The tendency of companies to use the Digital Millennium Copyright Act (DMCA) as a sword instead of a shield is starting to become more and more prevalent. Take, for example, the recent battles between Fat Wallet.com and a number of retail stores including Wal-Mart. Fat Wallet is one of many websites that specialize in listing off great deals on various products at various stores. They don’t actually sell anything themselves, but they do spread the word and a lot of people, such as yours truly, make heavy use of these sites to get the most bang for our bucks. To give you a sense of how useful these sites can be to the bargain conscious consumer consider a previous blog entry I made about my purchase of a TDK VeloCD CD-RW drive. That particular drive has a MSRP of $189. Thanks to a listing at TechDeals.net I got the same drive from CompUSA for $89 with a $50 mail-in rebate making my final price a nice $45 after tax. Cheapest I can find that same drive on Pricegrabber several months later is $88.98 and that’s for one that the box has been previously opened.
So, as you can see, these deal websites can be very useful for the savvy consumer. Fat Wallet.com lists deals on all sorts of products, not just tech items, as well as links to online rebates and coupons. Combine a few of these together and you can come up with some hella deals especially on the day after Thanksgiving (known to retailers as Black Friday). The trouble started when Fat Wallet.com and several other bargain hunting websites listed a butt-load of Black Friday sale prices on their website two weeks before they were actually due to be released as circulars. Wal-Mart and several other retailers slapped these sites with threats of DMCA lawsuits if they didn’t remove the info pronto on the argument that the postings constituted copyright infringement. The problem with that is you can’t copyright facts.
Mike Godwin, staff counsel for the Center for Democracy and Technology, said long-established copyright law does not prohibit a Web site from posting established facts.
“It’s the expression of information that’s protected and not the information itself, so a price alone would probably not be considered a [copyrightable] work,” Godwin said.
Williams noted that all of the Web sites contacted by Wal-Mart took down the disputed postings.—Brian Krebs, Washington Post.com
Wal-Mart couldn’t leave it at that, however, and they demanded that Fat Wallet.com release information on the user who posted said information to their message forums. That may have been a mistake as it made Fat Wallet decide to take a stand on the issue.
Today, FatWallet sent each retailer a letter contesting its frivolous copyright assertion and demanding payment, under Section 512(f) of the DMCA, for all damages, including costs and attorneys’ fees, incurred by FatWallet in addressing the knowing and material misrepresentations of copyright protection. According to Megan E. Gray, “As the retailers well know, simple sales prices are not protected by copyright. Copyright only covers the expression of ideas, not facts.” Deirdre K. Mulligan noted, “This is an example of corporations using allegations of copyright infringement to silence speech.”
Tim Storm, of FatWallet, said, “Wal-Mart’s subpoena gave us no choice but to fight back. Unless a court rules otherwise, we’re not going to give up personal information about our users when the underlying copyright claim is baseless.”
As of yesterday Wal-Mart caved in and withdrew their subpoena. The folks at Fat Wallet.com are considering this to be a victory, which in a small way it is, but that doesn’t alter the fact that Wal-Mart and the other retailers still got what they wanted, the removal of the sales price information, with little more than the threat of a lawsuit. Even assuming that Fat Wallet presses ahead with forcing these retailers to pay up under the DMCA provision that they’ve cited it still leaves one to wonder if that’ll prevent retailers from pulling this same stunt again in the future.
Just one more example on why the DMCA is bad legislation that needs to be abandoned.