For some reason, the day after Thanksgiving has become known as a day of shopping. Retailers, eager to start off the holiday shopping season, tout low-low prices on "Black Friday" to get consumers into the store.
Prior to Thanksgiving, these prices are (in theory) supposed to be a secret, but on the Internet it is common to see sites like BlackFriday.info and FatWallet post Black Friday prices up to a month in advance. In response, retailers have invented their own holiday tradition: targeting these sites with takedown notices under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. sec. 512.
Best Buy started off the holiday cheer this month by sending a cease-and-desist letter to BlackFriday.info, demanding that it take down Best Buy's upcoming sales prices. BlackFriday complied under protest, noting in a brief statement: "While we believe that sale prices are facts and not copyrightable, we do not want to risk having this website shut down due to a DMCA take down notice."
The DMCA provides an easy way for companies to get information taken off the Internet. When an Internet service provider receives a DMCA notice of claimed infringement, it must act "expeditiously" to remove the allegedly infringing content in order to shield itself from any claim of vicarious liability for infringement. Even though there is a serious question whether ISPs would be vicariously liable for their customer's actions in the first place, providers that receive hundreds or thousands of these notices have have no desire to take the risk. As a result, ISPs typically comply with takedown notices as a matter of course.
Retailers have been issuing these notices against sites listing their sales prices for several years, but no court has yet examined the validity of these claims. After Best Buy issued a DMCA takedown notice to FatWallet in 2003, FatWallet sued under section 512(f) of the DMCA, which allows recovery, including attorneys' fees, for a "knowing misrepresentation" under the DMCA. The U.S. District Court for the Northern District of Illinois dismissed that case, however, holding that FatWallet had not suffered any injury from the notice. FatWallet v. Best Buy, No. 03-50508, 2004 WL 793548 (N.D. Ill. Apr. 12, 2004).
Because the DMCA covers only claims of copyright infringement, retailers who send DMCA takedown notices are necessarily asserting that posting their sales prices infringes their copyright in the prices. This view seems unsupportable because, as the Supreme Court has recognized, facts are not subject to copyright protection. In Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), the Court rejected a claim by a telephone company against a competitor who had copied names and phone numbers from the phone company's telephone book. The Court noted that, to be copyrightable, a work must be original, in the sense that it must possess at least some minimal degree of creativity. A compilation of facts like names and phone numbers does not meet this basic requirement.
Although the Court noted that it "may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation," it held that the requirement of creativity is a constitutionally required component of the copyright scheme. Copyright is designed "to promote the Progress of Science and useful Arts," and thus "encourages others to build freely upon the ideas and information conveyed by a work." Thus, copyright law protects only expression, not the facts or ideas contained within that expression.
This distinction also has a First
Amendment component. As the Court recently noted in Eldred v. Ashcroft, 537 U.S. 186 (2003), copyright's dichotomy of expression, which is protectable, and
ideas, which are not, is essential to avoid impinging on the free
exchange of information. And in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976),
Supreme Court specifically recognized the free speech interests in
distributing pricing information. In striking down a law that
prohibited the posting of pharmaceutical prices, the Court noted that
distribution of the prices would also suppress competition,
and that consumers would ultimately suffer from restrictions on this
As long as they can get away with it, however, retailers are likely to keep making these c laims. In the meantime, for those of you who, like me, prefer to shun the malls on Black Friday, consider adopting Buy Nothing Day as your own family tradition.