DMCA hates deals!

November 21, 2002 6:33 AM

Black Friday. The meaning of which brings either joy, bewilderment or disgust. Several retailers have sent DMCA notices to several deal hunting sites forcing them to remove any ads or information that reveal any specials that will be offered. WTF!? What other inane uses will the DMCA be used for?
posted by the biscuit man (17 comments total)

The wired news link about this. Pesonally, I am not against the intent of the DMCA. Its the outcome of the DMCA that ticks me off...From people getting in trouble for typing up some code to this, it seems like the DMCA somwhow covers everything on the Internet that a big company doesn't like (you put something on the Internet we don't like, it must be illegal!!!). I also have a really hard time understanding how this suit would be ruled in favor if big Co's in court (if it goes that far), but with the track record of the DMCA being held up, anything's possible.
posted by jmd82 at 7:24 AM on November 21, 2002

The information provided is incomplete. How the DMCA is invoked here is not explained. Invoking other provisions in Title 17 also seem to be a reach. If the sites are just posting prices I cannot see where the copyright comes in. Prices alone do not satisfy the originality requirement of the Act or case law. Besides the fact that the merger doctrine would probably apply since there is only one way to express a price. It seems to me that the better claim would have something to do with trade secrets. In a nutshell, the retailers could show that the people running the sites knew or should have known that the information was purloined.
posted by anathema at 7:46 AM on November 21, 2002

Here is another recent interesting copyright issue. Can lawyers claim copyright protection for complaints they file in court?
posted by anathema at 7:51 AM on November 21, 2002

Okay, the Fatwallet site sheds a bit of light on where the Safe Harbor provisions come in. But if the underlying material is not copyrightable in the first place.....
posted by anathema at 7:56 AM on November 21, 2002

Don't mean to derail, but what are Black Friday sales?
posted by picea at 8:04 AM on November 21, 2002

I poked around those sites and came across the text of the letter from Wal-Mart's lawyers to one of the site owners. Apparently, they are claiming copyright on the advertising circular these pricing information came from:

It has come to our attention that someone has posted a copy of our client's Thanksgiving Circular on your website before Wal-Mart has released the Circular. Publication of the Circular is an infringement of Wal-Mart's intellectual property rights.

which does make sense. It's a bit of a stretch from a layman's perspective, since the posts I saw were only listing information from the circular, not the circular itself, but I can imagine how from a legal standpoint Wal-Mart's proceeding. It also cites the specific part of the DCMA they believe covers the infringement:

Assuming without admitting that your company qualifies for the Safe Harbor provided by the Digital Millennium Copyright Act, 17 U.S.C. § 512(c) ("DMCA"), we are providing you with statutory notice of the infringement occurring on your website and requesting that you disable access to or remove all infringing materials, threads and posts.

posted by JollyWanker at 8:05 AM on November 21, 2002

Read the first link, picea.
posted by anathema at 8:05 AM on November 21, 2002

D'oh. Pardon my blindness.
posted by picea at 8:13 AM on November 21, 2002

It's an entirely different discussion if they are posting a scanned image of the circular.
posted by anathema at 8:28 AM on November 21, 2002

Yea for big business!

Yea for stagnation!

Yea for censorship!

Yea for the end of free speech!

Yea!
posted by eas98 at 8:56 AM on November 21, 2002

Perhaps one of the most mixed-up components of the DMCA is the presumption of guilt before trial. The one being served must assume the content in question is illegal before any trial has been conducted. Thus, a chilling of speech occurs because few people can go to trial against the likes of Wal-Mart or Target and their trial lawyers.

I have no doubt that should such a case go forward in court the judge would toss it out as a frivolous and unjustified suit. But it won't even get that far.

Suits like this were anticipated by opponents of the DMCA when it was debated. Backers stated the DMCA would not be used as a cudgel, but it sure seems to me to be.

Perhaps reform of the judicial process would help in cases like this.
posted by infowar at 9:12 AM on November 21, 2002

I think reforming the legislative process is what really needs to happen. The courts are the ones that have to clean up the legislators mess. When it's even possible.
posted by anathema at 9:25 AM on November 21, 2002

I should think the price lists are considered a "trade secret." Are trade secrets protected once leaked?
posted by five fresh fish at 9:57 AM on November 21, 2002

It usually depends whether or not the party who ends up with the secret knew or should have known that it was obtained fraudulently. Obviously, this is an extreme abbreviation. There are often many factors involved in trade secret cases.
posted by anathema at 10:15 AM on November 21, 2002

The DMCA is being used in ways not initially advertised?
To supress electronic communication?
I'm shocked! Shocked!
posted by Fezboy! at 11:04 AM on November 21, 2002

So what's new about this?

It's legal posturing. The lawyer's for WalMart know they would never win in court - Feist v. Rural (1991) in the Supreme Court specifically rules that data or lists of data is not copyrightable; that is, "intellectual labor" must go into an item for it be considered copyrightable. That specific case dealt with a little phone book suing a big phone book because the statewide, big phone book had used the data that the little book compiled. The SC said that the local phone book could no copyright data.

It is effective, though, for a company to stop something they dont' want with legal threats - perhaps there should be some way to make a company pay for using tactics like these legal threats, but I don't know what would work.
posted by Kevs at 2:15 PM on November 21, 2002

Feist did not rule out copyright for facts which are organized in an original manner. In Feist, Justice O'Connor talks about how an alphabetical arangement for a phone directory does not contain the requisite originality. But it is still open as to where the originality line is. I think it's important not to confuse "intellectual labor" with "sweat of the brow" labor. Feist rejects the notion that copyright has anything at all to do with money, energy or time spent in creating something.
posted by anathema at 7:23 PM on November 21, 2002