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| Chilling Effects Clearinghouse > Trade Secret > Weather Reports > Black Friday Ads: the Prequel | 
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|  Black Friday Ads: the PrequelWendy Seltzer, October 22, 2007 Abstract: If it's fall, these must be cease-and-desists for Black Friday ads. This year, they seem to be coming earlier than ever, as Wal-Mart sends pre-notifications against future posting. For many years, major retailers have complained about the online posting of their post-Thanksgiving sale prices, generally protesting the previews that appear online even before the circulars hit the papers. The so-called "Black Friday" sales, on the day after Thanksgiving, often feature deep discounts and limited quantities of "hot" items, so bargain-hunters like scoping out the deals online. Major retailers say they'd prefer people found the sales the old-fashioned way, in the newspaper or perhaps on the stores' own websites. In past years, Wal-Mart, Target, Best Buy, Linens 'N Things, and Staples, have all fired off complaints. See Black Friday In the past, they've used copyright claims, which fit poorly with the posting of price compilations. Copyright doesn't protect facts or ideas, only original expression. Yet the stores were trying to squelch pre-announcement of facts: the prices they intended to affix to items, not any expressive element of the circulars' graphic design or its arrangement of items. Copyright claims probably looked attractive because they pull in the DMCA notice-and-takedown procedure, giving reason for the service provider to disable customers' sites. See Chilling Effects' collection: Bargain Shoppers Chilled by Retailers' DMCA Threats. This year, Wal-Mart has taken action even before the Halloween pumpkins are carved, sending pre-notifications to websites that have posted Black Friday ads in the past. For example, Wal-Mart Pre-Warns Against Early Black Friday Ads. Why the pre-notification? Does Wal-Mart just want to add a bit of chill to the unseasonably warm fall? Does the retailer want sites to pre-screen user-posted content? Do the notices have any legal effect? If Wal-Mart is relying on copyright claims, the notices are nearly pointless. Warning doesn't make facts copyrightable, while if users are posting material, a site doesn't incur obligation to monitor merely because someone warns that infringement is likely. Availing themselves of the DMCA safe harbor, sites can allow users to contribute material unfiltered, reviewing and removing only if copyright holders notify them of existing -- not hypothetical future -- infringements. If the site-owners themselves do the posting, they might be warned off by the assertion if they credit claims of copyright in facts, but their underlying liability would turn on whether they copied copyrightable expression, not whether they ignored a warning. But this time Wal-Mart's claims appear to be broader, invoking the "confidential and proprietary" nature of their "commercially valuable" price information. Trade secret law proscribes "misappropriation" of commercially valuable secrets, provided the holder has taken reasonable steps to keep the secret. Most trade secret cases are against those who directly steal a secret or break a confidentiality agreement, but many states, guided by the Uniform Trade Secrecy Act, define misappropriation broadly, to include
By pre-notifying sites, Wal-Mart is likely trying to establish the "knew or had reason to know" element of a misappropriation claim, to say that even if the sites themselves engage in no "improper means," they should anticipate that anyone sending in Black Friday preview ads must have acted "improperly." Wal-Mart would have to establish that its price lists were properly trade secrets -- economically valuable because of their secrecy, subject to reasonable measures to preserve their secrecy -- and that any who posted after receiving its warning knew or should have known they were misappropriated. Notification can't create secrets if Wal-Mart doesn't take other reasonable measures to keep the prices from leaking, but if it takes those measures, through confidentiality agreements and need-to-know limits on those who get early access, yet economically valuable secrets leak anyhow, advance warnings to third parties might turn innocent receipt into misappropriation. As any lawyer will tell you, much will depend on the particular facts! Meanwhile, as Reuters reports, many of the consumer sites are encouraging their readers to contact Wal-Mart to ask for a change in policy.
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