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Faced with demands by national retailers under the Digital Millennium Copyright Act to remove Thanksgiving sales information from its web site for the second year in a row, FatWallet, Inc. filed a lawsuit yesterday in the United States District Court for the Northern District of Illinois seeking a declaration that these demands constitute an abuse of the DMCA and violate the First Amendment rights of both FatWallet and its users (FatWallet, Inc. v. Best Buy Enterprise Services, Inc., et al., Case No. 03C50508).
The lawsuit was a response to "takedown" notices received by FatWallet over the last few weeks from Best Buy, Kohl's Department Stores, and Target Corporation, each of whom demanded that FatWallet remove from its web site user postings containing Thanksgiving sales price information on the grounds that the information was protected by copyright. Best Buy took things a step further, sending FatWallet a subpoena requesting that it identify the person who posted the information. Because the subpoena was not properly served and suffered from other procedural defects, FatWallet notified Best Buy that it would not identify the poster. Shortly before Thanksgiving 2002, FatWallet received a similar subpoena from Wal-Mart Stores, Inc., as well as takedown notices from retailers including Best Buy, Target, K-Mart, Inc., and Jo-Ann Stores.
"The posting on a web site of sales price information is not the proper subject of a subpoena or a takedown notice under the DMCA. Hopefully, by filing this lawsuit, FatWallet will be able to put an end to this repeated misuse of the DMCA's special subpoena and notice provisions and ensure that its First Amendment rights, and the First Amendment rights of its users, are fully protected," said Rachel Matteo-Boehm, an attorney with Steinhart & Falconer LLP, one of the law firms representing FatWallet in the suit.
"Our users should be able to freely post and discuss factual information, like sales prices, without being sued or accused of copyright infringement, and we hope that by filing this lawsuit, we will be protecting these important consumer rights," said Tim Storm, FatWallet's founder and President.
