Sweet, Sweet Copyright Law

Black Friday is absolutely right on the copyright law: prices are facts, and if it's the prices they're reprinting and not the sales brochures, they should be okay. I say "should" because there is a sense in which this situation (time-sensitive pricing information) loosely parallels INS v. AP, where one wire service was pillaging another wire service's feeds, and the Court held that there was a property right in breaking news. Copyright scholars generally seem pretty unhappy with that case nowadays, but it's not bad law (yet), so Black Friday probably erred on the side of caution.

The US legal system has been steadily growing out of control for quite a while. Unpredictable verdicts and inaccesibility to nonprofessional counsel are a big part of the reason why. This is only one manifestation of the problem.

Except that the DMCA is a product of the legislative process and not the "US legal system"

It is absurd. Once you get an actual takedown notice, my understandng of the DMCA is that it (17 USC 512) does allow you to explain to the ISP why you believe you're not infringing and the ISP then has to put your site back up unless the copyright owner actually sues you. You also might have a claim against the copyright owner if you think they lied in the takedown notice in order to get your site pulled down.

Of course, all of that is a big pain in the ass, and that's why ominous letters from lawyers get the job done.

Price lists aren't copyrightable, as a general rule. INS v. AP is typically read as creating a very limited "hot news" exception, and it really doesn't allow copyrighting of facts - the value is in the breaking of stories, not the facts.

This is one of a growing list of examples of DMCA abuse. The thing is that the ISP is shielded from liability as long as they take down the material, so they invariably do. So, frivolous claims of copyright infringement have been used to force the removal of criticism, or things like this.

Trade secrets protection, which seems more appropriate here (since those prices are a trade secret until the day of the sale), doesn't provide a quick-acting weapon like the DMCA. Best Buy would have to file for a temporary restraining order, which is way more expensive than a simple take down letter.

Hopefully, Black Friday will be able to sue Best Buy for abusing the DMCA and make Best Buy pay the price. The Electronic Frontier Foundation (http://www.eff.org) might be worth contacting - they've been working on DMCA abuse cases lately.

INS v. AP is typically read as creating a very limited "hot news" exception, and it really doesn't allow copyrighting of facts - the value is in the breaking of stories, not the facts.

Right. My point was that the sales prices, like news stories, have some measure of time-sensitivity, so there's a tenuous argument that INS v. AP has some bearing. You'd have to be kind of a freak to rely on it, but it's the only conceivable angle whatsoever.

Did you know that the DMCA passed in the house by a unanimous voice vote with no debate and in the Senate by a vote of 99 to 0? Yep, that includes senators Biden, Boxer, Byrd, Feingold, Feinstein, Kennedy, Kerry, Leahy, Lieberman, Reid, Rockefeller, Sarbanes and even Wellstone. Bill Clinton signed it into law in 1998.

Government of the corporations, by the corporations, for the corporations.

Right. My point was that the sales prices, like news stories, have some measure of time-sensitivity, so there's a tenuous argument that INS v. AP has some bearing. You'd have to be kind of a freak to rely on it, but it's the only conceivable angle whatsoever.

The thing is that even if you could make a claim under INS v. AP, that's not a copyright claim, which means that the DMCA doesn't apply. This is pure abuse of the DMCA.

I seem to recall there being a protection in copyright law for "trade secrets". Might that extend to upcoming pricing decisions? If I recall correctly one of the requirements was that the business had to have exerted effort to keep the information secret, which would obviously be true in this case.

Oh, whoops - already covered above. My duh.

Except that the DMCA is a product of the legislative process and not the "US legal system"

the DMCA is a product of media company lobbyists. it was written by media corp lawyers and rubber-stamped by a Congress that barely debated it, didn't understand it and didn't care.

so, yes, it's part of the legislative process, but that process is broken.

Matthew-

You don't seem to realize that our American corporate way of life is under attack by satanic anti-corporate Internetters who hate our corporations for their freedom and goodness. Unless we grant all corporations unlimited power to oppose these evildoers, these Consumofascists will surely triumph in their evil ways!

Why do you hate America?

You mean, large rightsholders use C&D letters to intimidate small parties despite an actual weak legal position? Shock of shocks!

You want to fix this, don't look at copyright law. Start allowing ethics sanctions for lawyers who draft C&D letters based on frivolous claims.

They did the same thing last year, Matt. Where were you then?

This year's C&D docs are probably last year's docs with the "5" changed to "6."

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Good comment.Thanks admin.

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