Turkey with a Side of DMCA Abuses

Elizabeth Gonsiorowski, Brooklyn Law School, November 16, 2006

Abstract: After being threatened with a DMCA takedown notice, an online deal site removed Best Buy's prices from their online price list.

Everyone has their own holiday traditions... And a disturbing trend of DMCA abuses related to post-Thanksgiving sales has begun to emerge. Post-Thanksgiving sales prices are valuable (no pun intended). Hardcore bargain hunters may want to do a little research before they decide to line up in front of a retailer in the pre-dawn hours, and sites have developed to bring relevant price information to customers.

In response to posting their sale prices, Best Buy threatened an online deal site with a DMCA takedown notice if they did not remove Best Buy's prices from their site. The deal site noted that they did not believe the prices could be subject to Copyright, but they took down the prices to avoid any possible problems.

Several years ago, in a similar case , Best Buy sent an online deal site a subpoena demanding that they reveal who posted the information about their sale prices. The online deal site refused, and sued Best Buy for DMCA abuses. The case was dismissed on the grounds that the online deal site didn't suffer any harm because of the takedown.

However, the issue is much broader than whether the online deal site suffers harm because of taking down a particular retailer's prices. It is difficult to imagine a situation where prices--raw numbers--are copyrightable. If retailers are truly harmed by online deal sites posting their prices, they should find another way to address the problem, perhaps by keeping better tabs on price circulars in the first place.

Chilling Effects Clearinghouse - www.chillingeffects.org

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