This Is A Trade Secret?. . .

A Novel Use of DMCA

Best Buy, Staples, Target and Walmart have sent “get our Black Friday sales information off your website or else” notices to a number of deal sites:

Copy of DMCA Notice to site (second post)

Fat Wallet announcement (and thread)

Infoworld article

Wired article

Slashdot item (and thread)

Slashdot item (and thread)

Lawyers Getting Frisky

I’m seeing a lot of people denouncing the U.S. government or saying that this is a government run by corporations, etc., etc and citing this as proof.

This is nonsense. The last thing in the world those who wrote or voted for DMCA had in mind was to protect sales information in store circulars

Rather, these are corporate lawyers bluffing, not entirely, but a lot.

These lawyers are trying to execute a one-two legal punch, and neither punch by itself is a killer. The combo is a bit of a problem, though.

Punch Number One: Copyright

The notice places like Fat Wallet received is used when a website posts material that infringes copyright and only copyright, not any other type of intellectual property (we’ll explain this more later).

A website doesn’t have to follow it, but if they don’t, then they also become liable for copyright infringement.

So if a place contained a post with a scan or other virtual duplicate of the material, the stores are well within their rights to do this.

However, generally speaking, copyright is the protection of the expression of an idea, not the idea itself. The ad may be copyrightable, but the information inside it isn’t.

In other words, a scan is a thing, a price list is another. Using the DMCA notice to try to block price information rather than a copy of an actual ad is a legal bluff.

Punch Number Two: Trade Secrets

People hear a lot about copyrights and patents and trademarks. They rarely hear about the other means of intellectual property protection: trade secrets.

The best known example of a trade secret is the recipe for making Coca Cola.

As this handy little description states:

“Trade secrets are very different from patents, copyrights and trademarks. While patents and copyrights require you to disclose your information in the application process (information that eventually becomes public), trade secrets require you to actively keep the information secret.”

Trade secrets are also different than patents, etc., etc.. because they are governed by state, not federal law.

Price information can be a trade secret.

However, for a trade secret to be considered a trade secret, a company has to make a real effort to keep the information secret. If they don’t, then it’s not a secret anymore.

If, for instance, somebody who works in the section of corporate headquarters that sets prices and who has signed a nondisclosure agreement with the company about this leaks this to an outside party, such an action would be a violation of trade secret laws, and depending on the state laws, at least somebody’s in trouble.

On the other hand, if somebody gets the ads section of the Sunday paper (which is shipped to newspaper sellers days ahead of the rest of the paper) ahead of time, arguing that the prices in those printed ads remain trade secrets is a pretty dubious one.

Unless the stores made the newspaper made all the newspaper sellers sign nondisclosure agreements saying they couldn’t sell or otherwise distribute the ads before Sunday, that would be a pretty tough legal case to sell.

The Extralegal Realities

To summarize:

The corporate lawyers are trying to pretend that a DMCA notice which only applies to one kind of price disclosure applies to all of them.

If someone stands up to them on that, then they have a second argument ready, which may or may not be too good depending on when and how the price revealer got the price information.

The real argument these lawyers are presenting these websites has nothing to do with law, though. That argument is: “We have money and you don’t.”

And until a place gets the backing to say, “Bring it on,” places that do this are going to fold.

What Should Be Done

This is a legal issue. What you should do is send money to those who would back up a website that will stand up to these bluffs.

I would suggest that those websites that heavily deal with this advance information contact organizations like the Electronic Frontier Foundation to see if they’d be willing to back up a test case. I suppose you could write them too about it.

But money doesn’t grow on trees for EFF, either. You don’t want to see this kind of legal intimidation, put up or shut up.

Of course, this is like asking a turd to trot. As one forum poster aptly put it, “All of us will talk, but none will stand behind it.”

No, we’ll just get oceans of whines and a thimbleful of action. Money talks, bulls**t walks, and this is a community of verbal diarrheics.

When are you going to learn? When are you going to learn, as Benjamin Franklin once said, that “we must all hang together, or assuredly we shall all hang separately.”

When are you ever going to learn?


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