ask to speak with him/her. Tell them you are a voter, and give them your street address/village/area of town. If they can't talk ask them for a callback time and date when the rep. will be accountable for calling. Get the person on the phone's name. Call back a few hours later and confirm that they have all the details right - phone number, your name, address, etc. Give them the topic vaguely but honestly and without editorial - "I would like to discuss the Congressman's stances on copyrights" is better than "I demand that the Congressperson stop pandering to big business and the hegemony of the elite few".

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.
No, I don't think so. There are other opinion, and frankly, most people don't give a damn about the things you'll tell them. For a lot of people, the issue is this: should a product designed to be uncopyable be protected by the law as though it was really uncopyable? Anything you can say or I can say isn't going to change that. But the DMCA isn't the issue.

On its face, the DMCA isn't vastly unconstitutional. It may in fact violate the Constitution in my opinion, but based on how courts have ruled before, based on how things have been going in terms of copyright and law in general, it's not a law that is unconstitutional on its face. So then the question is, once an individual judge has ruled the law constitional in his mind, is better that:

The judge disregard his finding, and other courts finding, and rule in favor of the defendant despite the law - effectively saying that the law is legal and valid but just not going to be enforced in this one case OR

The judge rule in favor of the plantiff and highlight the exact reasons in the law that the defendant is guilty

I prepose the second is better, the "good" ruling. The first ruling gets that one person off, but does nothing to further the cause getting the law I disagree with repealed.

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.
See, I suggest that is stupid, and is actually the reason why things aren't going that well. A court should rule based on a few narrow things: the facts as proven in court, the law as presented by Congress, and case law provided by other Courts. All this other stuff you mention is silly. And what it leads to is people feeling that the law is arbitrary. Theoretically, if you present 100 judges with the same law and 100 identical defendents all charged for comitting the same act that they did in fact commit you should get 100 rulings that are identical. Now, you'd get a 100 different rulings, many that conflict. Because the law is ruled on without consistency.

All this blather about corporations, power, money, corruption is useful and fun to talk about if you are Congress. If you are the courts, it's all inane drivel irrelevant to the stuff at hand.

When defendants act as their own laywer in court they end up sounding like you. Talking about society this and power structure that. In the end they forget that the role of courts is not to make a just society, not to determine good or evil, but rather, to take a specific instance of an act, compare it to a specific instance of law, and decide how they relate.

customers

[morgajel]

Last year I remember hearing about this story, and sorta had a "good for them" feelgood moment.

A year later I'm a little wiser and felt that someone should say this.

Thank you.

Since I don't know a whole lot about your business, I plan on checking it out and trying to become a paying customer solely because I believe you are a "good" company. I'll make sure to spread the word to my family so they can know what's going on.

there aren't many out there with the balls to do what you do, so again, Thank you.
-Morgajel

Re:Restoring people's faith

[danheskett]

I think the strong court we have is overall a VERY good thing.
No, its a VERY bad thing.

It has lead down a path to a point where no one has any idea what any given judge will rule on any given day. Activism has taken things to the point now that there is positively no consistency in law and no coherence at all.

Ya'll Misunderstand

[Anonymous Coward]

I think many of you don't understand what's happened here and I feel that Fatwallet has no chance of success. Basically, the Post-Thanksgiving Day sales prices are NOT advertised until the newspapers send out flyers that morning... So posters to FatWallet have broken laws by posting copyrighted and possibly trade-secret information to the website. This could be more then a simple copyright issue... it could introduce federal criminal charges against those posters if the larger companies choose that route.

Take for instance, a powerful company like Coca-Cola... and suppose they decide to drop their prices by 50cents on the busiest softdrink-sales day of the year... (for whatever hypothetical reason). They want to advertise the drop only on that particular day. The advertisements must be prepped ahead of that day to be printed on time. Now if someone along the chain... the page-layout people, the print company, the newspaper inserters... a janitor who saw a memo in the trash... if anyone leaks that info, then it's possibly a violation of a contract or non-disclosure clause.... and illegal.

There is no freedom of speech issue here. It's simple.. Best Buy created a sales strategy and someone along the chain required to implement that strategy stole the secret strategy and made it available for all the world to see.

If a football player were to give his team's playbook, strategy, or info to interpret coach-QB sign language to the opposing team, I'm sure the 1-2% of you who are sports fans would be upset... and the violated team would have every right to bring legal charges against the thief.

Re:Ya'll Misunderstand

[utlemming]

If you read the legal brief, the Supreme Court does not consider sale prices copyrighted material, it is factual. The only thing that you can copyright for sale circulars is the formating, pictures, etc., but not the actual data. Complaint found here, look at article 28 Further, the legal brief link, if you read it, says that sale price data, again according to the Supreme Court, IF protected at all by copyrights is so loose that it does not merit strong protection.

Trade secrets is another thing. And FatWallet addresses the concerns, but says that if they violated trade secrets that is a state, not federal violation. The only issue here is that a trade secret was stolen, not any copyrighted material.

Further, the freedom of speech issue here is the right to annoymous speech. The Supreme Court has ruled that annoymous speech is a protected form of speech, and that unless an actual violation of law has occured then you can not compel annoymous speech to have a name attached to it.

When commenting about a legal proceeding, read the legal briefs if they are available. I know that 19 pages can be rather boring, but if you want to comment and sound intellegent, then read it. All these issues have been addressed in the brief.

Re:The Point

[Maestro4k]

• 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.}

This is the dirty secret that Best Buy/etc. and the MPAA and RIAA don't want to mention. A lot, if not all, of released information (or movies/music online) happens by insiders. Instead of trying to fix their own problems, they hire lawyers and cite the DMCA and go after the people who were third party receivers/distributers of that info. If they really want to fix things, they need to find out who leaks this stuff, and stop it. They also need to find out why they do so, and how they can motivate employees to not be tempted to do so again.

Of course with leaking info a way of life now (the info leaks from the White House have taken it to new highs this past year), I doubt this will ever happen. Easier to sue the messenger than to stop the message from being sent in the first place I guess.