For Retailers, It Could Be 'Bleak Friday'

By Beth Cox

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Used to be that maybe if you had a friend who worked in circulation at the local newspaper, you sometimes could get a tip on upcoming sales from the pre-printed circulars put out by the big chain stores.

It didn't happen all that often and it was pretty much a no-harm, no foul situation -- maybe you and your neighbor saved a few bucks by waiting to make a purchase until the item went on sale.

Then along came the Internet and Web sites like FatWallet.com, DealofDay.com, and Techbargains.com, where the lowest available prices for consumer goods are the focus and millions of surfers have access.

And not far behind that came the lawyers -- for Target stores, Staples, Best Buy, Wal-Mart, Sears, and others.

FatWallet, for instance, offers user forums where consumers can post everything from tips on hot deals to information on coupons and sweepstakes. It's a shopaholic's paradise. And don't think for a minute the big chains don't know it.

When postings about sales prices that will be offered on "Black Friday" -- the day after Thanksgiving that widely-acknowledged as the biggest shopping day of the year -- appeared on the site, the lawyers for the big chains sprang into action. The result? FatWallet removed some of the postings, even though it contends it is merely a collector of content contributed by third-party users.

FatWallet owner Tim Storm said lawyers for the chain stores cited the 1998 Digital Millennium Copyright Act as the legal basis for their "cease and desist" demands that the sale prices be removed.

In a posting on the site , Storm says that "while we believe that sale prices are facts and cannot 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."

But whatever the legal grounds (one can make a case that prices before they are published are at the very least trade secrets, if not copyrightable), you can clearly see why the big retailers might be more than a bit miffed. Best Buy, for instance, reportedly plans to offer a Kodak digital camera for $99.99 after Thanksgiving, while the current price is about $150. Who wouldn't wait, knowing that you can save $50?

"Someone, somewhere is getting information they shouldn't be," an OfficeMax spokesman was quoted as saying.

No one at the chain stores seems to know where the leaks are coming from, or whether it's a newspaper person or even an employee. But many of the chains set their prices on a nationwide basis, so one little tipster is all it takes. And of course, the retailers are worried as much about their competitors' prices as they are about losing pre-holiday sales.

Storm does intend to fight back, however. "We going to pursue avenues ... we are in contact with the Electronic Frontier Foundation and they are interested in investigating further," he said.

Storm contends that the information about prices is not copyrightable because it is fact.

"If it were a scan of the entire ad, it would be their creative work and that would be copyrightable," he said. "If anything it's a trade secret and the question then becomes once it has been sent to a publisher is it still a trade secret?"

All we're doing, he said, is to "provide a venue for consumers to share information."

But the worries of giant companies are not of much concern to a lot of those consumers.

One posting on the FatWallet site said:

"I also printed ... one GREAT big post with ALL the sale prices from ALL those stores plus the rest!! I've distributed them to my friends here at work and out of work! Take that you big stupid corporations!!!"