Facts Cant be Litigated Away

Commentary: DMCA was never meant to block sale price lists, but retailers are trying to use it to stop the free flow of information

In the latest thrilling installment of As the Digital Millennium Copyright Act Turns, various large retailers attempted last week to force various bargain-hunting-oriented Web sites to remove "Black Friday" sale price information from their pages.

For instance, I understand that if I show up at Walmart first thing Friday morning, Ill be able to pick up a 30-quart turkey fryer for $29.97—a day too late, sure, but Id be all set for Thanksgiving 2003.

If you arent familiar with the term "Black Friday" (I had to look it up), the term refers to the day after Thanksgiving, when a huge flurry of Christmas shopping shifts retailers out of deficits and into the black. As a result, Black Friday is a big deal for retailers, and these firms were none too pleased when their secret sale prices made their way onto sites such as FatWallet.com more than a week before the big day.

Its fair to ask here what any of this has to do with the DMCA, a piece of legislation intended to protect copyrighted materials in the electronic world. The answer is that the DMCA has almost nothing to do with any of this. Sale prices, whether officially circulated in your bloated Sunday paper or leaked by someone who works for the store that sets them, are facts, and facts are not subject to copyright—no matter how distressing or inconvenient this may be for the firms involved.

I say that the DMCA has almost nothing to do with this, because it was the DMCA that attorneys in the employ of Walmart, Target, et al brandished to threaten FatWallet and others, and it was the specter of the DMCA did the trick, at least it did with FatWallet. (Of course, you cant un-ring a bell, and this information is available on various other sites. I found mine here.

Its not that Im set to march on Washington to battle for our rights to advance price lists—Id bet that a relatively tiny group of shoppers even seek out and utilize such lists, anyway.

What troubles me is that the DMCA has become a sort of "Dune" killing word for the online world. Site operators are familiar with the DMCA, and they know that other sites have been forced to remove materials as a result of the DMCA.

Corporations are demanding and, with the help of laws like the DMCA, are enjoying a degree of control over information, both copyrighted and non-copyrightable, that they have no right to expect or enjoy.

A Wal-Mart spokesperson, quoted in the Buffalo News, offered a telling summary of the situation: "There were some sites that had information that belonged to Wal-Mart that was not released by Wal-Mart. We didnt think that was correct, and we notified those sites."

Were not talking about bootleg copies of Windows XP or pirated copies of "The Little Mermaid" here, were talking about facts. If eWEEK publishes a story scooping WidgetTechs plans to lay off thousands of its employees, no copyright act would empower WidgetTech to bully those facts from our site.

If WidgetTech were to pursue a claim, we might, however, have to mount a defense to keep the information available. Even in such a frivolous matter, legal defense is awfully costly. For FatWallet, the prospect was deemed too costly to offer any resistance.

In a free and open society, occasional inconveniences—like when Target has its customers and competitors find out too early that, come Nov. 29, Hot Wheels vehicles will be on sale for 49 cents apiece—is one of the prices we pay for maintaining our freedom.

Were now in a public comment period in which we may tell the U.S. Copyright Office what we think about the "anticircumvention" section of the DMCA. This relates not to quashing information posted on the Web, but rather to limits on our ability to bypass copy-protection mechanisms in order to exercise fair use rights. Still, its an opportunity for us all to have a say in how were governed in the digital world.

Read up on the DMCA—I suggest the Electronic Frontier Foundation as a start, and head over here to make yourself heard. Get cracking, because comments are due by Dec. 18.

Want to come over for deep-fried turkey next year? RSVP at jason_brooks@ziffdavis.com.