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| Chilling Effects Clearinghouse > Weather Reports > Bargain Shoppers Chilled by Retailers' DMCA Threats | 
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|  Bargain Shoppers Chilled by Retailers' DMCA ThreatsEddan Katz, Chilling Effects Clearinghouse, November 22, 2002 Abstract: As the holiday season approaches, bargain shoppers not only have to deal with getting through their gift lists and waiting in store lines, but this year they will also have to contend with the chilling effects of the Digital Millennium Copyright Act (DMCA). When major retail stores including Wal-Mart, Target, Best Buy, Staples, and Office Max learned that content from their upcoming "black Friday" sales circulars was being posted on the Web, they sent their lawyers to get the information taken down. As the holiday season approaches, bargain shoppers not only have to deal with getting through their gift lists and waiting in store lines, but this year they will also have to contend with the chilling effects of the Digital Millennium Copyright Act (DMCA) takedown procedure. When major retail stores including Wal-Mart, Target, Best Buy, Staples, and Office Max learned that the content from their upcoming sales circulars were being posted on the Web, they sent their lawyers to get the information taken down. These corporations claim not to have authorized the release of their advertisements for what is known in the retail industry as "Black Friday," the big shopping day after Thanksgiving when stores expect to increase their profits at the end of the year. Bargain shopping web sites with online forum discussions such as Fatwallet.com and DealExpert.net received DMCA 512 notices with threats of legal action if they did not remove the postings containing these price lists on their web sites. The cease and desist letters also requested the names, contact information, and IP addresses of the anonymous users who posted the information. Faced with the prospect of expensive litigation simultaneously with five of the largest retailers in the country, the web site owners removed those postings claimed to infringe the retailers' copyrights in order to comply with the requirements of the safe harbor provision in section 512 of the DMCA, which grants web sites immunity from liability for the infringing activities of their users. While the Safe Harbor provisions of the DMCA also provide a mechanism for web site users to get their information put back up on the Web if they allege it does not in fact infringe copyright, the procedure takes at least 10 days, by which time the "Black Friday" sales will have already ended. The intimidation of a legal onslaught led FatWallet owner Tim Storm with little choice but to follow these procedures, even though he was suspicious as to whether or not such postings were actually infringing. In order to encourage "others to build freely upon the ideas and information conveyed by a work," the U.S. Supreme Court in the seminal Feist v. Rural case clarified that facts such as a list of people's names and numbers in the White Pages are not granted copyright protection. The same Court did note, however, that if the information copied also contains some special collection or arrangement, it may be granted "thin" copyright protection as a compilation. Even so, reposting the information might fall under the fair use exception in copyright law, and would require a court to consider four factors in making a determination: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for the work. The retailers have also reportedly claimed that the postings on FatWallet and DealExpert are a misappropriation of their trade secrets of the "Black Friday" sale prices. Such a claim would be irrelevant to the DMCA 512 notice and takedown procedure though, since the Section 512 procedure is expressly reserved for instances of copyright infringement by Internet users. A separate trade secret complaint would have to be brought against those who disclosed the information, if it qualified as a trade secret. In that case, the retailers would have the burden of proving that the "Black Friday" circulars were identified as trade secrets and that the information was acquired by improper means, such as theft, espionage, or a breach of a duty to maintain secrecy. The controversial legal questions presented by the FatWallet and DealExpert postings ought normally be decided by a court, but the pressure on web site owners to avoid liability for everything their users post on their web sites have forced them to back down to avoid the risk of litigation. The unintended consequence of the DMCA safe harbor provisions is that online speech may be dictated by the caution of web site owners. This "Black Friday," those users eager to get a head start on their bargain research were so surprised by their favorite retail stores' attempt to silence them that they have planned a boycott of those stores. As for the weather this holiday shopping season, the chill of the DMCA continues to spread.
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