Wal-Mart threatens legal action if Black Friday ad is posted early
10-19-07, 02:45 PM
#1
Wal-Mart threatens legal action if Black Friday ad is posted early
Wal-Mart threatens legal action if Black Friday ad is posted early
Basically, they acknowledge that the ad is going to get out early but if any site posts it before 11-19 they are going to go after them.
Didn't this happen a couple of years ago? I want to say some store went after Fat Wallet but I'm not 100% if that was the site involved. Anyways, I'm pretty sure the store lost the suit, so I guess Wal-Mart is banking on the fact that most websites aren't going to have the resources to let this go to court.
Personally, I don't quite understand the fuss. It's not like stores do price matching on BF anyways, and I would imagine that all big stores already know what they are going to have in their ads. I know I view the ads early so I can plan which stores I want to hit, the order I want to hit them, and how much money I need to set aside.
I realize this is pretty similar to the DVDTalk/Speedy/Circuit City issue, but what do you think?
(edited to add "ad" to title)
Basically, they acknowledge that the ad is going to get out early but if any site posts it before 11-19 they are going to go after them.
Didn't this happen a couple of years ago? I want to say some store went after Fat Wallet but I'm not 100% if that was the site involved. Anyways, I'm pretty sure the store lost the suit, so I guess Wal-Mart is banking on the fact that most websites aren't going to have the resources to let this go to court.
Personally, I don't quite understand the fuss. It's not like stores do price matching on BF anyways, and I would imagine that all big stores already know what they are going to have in their ads. I know I view the ads early so I can plan which stores I want to hit, the order I want to hit them, and how much money I need to set aside.
I realize this is pretty similar to the DVDTalk/Speedy/Circuit City issue, but what do you think?
(edited to add "ad" to title)
10-19-07, 05:32 PM
#3
When I worked my first job at a grocery store, I mentioned to one of the vendors about a great deal we had coming up on 12 packs next week. Just making conversation, not thinking anything of it. The grocery manager was there and talked to me afterwards and told me to NEVER mention any of the deals in an ad before the ad comes out. They were afraid that the vendor, who goes to different grocery stores, will go to another store and reveal what we have in an upcoming and and trump it, thus making us lose business to other stores.
So while I think Wal Mart has very little to worry about in terms of getting major business on Black Friday, I can certainly appreciate why they don't want that information leaked. It's not the consumer they are worried about...it's the COMPETITOR they are worried about. They don't want the competitor stores to get that information early. Why should Target get that information, for example, if Wal Mart can't get Targets Black Friday sales before the date?
So while I think Wal Mart has very little to worry about in terms of getting major business on Black Friday, I can certainly appreciate why they don't want that information leaked. It's not the consumer they are worried about...it's the COMPETITOR they are worried about. They don't want the competitor stores to get that information early. Why should Target get that information, for example, if Wal Mart can't get Targets Black Friday sales before the date?
10-19-07, 05:33 PM
#4
Originally Posted by Unknown27
So man people post it early regardless. I'm sure we'll see it on Gizmodo real soon.
10-22-07, 10:32 PM
#5
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Originally Posted by calhoun07
When I worked my first job at a grocery store, I mentioned to one of the vendors about a great deal we had coming up on 12 packs next week. Just making conversation, not thinking anything of it. The grocery manager was there and talked to me afterwards and told me to NEVER mention any of the deals in an ad before the ad comes out. They were afraid that the vendor, who goes to different grocery stores, will go to another store and reveal what we have in an upcoming and and trump it, thus making us lose business to other stores.
So while I think Wal Mart has very little to worry about in terms of getting major business on Black Friday, I can certainly appreciate why they don't want that information leaked. It's not the consumer they are worried about...it's the COMPETITOR they are worried about. They don't want the competitor stores to get that information early. Why should Target get that information, for example, if Wal Mart can't get Targets Black Friday sales before the date?
So while I think Wal Mart has very little to worry about in terms of getting major business on Black Friday, I can certainly appreciate why they don't want that information leaked. It's not the consumer they are worried about...it's the COMPETITOR they are worried about. They don't want the competitor stores to get that information early. Why should Target get that information, for example, if Wal Mart can't get Targets Black Friday sales before the date?
10-23-07, 09:22 AM
#6
DVD Talk Legend
I actually went to Walmart on Black Friday a few years back and DAMN!!! Everything could be free and I wouldn't go back to that fucking leper colony on that day and deal with the human lowest common denominator.
10-24-07, 09:04 AM
#7
DVD Talk Limited Edition
Originally Posted by cdollaz
I actually went to Walmart on Black Friday a few years back and DAMN!!! Everything could be free and I wouldn't go back to that fucking leper colony on that day and deal with the human lowest common denominator.
10-24-07, 09:28 AM
#8
DVD Talk Limited Edition
Originally Posted by cdollaz
I actually went to Walmart on Black Friday a few years back and DAMN!!! Everything could be free and I wouldn't go back to that fucking leper colony on that day and deal with the human lowest common denominator.
10-24-07, 09:38 AM
#9
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Good article from a Harvard Law Prof regarding the above:
Black Friday Ads: the Prequel
Wendy Seltzer, October 22, 2007
Abstract: If it's fall, these must be cease-and-desists for Black Friday ads. This year, they seem to be coming earlier than ever, as Wal-Mart sends pre-notifications against future posting.
For many years, major retailers have complained about the online posting of their post-Thanksgiving sale prices, generally protesting the previews that appear online even before the circulars hit the papers. The so-called "Black Friday" sales, on the day after Thanksgiving, often feature deep discounts and limited quantities of "hot" items, so bargain-hunters like scoping out the deals online. Major retailers say they'd prefer people found the sales the old-fashioned way, in the newspaper or perhaps on the stores' own websites. In past years, Wal-Mart, Target, Best Buy, Linens 'N Things, and Staples, have all fired off complaints. See Black Friday
In the past, they've used copyright claims, which fit poorly with the posting of price compilations. Copyright doesn't protect facts or ideas, only original expression. Yet the stores were trying to squelch pre-announcement of facts: the prices they intended to affix to items, not any expressive element of the circulars' graphic design or its arrangement of items. Copyright claims probably looked attractive because they pull in the DMCA Safe Harbor Provisions">DMCA notice-and-takedown procedure , giving reason for the service provider to disable customers' sites. See Chilling Effects' collection: Bargain Shoppers Chilled by Retailers' DMCA Threats.
This year, Wal-Mart has taken action even before the Halloween pumpkins are carved, sending pre-notifications to websites that have posted Black Friday ads in the past. For example, Wal-Mart Pre-Warns Against Early Black Friday Ads.
Why the pre-notification? Does Wal-Mart just want to add a bit of chill to the unseasonably warm fall? Does the retailer want sites to pre-screen user-posted content? Do the notices have any legal effect?
If Wal-Mart is relying on copyright claims, the notices are nearly pointless. Warning doesn't make facts copyrightable, while if users are posting material, a site doesn't incur obligation to monitor merely because someone warns that infringement is likely. Availing themselves of the DMCA safe harbor, sites can allow users to contribute material unfiltered, reviewing and removing only if copyright holders notify them of existing -- not hypothetical future -- infringements. If the site-owners themselves do the posting, they might be warned off by the assertion if they credit claims of copyright in facts, but their underlying liability would turn on whether they copied copyrightable expression, not whether they ignored a warning.
But this time Wal-Mart's claims appear to be broader, invoking the "confidential and proprietary" nature of their "commercially valuable" price information. Trade secret law proscribes "misappropriation" of commercially valuable secrets, provided the holder has taken reasonable steps to keep the secret. Most trade secret cases are against those who directly steal a secret or break a confidentiality agreement, but many states, guided by the Uniform Trade Secrecy Act, define misappropriation broadly, to include
disclosure or use of a trade secret of another without express or implied consent by a person who ... (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use
By pre-notifying sites, Wal-Mart is likely trying to establish the "knew or had reason to know" element of a misappropriation claim, to say that even if the sites themselves engage in no "improper means," they should anticipate that anyone sending in Black Friday preview ads must have acted "improperly." Wal-Mart would have to establish that its price lists were properly trade secrets -- economically valuable because of their secrecy, subject to reasonable measures to preserve their secrecy -- and that any who posted after receiving its warning knew or should have known they were misappropriated.
Notification can't create secrets if Wal-Mart doesn't take other reasonable measures to keep the prices from leaking, but if it takes those measures, through confidentiality agreements and need-to-know limits on those who get early access, yet economically valuable secrets leak anyhow, advance warnings to third parties might turn innocent receipt into misappropriation. As any lawyer will tell you, much will depend on the particular facts!
Meanwhile, as Reuters reports, many of the consumer sites are encouraging their readers to contact Wal-Mart to ask for a change in policy.
Black Friday Ads: the Prequel
Wendy Seltzer, October 22, 2007
Abstract: If it's fall, these must be cease-and-desists for Black Friday ads. This year, they seem to be coming earlier than ever, as Wal-Mart sends pre-notifications against future posting.
For many years, major retailers have complained about the online posting of their post-Thanksgiving sale prices, generally protesting the previews that appear online even before the circulars hit the papers. The so-called "Black Friday" sales, on the day after Thanksgiving, often feature deep discounts and limited quantities of "hot" items, so bargain-hunters like scoping out the deals online. Major retailers say they'd prefer people found the sales the old-fashioned way, in the newspaper or perhaps on the stores' own websites. In past years, Wal-Mart, Target, Best Buy, Linens 'N Things, and Staples, have all fired off complaints. See Black Friday
In the past, they've used copyright claims, which fit poorly with the posting of price compilations. Copyright doesn't protect facts or ideas, only original expression. Yet the stores were trying to squelch pre-announcement of facts: the prices they intended to affix to items, not any expressive element of the circulars' graphic design or its arrangement of items. Copyright claims probably looked attractive because they pull in the DMCA Safe Harbor Provisions">DMCA notice-and-takedown procedure , giving reason for the service provider to disable customers' sites. See Chilling Effects' collection: Bargain Shoppers Chilled by Retailers' DMCA Threats.
This year, Wal-Mart has taken action even before the Halloween pumpkins are carved, sending pre-notifications to websites that have posted Black Friday ads in the past. For example, Wal-Mart Pre-Warns Against Early Black Friday Ads.
Why the pre-notification? Does Wal-Mart just want to add a bit of chill to the unseasonably warm fall? Does the retailer want sites to pre-screen user-posted content? Do the notices have any legal effect?
If Wal-Mart is relying on copyright claims, the notices are nearly pointless. Warning doesn't make facts copyrightable, while if users are posting material, a site doesn't incur obligation to monitor merely because someone warns that infringement is likely. Availing themselves of the DMCA safe harbor, sites can allow users to contribute material unfiltered, reviewing and removing only if copyright holders notify them of existing -- not hypothetical future -- infringements. If the site-owners themselves do the posting, they might be warned off by the assertion if they credit claims of copyright in facts, but their underlying liability would turn on whether they copied copyrightable expression, not whether they ignored a warning.
But this time Wal-Mart's claims appear to be broader, invoking the "confidential and proprietary" nature of their "commercially valuable" price information. Trade secret law proscribes "misappropriation" of commercially valuable secrets, provided the holder has taken reasonable steps to keep the secret. Most trade secret cases are against those who directly steal a secret or break a confidentiality agreement, but many states, guided by the Uniform Trade Secrecy Act, define misappropriation broadly, to include
disclosure or use of a trade secret of another without express or implied consent by a person who ... (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use
By pre-notifying sites, Wal-Mart is likely trying to establish the "knew or had reason to know" element of a misappropriation claim, to say that even if the sites themselves engage in no "improper means," they should anticipate that anyone sending in Black Friday preview ads must have acted "improperly." Wal-Mart would have to establish that its price lists were properly trade secrets -- economically valuable because of their secrecy, subject to reasonable measures to preserve their secrecy -- and that any who posted after receiving its warning knew or should have known they were misappropriated.
Notification can't create secrets if Wal-Mart doesn't take other reasonable measures to keep the prices from leaking, but if it takes those measures, through confidentiality agreements and need-to-know limits on those who get early access, yet economically valuable secrets leak anyhow, advance warnings to third parties might turn innocent receipt into misappropriation. As any lawyer will tell you, much will depend on the particular facts!
Meanwhile, as Reuters reports, many of the consumer sites are encouraging their readers to contact Wal-Mart to ask for a change in policy.
10-24-07, 10:37 AM
#11
DVD Talk Legend
Originally Posted by cdollaz
I actually went to Walmart on Black Friday a few years back and DAMN!!! Everything could be free and I wouldn't go back to that fucking leper colony on that day and deal with the human lowest common denominator.
10-25-07, 11:46 PM
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Originally Posted by calhoun07
Why should Target get that information, for example, if Wal Mart can't get Targets Black Friday sales before the date?
Way too many people think that phrase means soliders have to die to protect a free country. Well soldiers have to die to protect fascist countries too - the real cost is else where.
The price of freedom is not just buried in the ground, its in the cost of all the inequalities and problems that come about when a society follows a set of principles that are deemed more important in the long run. Our country talks the big talk about freedom of speech. Well, if freedom of speech is so important, surely it overrides a company's right to potentially make an extra buck.
If a company can't keep its own house in order, it sure shouldn't have the right to force others do its housekeeping for it.
Last edited by Jah-Wren Ryel; 10-25-07 at 11:48 PM.
