DMCA now being used to ... (1 Viewer)

[David Rogers]

... prevent sharing of retailer information about sale of products.
http://www.fatwallet.com/forums/mess...hreadid=126042
I've never used this website, but they apparently disseminate pricing and product information to consumers who are preparing for purchases. They've been threatened under the Digital Millennium Copyright Act to cease and desist all such activities from four major retailers (WalMart, Target, Best Buy, Staples), who are attempting to use this extremely controversial legislation to thwart consumers.
Just thought HTFers who don't surf the web as widely as others (Slashdot is an amazing resource) might want to be aware of this issue. If retailers are going after online sites for this kind of thing, it stands to reason HTF might be on their hit list. FatWallet.com is apparently talking with the EFF and other rights groups about legal action to defend against this new issue, but no specific news there yet.

 

[Matt Stryker]

They got DVDTalk too. The HTF should be fine in this regard, since posting the prices on DVD is prohibited until the Sunday when the ads come out in papers. At that point, they are public knowledge, so no big deal.

I've been on the wrong end of this kinda thing before with the Online Guitar Archive, and I think that the sites did the right thing. Legally right or not, a small website has nowhere near the legal or monetary power to take on a retailer. Its just a sad fact of life.

 

[Qui-Gon John]

That's outrageous. What about websites that search and tell you the best prices online for a given item, such as shopper.cnet.com ???

 

[Chris S]

That's nuts! The DMCA has got to go! On topic - if they don't want their sales being talked about early then put a stop in the person leaking them to the web sites. Since when does it become everyone elses business to uphold anothers agreement (assuming there are confidentiality agreements at play here). If someone told me something they are not suppose to, what legal obligation do I have to keep it a secret?
Chris S.

 

[Chris_Morris]

That's outrageous. What about websites that search and tell you the best prices online for a given item, such as shopper.cnet.com ???

I believe the retailers problems are with sites that leak sale info before it is public knowledge. There is nothing wrong with what sites like you mentioned do, or HTF posting comparisons on Sunday as the info is public knowledge. But some sites, like DVDTalk.com have had the Black Friday sale prices posted for over a week now and that is information that has not been made public knowledge legally.

Chris

 

[David Lambert]

I believe the following posts by the founder of DVDTalk at his site give the most insight into this situation:
The "cease & desist" order itself from Target
What his feeling are about whether or not early postings of ad prices hurt the retailer involved
DVDTalk's official rules on copyright violations, and how these issues are related
You can bet your socks I am keeping an eagle eye on this situation.

 

[TonyD]

i know it is a shame we can't post prices early but am i supposed to know what DMCA is and what it stands for?

 

[David Lambert]

DMCA - Digital Millenium Copyright Act
Signed into law 10/28/1998.
Essentially, it deals with issues of copyright violations as it pertains to the digital era (computers, CDs, DVDs, etc.). I think I will leave it to the legal-types around here to explain in more detail. I'm not a lawyer, just a used-to-wanna-be.

 

[Patrick Sun]

And people wonder why the HTF has the policy we have on early posting of sales circular pricing.

As much as people complain about it, it comes down to knowing which battles to fight, and which ones to avoid.

Again, please let's just keep the sales circular pricing posted on Sunday at the earliest to help the HTF avoid legal hassles.

Thanks.

P.S. Black Friday prices should be posted on Thursday (11/28/02) at the earliest (since that is when the sales circulars for Black Friday, the Friday after Thanksgiving, will be distributed in newspapers).

 

[Greg_Y]

And people wonder why the HTF has the policy we have on early posting of sales circular pricing.

Patrick, I don't think a smug, "we told you so" attitude is justified here. This is just another way that big corporations screw over consumers, not something to be happy about.

I'm sure you'll find most HTF members, myself included, will comply with the policies set forth, but that doesn't mean we have to like them or that we should blindly accept them as what's best for us as consumers.

 

[dpippel]

An irony here is that most, if not all, of these big retailers have price matching policies that will meet or beat a competitor's sale price *anyway*.

 

[Qui-Gon John]

Sorry, I thought they were targeting web sites that serve as tools to help consumers find the best price.
On a somewhat related note, I read things are moving forward for standardization of collecting sales tax from on-line e-tailers. This move will really hurt the industry. Right now, the tax advantage is one of the main things, along with often lower prices, that offset shipping costs. If e-tailers are forced to charge sales tax I don't think they'll still be able to compete. :frowning:

 

[Patrick Sun]

Greg, after reading countless posts/emails on why we do our best not to allow members to post sales circular information on this particular site, and having many people getting upset at this restriction, at least this turn of events brings home the idea that no one would like to be sued over this issue (and accumulate large legal fees over the "principle" of the issue). Again, some battles need not to be fought when the "positive" outcome is of little value in the long run.

If you don't like the way these corporations are acting, vote with your feet, don't patronize their stores, and tell them the reason you don't shop at their stores. But I doubt that will change their minds in protecting their competitive advantage (in terms of stopping sales circular leaks to the general public).

 

[Malcolm R]

But I doubt that will change their minds in protecting their competitive advantage (in terms of stopping sales circular leaks to the general public).

I still don't understand what "advantage" they think they're gaining in this age of computerized inventory and pricing control. A few seconds and a couple clicks of the mouse and any retail chain can match or beat their competitor's prices. Whether the person making the change in the computer has this info a week ahead of time or on Sunday morning as the sale starts seems rather irrelevant.

But, yes, it's definitely not worth fighting about. If it makes the chain stores feel big and important to threaten a few websites over the issue, then let them enjoy their warm fuzzies.

 

[David Lambert]

As long as we're on the general subject, it's a good time to mention again that I do NOT plan a Roundup of the Black Friday prices, and I never did. I've mentioned it once before, and I'll mention it again this Sunday in the new Roundup just to be sure folks are aware of it.
But, my thing is prices on NEW releases, and Friday 11/29 there are no new releases.
Furthermore, my workplace is MOVING the depot to a whole new building, and the first of 3 fun-filled mandatory work weekends for me is (drumroll please)...the day after Thanksgiving!! So I will be elsewhere... :frowning:
This lack of a Black Friday Roundup has nothing to do with the DMCA thing; it was planned all along. Sorry!

 

[GlenHaag]

I will probably be creating an addition to my Video Game and PC Game Wrapup, but I will not be posting it until Friday at 12:01 central time, so that we can avoid any problems.

I would think that once the ads are run, that we could do it, but I'm going to lean on the safe side and hold off on posting the prices until the day the sales begin.

Glen

 

[Dah-Dee]

I certainly understand the HTF position on complying with the DMCA and dealing with involved companies; were I in their shoes, I'd probably do the same exact thing. As I've seen it said elsewhere in regard to this issue, "it can be expensive to be right." I do, however, have a personal opinion on the conduct of involved companies.
I've examined the DMCA and related documents/articles and and am of the opinion that those companies claiming protection thereunder are absolutely incorrect and possibly acting in bad faith. The information involved here consists of facts, not copyrighted works, and is not protected under the DMCA. Had Congress wished to include such information as protected under the DMCA, it could have. It did not; in fact, the Senate apparently removed House provisions which arguably could have applied here. See below text from a related article:
"X. Database Legislation: The Proposal That Almost Happened
When the House of Representatives passed its version of the DMCA, the bill included Title V, The Collections of Information Antipiracy Act. This provision was the number one legislative priority of online publishers of data and governmental works, because their databases have been vulnerable to copying without compensation. The key legal problem identified by proponents is that under U.S. copyright law, as interpreted by the U.S. Supreme Court, "facts" (such as names, addresses, phone numbers, weather conditions, stock quotes and the like) and "works of the federal government" (including court opinions and government reports) cannot be copyrighted. With the increasing availability of this information online, the concern has developed that publishers will be unlikely to continue to invest in assembling and maintaining information if electronic copiers can snatch the data and republished it without compensation as soon as it is released.
Even though earlier drafts of the proposal had cleared the House of Representatives twice, the title became the centerpiece of controversy. Critics, including commercial publishers who need access to published data in order to create their own databases and libraries and educational interests expressed concern that information would be unreasonably locked away. Despite efforts by Senate staff to amend the House bill, no satisfactory resolution was accomplished. In light of the fact that the Senate did not hold public hearings on the legislation, the conclusion was that database protection should be removed from the DMCA and made a high priority in the 106th Congress.
The key elements of the House-passed version were the following:
Protection afforded for the investment in organizing, assembling and maintaining information.
"Information" includes facts, bits of data and governmental works.
Anyone who assembles a database could sue if its actual market was harmed or potential market could be harmed by third party appropriation. "Harm" would be defined as taking even a few bits of data.
Although the term of protection for a specific database would be fifteen years, if the owner of the database invested significantly to maintain it, the protection could be extended virtually indefinitely.
As the parties negotiated in the closing days of the session, these issues emerged as open and debatable:
What would be the effect of this legislation on fair use of copyrighted works, library preservation and other educational scientific or research uses?
What is a database owner's "potential market" and how is that determined?
What is the appropriate definition of "harm" and what should be the legal impact if one reproduces a limited part of a database?
What does a third party have to do to "transform" the use of data to create a new, legal work?<
What is proper relationship between copyright law and the database proposal?"
The full article excerpted above can be found here:
http://www.arl.org/info/frn/copy/primer.html
As it seems clear to me that facts are not protected under the DMCA, and as it seems clear given the Act's legislative history that companies asserting its protection knew or should have known that facts are not protected by the Act, those companies could not have been making the good-faith assertion to the contrary as required by the Act. Accordingly, I believe that companies making such assertions of protection may be liable to entities such as HTF for damages and attorney's fees. See the Act:
"`(f) MISREPRESENTATIONS- Any person who knowingly materially misrepresents under this section--
`(1) that material or activity is infringing, or
`(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it."
The Act provision cited above was excerpted as found here:
http://thomas.loc.gov/cgi-bin/query...5X6XQBy:e57148:
While I must make clear that my opinion is just that and is not intended to constitute legal advice, I would, if I were an entity such as HTF that might feel aggrieved, seek appropriate legal advice regarding relief pursuant to the DMCA.
It seems clear to me that HTF has engaged in no conduct that would render it liable under the DMCA. If involved companies have any recourse, it would seem to be possibly, if at all, against individual(s) 'leaking' ad info in violation of any corporate policy or confidentiality agreement regarding the same. I do not see any basis for wielding the big stick involved here.

 

[Qui-Gon John]

JDT - Good post, even though a bit too much legalese for me. But your summary, that the retailers really only have a case against those leaking the info, is what i would think as well. If you work for XYC Corp. and you leak info about product development, your company has a legitimate beef against you. But if the person you told, spreads that word around, they have every right to.

 

[TonyD]

any lawers want to take up the cause for htf pro-bono(free)

 

[Chris S]

companies could not have been making the good-faith assertion to the contrary as required by the Act

It is much easier to go after the websites then it would be to find after the true culprits. The websites are out in the open and probably not funded well enough to fight a law suit so therefore more likely to settle. It seems clear to me that these companies are using the DCMA as a scare tactic to intimidate the online community (I really do hate that phrase) into submission. I also find it odd that this has come out just in time for the holiday shopping season. Anyone want to place any bets as to whether things go back to "normal" after Christmas?

Sometimes I wish I was a billionaire so I could fight this kind of junk. Other times I wish I was a billionaire so I could quite me job.

Chris S.