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‘Prices are trade secrets’ – stores unite to make DMCA look stupid

Oh? What, you mean they're serious?

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Four major US retailers have thrown their weight behind the anti-DMCA campaign by making it look ridiculous. The bargain hunter site FatWallet.com has been given notices under the Digital Millenium Copyright Act by WalMart, Target, Best Buy and Staples claiming that their sale prices are copyright trade secrets.

Aren't lawyers clever, people? Who'd have thought a price list could be copyright? But they're an arrangement of facts, a particular arrangement, so maybe they're art, good heavens. Not that it matters much in this case whether or not the clever lawyers have a case, because FatWallet has complied with the notices, at least for now.

FatWallet gets under their skins because its forum members swap information about sales in stores, current and forthcoming, the idea being for them to know where to go, when, and how to get the best deals. So for example you might be able to go to Staples and pick up a hard drive, CDRW, scanner, pile of RAM, and a pair of webcams for just a couple of dollars, plus coupons.

No, we've no idea why that just popped into our heads just now.

Some of the information might come from insiders, but given the nature of the business they wouldn't have to be particularly deep inside; stores mounting sales have to produce ad copy, print leaflets, and so on, so there's a pretty big pool of people in the know.

In a posting explaining the issue, FatWallet says that while it believes "that sale prices are facts and can not be copyrighted, We have made the business decision to comply with the DMCA notifications.

"Our reasoning for this is very simple - Our mission is to serve consumers - If we were to choose to fight this battle, It would require more resources than are available - and we would no longer be able to serve consumers."

And the next bit is significant, because it shows how the outfits that can afford the lawyers can force their victims to comply with their wishes, no matter how flimsy their legal justification:

"Part of the DMCA Safe Harbor provisions state that in order to qualify for safe harbor protection, we must have no knowledge of the infringing activity. If we become aware of the removed content being reposted on our site, We have no choice but to remove the content, or forfeit our safe harbor provision. I respectfully ask your cooperation on this matter."

FatWallet is still providing sales information, but not, obviously, the infringing stuff. It has contacted the Electronic Frontier Foundation and ChillingEffects.org (which runs a clearing house of 'cease and desists', and no doubt they will be taking the matter up. ®

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