Fat Wallet and the Law

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You may be aware of Fat Wallet suing a number of retailers for demanding through provisions of the DMCA that:

  • Fat Wallet remove pricing information on future sales and/or
  • reveal the identities of those who posted such pricing information.

    The most complete information on these legal actions comes from a press release from the lawyers representing Fat Wallet.

    Who Is Going To Win?

    The question is quite simple. Under U.S. law, are sales prices copyrightable? If they are, what these companies did was OK. If they’re not, those companies can’t do this.

    If you read the lawyer’s assertions as linked above, and comments on the issue, you’d think this was a slamdunk. Frankly, I originally thought it was, too.

    But then I started looking.

    Right now, the legal precedent on this issue is found in found in this court decision by the Ninth Circuit Court of Appeals. They ruled that price information is copyrightable, essentially because the determination of a price is enough of an act of creativity and originality to make it copyrightable.

    Don’t argue with me about it; I didn’t say it, a Circuit Court of Appeals did.

    This doesn’t mean it’s a slamdunk the other way, either. Outside of the Ninth Circuit (which essentially consists of California and most of the Western states), a court can decide to follow the court case listed above, or not. In the Ninth Circuit, any lawyer trying this issue will basically have to convince the 9th Circuit that it was wrong in its earlier decision, or that the kind of pricing information from the stores is somehow much different than the pricing calculations made in the earlier court case.

    This is not just a matter of whether Fat Wallet or anybody else can list sales prices in advance in the future, either. Walmart has a DMCA subpoena out for the identity of the Fat Wallet poster who provided their price information in the state of Illinois. If they lose the case (and any appeals), they’re going to have to turn over the name of that poster so that Walmart can sue them (and I suspect they’ll make the RIAA look nice in comparison; it would be a much different kind of lawsuit).

    What’s going to happen? Don’t know, could go either way, but there’s certainly very good reason to think Fat Wallet could lose this one.

    An issue on which Fat Wallet will almost certainly lose is any suit seeking damages for these DMCA subpoenas. To get damages, Fat Wallet would have to prove that the companies knowingly and materially mispresents that the pricing information was a copyright infringement.

    When a court of appeals is on record as saying that such material is infringing, a company saying the same thing is hardly on frivolous grounds, even if a court decides otherwise on the copyright issue.

    Is This The DMCA’s Fault?…

    Is This The DMCA’s Fault?

    No.

    The DMCA has absolutely nothing to do with the issue of whether price information is copyrightable or not. It says nothing on the subject one way or the other.

    Nor does the subpoena provisions of the DMCA have any real impact on the current case. All the DMCA did was provide a quickly cheap subpoena process. It did not enable companies to find out the identity of individuals; it just made it quicker and easier to do so.

    That’s very important to people like the RIAA going after tons of people. It’s not important at all in this particular situation. Walmart would be more than happy to seek a subpoena the old fashioned way through a court to find out the identity of one or a few posters from Fat Wallet, and if the entire DMCA were repealed tomorrow, they could still do so.

    If you’re going to get mad, at least get mad at the right thing. If the courts rule that price information is copyrightable, and you don’t think it should be, the copyright law should be amended to exclude price information from that which is copyrightable.

    Conclusion

    When I began writing this, I thought I was going to say the opposite of what I’ve said. Personally, the way I think it ought to be is that price information shouldn’t be copyrightable, but rather be considered a trade secret. To make a long story short, if stores wanted to keep their prices a secret, they would have to make a real effort to keep them secret.

    However, I’ve learned not to confuse what I think ought to be with what is. After looking more carefully at this, it looks like the law is leaning away from how I think, and it’s what the judges think that matters, not me.

    A lot of people don’t or don’t want to understand that.

    Over the next few weeks or months, some judges are going to decide this matter, not me, not you, not some mob of geeks, and they could well decide against Fat Wallet, and Fat Wallet could be compelled to turn over the names of those pricing posters.

    Or they may not, but Fat Wallet’s case is definitely very shaky.

    In the meantime, unless you want big corporations suing you, it probably would be best not to post advance pricing info until we see what the courts have to say.

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