Deal site BlackFriday.info yesterday removed the Best Buy "Black Friday" sales price list after the big box retailer threatened to deliver a DMCA takedown notice to Black Friday’s ISP. In a brief posting, Black Friday said, "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."
In recent years, information on the post-Thanksgiving sales has become a highly prized commodity, with a number of sites featuring copies of major retailers’ ads. Consumers looking for the best prices and wanting to streamline their shopping are responsible for the sites’ popularity.
Deal sites such as BlackFriday and Fat Wallet are a source of irritation to retailers at this time of year, although DMCA takedown notices tend to be the exception rather than the rule. In November 2003, Best Buy issued a takedown notices to FatWallet over a Black Friday ad posted on the site. FatWallet responded by suing Best Buy for abuse of the DMCA. Such lawsuits are permissible under the DMCA if a company knowingly misrepresents a DMCA notice. FatWallet’s case was dismissed with the judge ruling that the bargain-hunting site had not suffered injury because of the takedown notice.
By issuing DMCA takedown notices, Best Buy is alleging that its sale prices are copyrighted information and that posting the information before it is publicly released constitutes copyright infringement. While companies may be able to argue that disclosing sale prices weeks ahead of time can cause them harm, it doesn’t necessarily follow that a list of products and prices is copyrightable.
Best Buy and other retailers that churn out takedown notices are misusing the DMCA, but the larger problem is the law itself. The powers granted by the DMCA are broad enough that it is tempting for companies to wield the law as a bludgeon against whomever is displeasing them. Until the law is changed, companies will continue giving into the temptation to misapply it.