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

Hmm...

[Anonymous Coward]

I wonder if they've got a good deal on a lawyer?

Good.

[Selecter]

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

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.

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!!!

[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.

Not the first time!

[anaphora]

This isn't the first time FatWallet.com has stood up to DCMA-pushers.

Oh boy

[Anonymous Coward]

Now when I wear my fatwallet tshit in line at bestbuy at 2am on Friday I might be recieved with less than open arms, and miss out on my $11 Microwave.

Re:Oh boy

[61Dynamic]

A "tshit" huh? I gotta get me one of those ;)

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...

[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 ;)

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.

My Expert Analysis

[xintegerx]

I think they like each other. You know how someone likes each other, and starts passing notes back and forth? Secretly liking each other? That is what is going on here.

They are crying in the back seat of a car, for their mommy to come forward and slap them around a bit. The solution, as it is in all families in these cases, is to make the two hand their stuff back to each other and shut up. If I was the father in this family, I would rename these crybabies: Best Buy wants the name FatWallet and FatWallet would be more appropriately named Best Buy.

There I fixed everything.

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.

It's fair use

[tepples]

Since when is posting an ad flyer online illegal?

Ad flyers are copyrighted. However, posting excerpts therefrom should count as news reporting, giving it a boost under the fair use criteria (17 USC 107). Heck, I'd guess that the prices themselves are facts or ideas and therefore subject to the exclusion of copyright on ideas (17 USC 102). You're right as far as I can tell.

Goatse.cx webmaster to sue for DCMA violations

[Anonymous Coward]

I'm surprised he hasn't sued everybody under the sun. The goatse man has been posted and altered everywhere on the Internet now.

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.

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!

Going up against the Best Buy legal team???!

[Y-Crate]

I certainly hope they have a fat wall....er....nevermind.

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:Thank WallMart et al.

[Slack3r78]

I've never cared for Fat Wallet's layout, and as such, spend a lot of time lurking in Anandtech's Hot Deals forum. Basically, if there's a deal on anything computer-related going down, you can probably find it there, and most of the better deals from FW manage to drift there fairly quickly as well. =)

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.

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.

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.

[SophtwareSlump]

I'd love to see the faces on the MPAA law team if FatWallet gets the DMCA overturned because Best Buy threatened to sue over a circular you could find all over the internet. If a law is overturned and declared unconstitutional, do the people who have been sued/jailed under the law get a second look? I assume it would improve their grounds for a counterlawsuit / civil suit, but I know next to nothing about law.

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?

Insurance!

[gearheadsmp]

Excuse me Mr Fat Wallet, but did you purchase insurance for that item? If your attorney winds up dead, just bring him to the store and we'll replace him with a look-a-like at no charge. Just 25% of the cost of the item - a real value!

* You must have your reciept, otherwise we will laugh at you

Re:Insurance!

[the_mad_poster]

* You must have your reciept, otherwise we will laugh at you

Feh... Best Buy will laugh at you even if you DO have the reciept. Best Buy's entire business revolves around:

1. Extended warranties. In the event they have to actually back one up, they drag their feet until you either give up, or it expires. The most popular form of foot dragging is "blaming the manufacturer".
2. Rebates. Trust me, I got burned on one because Best Buy is crooked. Only god could help you sort out the fucking mess that is their rebate system. I can only imagine how much cash these clowns rake in by ripping people off on rebates they never intended to give.

Shameless editorial: I don't see what the big deal is about them shooting themselves in the foot on Black Friday deals. Only a masochistic idiot would shop there for anything more valuable than a CD anyhow.

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.

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.

They want to set a precedent...

[MadAnthony02]

Yes, fatwallet did remove the Best Buy and Target postings after getting takedown notices. But the point of countersuing isn't to get the sale notices up again for this year, but rather so that a legal precedent is established for the future. I'm sure next year people will post more info, and Best Buy will sue again... unless a court has decided that they don't have a legal basis for suing because pricing info isn't considered copyright material under the DCMA. The fact is that it has never been tested in court, and FatWallet thinks that they will prevail if it is.

The other thing is that Best Buy also supeoned FatWallet for the names of the people who posted the info. FatWallet didn't give that up because they said there were technical errors with the notices, but I'm sure in the future they want to make sure that people can continue to post in their forums without being sued.

Not Pro Bono, and no hand out

[Chief Mucky Muck]

I can assure you that the legal fees are being paid 100% out of pocket. There is no pro bono representation this year, although we did use pro bono counsel last year.

Many folks on FatWallet have offered financial assistance, but we are not accepting any of it. If the time were to come where additional funds would be required, we would first look to other businesses that would be benefited by the suit, and as a last resort to consumers themselves.

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

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.