Retailers Swing DMCA To Stop "Black Friday" Sale Info 792
zoid.com writes "It looks like a few of the big retailers have sent out DMCA notices to a few of the consumer deal sites. So now they are claiming that sale prices are covered under the DMCA. I would like to know what part of the DMCA states that you can not share the price of merchandise. Also, why would they want to stop this free advertising?"
Yet another reason... (Score:3, Insightful)
Too bad they won't fight (Score:5, Insightful)
Why? (Score:5, Insightful)
Why? Because their prices are not competitive of course. In that case it's not advertisement on such a site.
Re:Yet another reason... (Score:4, Insightful)
This is actually good (Score:5, Insightful)
When its something geeky like DeCSS its a little more abstract for customers than 'hey, what can't I find out about the sales?'.
Sometimes things have to hit rock bottom before people do anything about them.
Pure speculation on my part (Score:4, Insightful)
If the prices were published, then I have trouble seeing how it could constitute a violation
Could lead to lost sales... (Score:5, Insightful)
As for how the DMCA relates to this, it's obviously just a way for the companies to make an excuse for delisting their prices. They think that not having the prices public will help them stay out of price wars or other competitive practices, but it's not like this would stop secret shoppers [secretshopper.com] or anything.
which? (Score:3, Insightful)
Re:Pure speculation on my part (Score:3, Insightful)
Re:loss-leaders (Score:3, Insightful)
This isn't a DMCA issue, this is a copyright issue (Score:5, Insightful)
Probably the copyright claim is bogus itself, but it is common practice for the big corporations to use the threat of legal action to make small fries do what they want, even if they know they would lose. And that isn't a DMCA issue either -- that's a problem with the way capitalism leverages the legal system.
I'm not sticking up for the DMCA, but this case is really, ultimately, about something else.
Re:copyright? (Score:1, Insightful)
I don't think Copyright or the DMCA applies. Their lawyers are just trying whatever they can think of to scare people into doing what they want. It's total bullshit. (hard to say really, since I can't read the text of the notice and IANAL)
I very much doubt you can copyright something as short as a price. A price *list* maybe, but if you're only giving excerpts then it's fair use.
Courts wait (Score:4, Insightful)
Till that day happens, of course, it will continue to suck.
You can't copyright facts. (Score:5, Insightful)
The advertising copy from some flyer containing a blurb-type phrase might be copyrightable, but the fact that some store at some address is selling some item for some price is not copyrightable.
Re:Fair use (Score:4, Insightful)
Follow the link in the article. Fat Wallet says they are going to pull the price listings as demanded because they can't afford a legal battle.
"Rights", "fair use" or whatever don't really mean anything if wont be exercised out of fear of a costly legal battle.
-jhon
the system, not just the law (Score:5, Insightful)
While we believe that sale prices are facts and can not be copyrighted, We have made the business decision to comply with the dmca notifications.
Our reasoning for this is very simple - Our mission is to serve consumers - If we were to choose to fight this battle, It would require more resources than are available - and we would no longer be able to serve consumers.
This speaks more to the flaws in the legal system itself than it does to the DMCA. The legal system has esentially become a means of controling people with significantly less money than you. Time and time again, we hear some variant of "we believe we are right, but we don't have the resources to prove it."
The system no longer provides equal protection to all; "justice," as it were, can be purchased. Witness PanIP's [panip.com] attempts [slashdot.org] to bully [slashdot.org] web merchants [slashdot.org], or the OJ Simpson case.
The DMCA is bad; nearly all of us believe so. In the end, however, it is simply one item from the overly-expensive toolchest that is the american legal system. The average American can afford a hammer, but the mega-companies all have power tools. The legal system is designed to see who has the better legal case, but the sad fact is that many cases never actually get to that point; the entry level is simply to high. Joe Blow running his web site from his basement may have the best legal argument in the world for why he should be allowed to print the sale prices of items, but he cannot afford the cadre of lawyers to ensure that that aregument gets heard. Joe Blow might be right, but that doesn't matter; the company that opposes him can simply drag out the legal preceedings long enough to bankrupt him.
Ideally, when something like this happens, the defendant would be able to go before a judge and say "All I'm doing is reporting the facts," and the judge would say "case dismissed." Instead, they go before the judge and say "All I'm doing is reporting the facts," and the claiment says "that's not what my stable of lawyers say..."
The really depressing thing is that, even though I can see the system is broken, I really have no idea what to do about it. The system needs to be reformed, but I'm not entierly sure where to start.
Re:The worst part (Score:3, Insightful)
Re:Copyrighting Prices (Score:5, Insightful)
However, a price sheet may involve some originality in selection, layout, graphics, descriptions, etc... and thus an exact reproduction of this might be infringing.
The interesting DMCA question is whether an access TPM to a copyrighted price sheet could be circumvented if the only thing extracted was the price data. I actually think the DMCA as written says such access IS illegal but that Congress has no Constutitional authority to pass such a law.
Then again, I think the 2nd Circuit's opinion upholding the DMCA was deeply flawed.
Re:Yet another reason... (Score:5, Insightful)
I don't think so; the DMCA is overly broad, but I don't think the DMCA actually applies in this case. The problem with this is the fact that, even though the operators of bigfatwallet.com may be right, they cannot afford to prove it in a court of law. The real problem in this case is not the scope of the DMCA, but the fact that "justice" has a cover charge; if you can't afford the lwayers, you don't get in the door.
Why they want to stop the "advertising" (Score:5, Insightful)
It isn't that these stores aren't competetively priced, as some have suggested, it's simply that the competetive pricing is only a lure - giving all the prices for hot items makes that lure nearly worthless.
Re:The Prices are for Public Consumption (Score:4, Insightful)
Really? So if I own a store that's generally open to the public (glass windows and doors, sign on the door announcing hours, store name, etc) I can walk up and say "Whites only -- leave now" and actually get away with it?
Re:Too bad they won't fight (Score:5, Insightful)
That's how laws like this stay in effect, and it shows a massive flaw in the court system in America. For civil suits, you have a huge advantage if you have money to burn, and enforcing laws like this are only to the corporation's benefit.
Re:This is actually good (Score:3, Insightful)
How FatWallet can fight back (Score:3, Insightful)
What the hell is happening to the USA? (Score:2, Insightful)
Is it just me, or is the number of YRO-type issues increasing? It just seems that over the past few months, more and more of our freedoms are being taken away. It seems to be getting harder to do anything without being hit with the threat of a lawsuit (under the guise of the DMCA or some other law). Corporations seem to have attained, or are very close to attaining, some sort of demi-god or god-like status in the eyes of the government, untouchable by any laws. Politicians left and right, Democrat and Republican, are increasingly coming under the influence of the big dollars that corporations and special interest groups bring. Is it just me, or is our country no longer free? Is it just me, or is our government no more than protectors of corporate interests? Is it just me, or are the efforts of the EFF and other organizations no longer effective? Is it just me, or is it time for more civil disobedience, protests, marches, and the like?
Re:the system, not just the law (Score:3, Insightful)
How often does some uncaring yokel chime in with, "Yeah well, I know [Walmart] is loaded with cash and lawyers, but thats because they worked hard and made all the money, so they deserve an advantage." According to the same mentality, the small fish are just failed mega-coperation wanna-bes (you really do get punished in this society for not wanting to be the _biggest_), so they deserve being at such a disadvantage.
Before we can fix the inequality with respect to access to legal defence, I think you have to get more people understanding that being rich or being poor doesn't neccessarily denote what you contibuted to your society, nor it the world 'just' in this manner. Too often you see people equating success and wealth with deservedness, so in many people's eyes, your complaints arn't a problem at all
Its an attitude that makes me sick to my stomach, but sadly not an uncommon one.
Re:The Prices are for Public Consumption (Score:3, Insightful)
They can ask you to leave any time they want, for any reason.
This is where your argument is flawed, I believe. They can't tell you to leave for just any reason. They can tell you to leave if you're protesting because they can reasonably claim that you are disturbing their customers. They can't tell you to leave simply because you're comparing prices. That's an expected behavior for customers. They can't tell you to leave because you're black. That would not be protected.
Re:Too bad they won't fight (Score:4, Insightful)
I've done it myself. if you have enough money you can make anyone look like a lowlife to the judge and just simply run out the clock.
Re:Make that...Black Saturday (Score:2, Insightful)
Ok...I'm done...sorry.
Re:Yet another reason... (Score:2, Insightful)
Truly sad. I wish someone would make it a requirement that, to hold a law licence, you must do X% of your time as pro bono.
Re:The Wall Street Journal wants to hear from you! (Score:1, Insightful)
Note that he says "crack down", rather than "supress" or "prevent." "Crack down", to me, implies that the consumers are doing something illegal, and the retailers are finally putting their foot down. Of course, nothing could be further from the truth.
Maybe Ron's not aware of his use of the language, or maybe I'm misinterpreting it, but it's just a thought.
Ron, if you're reading this: please, please, please, try to be more careful in the way you describe these things in your work. I really believe that there's way too much journalism that conveys strong innapropriate bias in subtle ways. I'm not sure if you mean to, but try to be aware of it, even if not all of your colleagues are.
What these sites SHOULD DO is Simple (Score:5, Insightful)
Re:Make that...Black Saturday (Score:4, Insightful)
"Jammers"? "Resistance"? "Just one day"? Doesn't that all seem a bit pompous and self-congratulatory for bravely not buying stuff you don't need for a single freaking day?
Why the DMCA is so broad ... (Score:4, Insightful)
Re:the system, not just the law (Score:3, Insightful)
How about a new law or constitutional provision guaranteeing those named as defendants in civil lawsuits to competent, court-appointed attorneys if the defendant cannot afford to pay for legal counsel? In criminal cases, the right to legal counsel regardless of ability to pay for it has been established by the Miranda vs. Arizona case (it's one of the so called Miranda rights: "You have the right to remain silent...")
Granted, it won't be a perfect fix, but I think it would be a start. Court-appointed attorneys usually aren't the most skilled in the nation, but they would certainly be competent enough to defend an individual against a ridiculous lawsuit based primarily on the premise of getting the defendant to agree to a certain course of action because he/she doesn't have the money for lawyers to fight back.
Why shouldn't the same standards regarding due process of law that are used in criminal matters be used in civil matters as well? The consequences of one losing a $250,000 lawsuit (currently allowable under copyright law) can be as least as harmful to one's lifestyle as getting sent to jail for a couple of years for a drug offense. People should have the same basic right to protection from B.S. lawsuits as they do from B.S. criminal convictions.
Re:the system, not just the law (Score:4, Insightful)
I used to subscribe to this worldview; I still hold one form of it. I believe that if a person earns something, they are entitled to it's use.
Unfortunatly, how much you contribute to something, and how much you recieve for your constribution, are now two very different things. I have a friend who wrote a multi-million dollar program, but the company he worked for recieved the vast majority of the profits for his work. This is unfair.
How often does some uncaring yokel chime in with, "Yeah well, I know [Walmart] is loaded with cash and lawyers, but thats because they worked hard and made all the money, so they deserve an advantage."
This is where it gets sticky. I really don't begrudge WalMart the money they have earned. I believe that they have compteted, for the most part, fairly. The fact that other companies or people do not have the resources to compete in the market is not unfair, it's business.
This does not apply, however, to the law. The law is supposed to provide equal protection to everyone. While I do not begrudge WalMart thier money, I do begrudge their ability to mainpulate the legal system with it.
Before we can fix the inequality with respect to access to legal defence, I think you have to get more people understanding that being rich or being poor doesn't neccessarily denote what you contibuted to your society, nor it the world 'just' in this manner.
This is very true. Back when I was a bright-eyed high-schooler, I used to think that the Free Market (TM) magically rewarded the people who deserved to be rewarded. I now know that this is not always the case; in fact, it may very well be more the exception than the rule. In school, they teach you about the American Spirit, self-reliance, and the value of the individual; or at least they used to. But in the real world, it's all about corporate mergers and seeing who can throw the most cash around.
Too often you see people equating success and wealth with deservedness, so in many people's eyes, your complaints arn't a problem at all
That is, in some cases, true, but I am more disturbed by the facts 1. that so few people realize the advantage the rich have in the legal system, and 2. that so few people that do know, care.
Re:Yet another reason... (Score:5, Insightful)
BTW you can collect legal expenses from a losing plaintiff if you can show that his suit was frivolious and malicious.
Re:Buy Nothing Day (Score:4, Insightful)
Re:Yet another reason... (Score:3, Insightful)
In some places, I believe that that is a requierment. It doesn't solve the problem, though; who do you think has more incentive to pur heart, soul, and interns into a case; MegaCorp's well-paid, well-fed, and on-retainer lawyers, or Joe Blow's unpaid, let's-get-this-case-over-with-so- I-can-go-back-to-making-money
lawyer?
Re:the system, not just the law (Score:3, Insightful)
Something needs to be done to level the playing field. I hate to even mutter it, as it smacks of government-overintervention, but I am almost coming to believe that there should be court-appointed attorneys for both sides. This isn't a case of government-vs-civillian, where the government could toss someone away for a few years by giving them intentionally inadequate council, it's a case of civilian-vs-civillian, with the government as a (hopefully) neutral third party. If both sides had to make do with the same resources, then it would be the law that determined the outcome of legal preceedings, not money.
Lawyers? (Score:3, Insightful)
If you want to blame someone, blame the people that hire lawyers. Lawyers simply act within the framework that our legal system has specifically set up for them to follow. Don't blame them because both our politicial and justic system are corrupt, its sure as hell not their fault.
I always have to laugh when people go on about lawyers and yet completely ignore the people that hire them.
Re:Why? (Score:2, Insightful)
Not free advertising (Score:3, Insightful)
Farget(tm) stores sells the My-Little-Flamethrower for $29.95
Ball-mart(tm) sells the My-Little-Flamethrower for $29.99
You see why Ball-mart would not want you to see both of those prices posted on the same site? Imagine further if they were selling it for $31.95, or $34.95. They only want the free advertising if they're the lowest price.
-T
Why would they want to stop it? (Score:2, Insightful)
Well, if their prices are not the lowest, they obviously don't want that to be a well known fact.
Once again, this is just a case of old time, brick and mortar mentality creeping into the global, immediate nature of the internet.
Before the internet was so popular, consumers actually had to get off their fat arses and go to the stores to shop/compare prices/etc. Sure there were newspapers and magazines that made it possible to compare prices, but these can hardly compete with the speed and penetration of the internet.
What happens if everyone knows of a website where they can go to see retailers prices on certain products? They most likely choose to buy from the retailer with the lowest price. That is, unless they have some personal loyalty to a higher priced retailer, or perhaps they had a bad experience from the low price retailer, and won't buy from that particular store.
Obviously, this is bad news for the retailers. I'm sure that they made quite a few sales based on impulse, where the consumer is in the store, looking at the product, and is tired of driving all over town looking for the best price. He's gonna buy at a higher price, right? That's what the retailers are betting on.
Unfortunately for the retailers, the internet is forcing them to rethink their business strategies, and sometimes it's easier for them to bully the little guy than to change their entire strategy.
Quit your bitching and do something! (Score:4, Insightful)
It's a lot easier to say that a law should be abolished than to actually get up and try to abolish it. Hell, even the most recent slashdot poll shows how little you people are really willing to comit to ending this law: 51% of people chose a form of the "No" option, and 31% chose the CowboyNeal option. A relavent state motto comes to mind: "Live free or DIE!" In other words, either do what needs to be done, or suffer the consequences... I have no sympathy for those who don't vote, only to bitch about the current administration, and I don't have any sympathy for those who bitch about laws, yet never take any action to end those laws.
Oh, so this comment won't be *entirely* a -1 Troll, check this link out sometime: http://www.copyright.gov/1201/comment_forms/index
-jokerghost
Live free or DIE!
Re:Yet another reason... (Score:2, Insightful)
Re:Yet another reason... (Score:4, Insightful)
Re:Why? (Score:3, Insightful)
Then, he continues to leaf through. He sees an ad for a DVD he wanted to buy anyway, so he decides to drive down to the BB that afternoon.
When there, he picks up the spindle, grabs the ($24.95) DVD, and on his way out sees a display of Jabra headsets for his phone and throws one in his cart because he thinks they look neat.
This way, Best Buy has controlled his environment.
By the way, Billy Joe forgets to send in his rebate.
On the other side of town, Nerd Geekenstein is cruising the discount sites for the cheapest CDRs. Once he sees that Best Buy has 200 blanks for $0.00 after a $49.99 rebate, he hops onto his moped, scoots over there, grabs them, puts them on his MBNA Mastercard with a $500 limit, scoots home, and promptly fills out the rebate form and sends it in before jumping back on the discount sites to find some cheap RAM near him.
It's an attitude. Different kinds of shoppers consume the advertising that stores put out in different ways. The stores like to control that. The store made $0 off of Nerdboy and made $52 off of Billy Joe.
Re:Yet another reason... (Score:3, Insightful)
When you look at statements of political donations, you always see that lawyers organizations are the top contributors to politicians. Now you know why, and where the money for bad laws comes from: bad laws.
Re:layout copyright extension through DMCA? (Score:4, Insightful)
It is perfectly legal for me to copy an equation out of my favorite physics textbook when writing another book/paper/etc. However, I cannot freely exceprt descriptions/discussions of that equation, as those are an original expression.
To wit, quoting various parts of the DMCA:
Section 103 of the DMCA adds a new chapter 12 to Title 17 of the U.S. Code. New section 1201 implements the obligation to provide adequate and effective protection against circumvention of technological measures used by copyright owners to protect their works.
Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying of a copyrighted work.
Notice how 'copyright' keeps showing up here?
Not a DMCA issue--but will help wreck it! (Score:1, Insightful)
Once again, the DMCA doesn't apply--but of course tell it to the bankruptcy lawyer when they sue you into oblivion!
Disbar Lawyers who send false letters (Score:3, Insightful)
Brain Fade of the Highest Order (Score:5, Insightful)
A mind is a terrible thing to waste..., or what a waste it is to lose ones mind, or something like that.
Grassroots Action Works (Score:4, Insightful)
Stunts get attention. The point of a stunt isn't to 'punish' the stores, but to do something out of the ordinary that will get noticed by the audiences that you want to get your message to.
It's a lot like marketing and guerilla advertising like IBM did with the sidewalk chalking and Microsoft and the butterflies.
The stunts get attention of the 1) customers 2) the media 3) the management. If the media understands the issues they might report it. If the customers understand the issues they might complain. If the management understands they might change the policy.... any pressure from customers and the media might also help management to decide to make a change.
Picket lines of just five people are pathetic. If you hand out fliers, most people will be annoyed and ignore you.
Also, protests can be a lot of work... they should be fun to get people to show up and help you out. Handing out fliers while holding some home-made 'DMCA Sucks' sign isn't fun. Puppet shows are fun. Fake non-disclosure agreements (that are clearly parodies) are fun.
Be creative, not destructive. Educate and inform.
Re:Hip, Hip, Hooray! (Score:3, Insightful)
Corporate CEOs are typically corrupt. Congress is demonstratably stupid. Never assume that they will work to the benefit of the 'little guy'.
Re:Buy Nothing Day (Score:4, Insightful)
The comments about 'maddened consumerism' and 'rampant consumption' are strongly worded and designed to elicit an emotional response - and yet you claim the *retailers* play dirty? Wow.
Seriously. Our economy is dependent on the buying and selling of goods. Or, as a wiser man once said, "You've got to spend money to make money."
Re:Yet another reason... (Score:5, Insightful)
No, it's not. Copyright protection technology and circumvention is only one part of the DMCA -- the one that gets the most coverage on Slashdot, naturally. There are other provisions of the DMCA, such as those dealing with the liability of online service providers for the dissemination of infringing material.
Takedown notices, not the circumvention ban (Score:5, Insightful)
Because the DMCA is about circumventing copyright protection technology, which usually means encryption. Please explain what copyright protection technology the retailers employed on their copyrighted sales prices, and how exactly these web site circumvented it.
The DMCA had two main provisions, a circumvention ban and a takedown notice procedure, with numerous riders. This case invokes section 512(c) [cornell.edu] about takedown notices. If an ISP doesn't respond to a takedown notice, it becomes liable for everything sent over its network.
If this isn't published.... (Score:3, Insightful)
As mentioned, this becomes a "trade secret" argument. At most, they are guilty of receiving trade secrets, and I have no idea what the penalty is for that, if any.
Re:First real world slashdotting (Score:5, Insightful)
To avoid the inevitable /. effect (swamped, plus the inevitable trolls and fringes), how about a reverse /. interview? Let Ron pose the questions, then send him the highest moderated responses. Or just a general thread, then email him the +5 comments.
I think that'd be a better representation of the /. community in that we would be self-selecting our representatives. We don't want to come off as anti-capitalist, pro-communist, p0rn lovers, 3l33t h4k3r5, warez pirates...or, god forbid, goatse.cx fans. (Even if you are one (or more) of those things, it won't help in garnering support agains the DMCA to reveal it to the readership of the WSJ).
Re:Yet another reason... (Score:4, Insightful)
a) Plan a massive sale on Black Friday in order to get customers to spend money at a specific retailer.
b) Spend major $$ advertising the sale.
c) Spend more major $$ on lawyers' fees and litigation costs when online consumer deals sites attempt to advertise the sale AT NO COST TO THE RETAILER. Cite the DMCA as your legal basis, because it's so broad that it must cover *any* type of content litigation, including actions against anyone who gives companies free advertising.
d) Either PROFIT after the Christmas season is over and give everyone a pat on the back, or NO PROFIT and blame 9/11 and those "evil" consumer websites who ruined your sales by giving you free advertising.
A bit of sarcasm in there, but point c) is what worries me. The *only* reason I can possible see for these retail companies wanting to NOT have their sales mentioned on these sites (for free) is that they fear a sales slowdown in the few weeks prior to the Black Monday sales kick-off, due to the large discounts offered then. But a sales slowdown prior to any advertised sales period is the norm in any retail industry, and is always accounted for well ahead of time. So this reason makes no sense.
This tactic sounds like it would benefit the mentioned retailer's *competitors* more than the retailers who are threatening the "offending" websites with legal action. Well, and benefits the lawyers on all sides as well. That said, just *who's* lawyers sent the threats to the consumer websites in order to stop the free advertising?
Land of the Free Home of the Brave... (Score:1, Insightful)
Re:Make that...Black Saturday (Score:3, Insightful)
2) Using the word "resistance" to describe it is self-aggrandizing to the point of obscenity and mocks real sacrifice and courage.
Re:First line says it all... (Score:3, Insightful)
Imagine if the tried this against a major news outlet, they would be laughed at to there face.
"Whats that, your going to try and shut us down for running a story you don't like and not revealling our sorces? hahahaha...Get out."
Re:And Another Reason ... (Score:2, Insightful)