Wal-Mart Threatens Site Over Black Friday Ad Deals

from the didn't-we-do-this-already? dept

Mon, Oct 6th 2008 11:57am — Mike Masnick

Want to know how we know the holidays are coming? It's not the Christmas decorations already showing up in stores; it's the annual ritual of retailers threatening any website that posts the deals from their "Black Friday" (the day after Thanksgiving) sales circular prior to that day. Last year, Wal-Mart went beyond what others stores had done, in pre-threatening sites. In the past, companies like Target and Best Buy had simply threatened to sue sites after the ads went up. But Wal-Mart took it a step further and threatened to sue before the ads even went up, ignoring, of course that they don't own pricing data. The data on sales prices are not copyrightable and cannot be owned. Wal-Mart simply has no legal leg to stand on in demanding the data from the circular be taken down.

But why let that stop them? An anonymous reader alerts us to the fact that Wal-Mart is already sending the notices out to various sites, threatening legal ramifications if the sites were to post the prices prior to the date Wal-Mart makes them "official."

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Filed Under: ads, black friday, copyright, facts, lawsuits, prices, trade secrets
Companies: wal-mart

52 Comments

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Anonymous Coward, 6 Oct 2008 @ 12:15pm

Come on
Yeah Wal Mart and other big companies use lawyers to threaten people? What the hell are they for if not bullying? No one says thier threats have to be based in actual law, made up stuff works just fine. This is the "real" Bush doctrine.
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- Enough already with crap, 6 Oct 2008 @ 12:45pm
  
  Re: Come on
  How is this a Bush doctrine. Please explain with facts. I want sources so don't be making crap up. Lets go. I'm tired of seeing people post crap about something they do not understand!
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  - Debbie Blevins, 6 Oct 2008 @ 2:58pm
    
    Re: Re: Come on
    AMEN my brother!
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  - eskayp, 6 Oct 2008 @ 6:38pm
    
    Re: Re: Come on
    Did you mean like Bush telling us Al-Queda and "Nukyoolar" weapons factories were in Iraq prior to his invasion thereof?
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    - BTR1701, 7 Oct 2008 @ 11:41am
      
      Re: Re: Re: Come on
      > > How is this a Bush doctrine. Please
      > > explain with facts.
      
      > Did you mean like Bush telling us Al-Queda
      > and "Nukyoolar" weapons factories were in
      > Iraq prior to his invasion thereof?
      
      And which has absolutely jack-all to do with baseless legal threats from Wal-Mart to bargain-hunting web sites.
      
      I'm no big fan of Bush, but there's a certain lunatic contingent of people out there who blame the man for absolutely everything negative in the world.
      
      I swear to god if NASA announced tomorrow that they'd detected a asteroid heading for a collision with earth, these people would instantly chime in on how rogue celestial bodies are all George Bush's fault.
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- cake, 6 Oct 2008 @ 12:46pm
  
  Re: Come on
  Woohoo - genius alert here. Quick, link something non-political to politics because we are about to vote for a pres/candidate who will have little to no impact on the topic!
  
  Same game, as long as the websites push back, it is simply drumming up earlier interest in black friday. i.e. it is working either way
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- Carpe, 6 Oct 2008 @ 12:59pm
  
  Re: Come on
  I'm no fan of the dubya, but GWB has nothing to do with this article. You might as well have said, "This is the real Siberian doctrine." Equally as obtuse. Is Wal-Mart a turd? Certainly. Is preemptive legal action daft in this situation? No argument. Does this article have anything to do with anything other than Wal-Mart and the sites who are putting out black Friday pricing? No.
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  - David, 6 Oct 2008 @ 1:04pm
    
    Re: Re: Come on
    I think they were making a reference to the fact that big business has the support of the Republican Party...
    
    A lot of people collapse that assumption...
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    - Questions, 6 Oct 2008 @ 1:09pm
      
      Re: Re: Re: Come on
      And they don't have the democratic party?
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      - CastorTroy-Libertarian, Lover, General Annoyance f, 7 Oct 2008 @ 4:59am
        
        Re: Re: Re: Re: Come on
        I thought is was the Demonic Party (just look at some of them, you can see the horns)?
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- NF, 6 Oct 2008 @ 1:37pm
  
  Re: Come on
  I fail to see how bullying by Wal Mart is related in any way to the Bush Doctrine...
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- Anonymous Coward, 6 Oct 2008 @ 2:05pm
  
  Re: Come on
  This has nothing to do with Bush. Fu@k you and Wallyworld, too.
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- erica varnadoe, 6 Oct 2008 @ 2:25pm
  
  Re: Come on
  The "Real Bush Doctrine"? And what planet are you from? Lots of large companies and little people as well, use lawyers as thugs to threaten people/companies. This has gone on longer then before Obama be-friended terrorists! Hell, even obama uses lawyers to threaten banks into making loans to lazy deadbeats who were never likely to pay the loans back!
  
  I'm not a fan of Bush either, but lets try to be fair!
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Eponymous Anonymous, 6 Oct 2008 @ 12:16pm

Let's See
Just how the retailers react to this. Wal-Mart can kiss my ass, as far as I'm concerned. Underhanded blackhearts, the lot of them! Yarrh!
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Dosquatch, 6 Oct 2008 @ 12:17pm

Legal threats
Don't unfounded legal threats constitute a form of harrassment? I wonder if there's anything to be gained by filing an actual suit against Wally World for receiving notice of a hypothetical suit.
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Mike, 6 Oct 2008 @ 12:25pm

Off shore
Just post them on offshore web servers.
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Overcast, 6 Oct 2008 @ 12:57pm

DON'T WORRY WAL-MART, I WON'T EVEN PERSONALLY GO INTO THE STORE TO LOOK AT THE PRICES!!! YOUR SECRET WILL BE SAFE FROM ME!

It seems caps lock was fitting for that, for some reason.
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Nick Stamoulis, 6 Oct 2008 @ 1:12pm

I have to agree, GWB has nothing to do with this article. In fact, it's pretty funny to mention him randomly.

I mean hey, I'm not a fan of him but this is quite ridiculous. :)
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Jamie, 6 Oct 2008 @ 1:21pm

Siberian Doctrine
In soviet Russia, doctrine has bush.
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- Anonymous Coward, 6 Oct 2008 @ 2:19pm
  
  Re: Siberian Doctrine
  NICE.
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Justin S, 6 Oct 2008 @ 1:27pm

Laughs...
I love it when this stuff comes out and people say stuff like... "F^c7 Walmart... I wont shop there" and when cheap ass go time comes, viola, we end up in walmart because it's cheaper. Hell I do it too... lol. Happy shopping to all.

P.S. You guys are dragging this political discussion out. That is what they want.
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- CVPunk, 6 Oct 2008 @ 4:20pm
  
  Re: Laughs...
  Guess I have stronger convictions. I absolutely refuse to go to wal-mart, and no, I don't ever go back on that. I don't remember the last time I stepped foot in one actually.
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pilotman28, 6 Oct 2008 @ 1:36pm

Don't get it
What I don't get is why they'd be P.O'd because if I knew wal-mart was going to have better sales than another store this far ahead it might make more people go. Marketing is marketing and in that light this may be just them trying to get more press to those sites in an attempt to have more people look. Nothing is ever more intriguing than that which you can not touch.
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Anonymous Coward, 6 Oct 2008 @ 1:39pm

Walmart can threaten anyone they want - they can support gays, they can hate homosexuals. They can support stem cell research or actively state that abortion is murder. Honestly, I don't give a flying Fcuk because I can buy spaghetti and a chainsaw while I get my fishing permit in the same store, cheaper than most other places. I don't really give a hoot about their moral platform in the least. I just want the smiley face to knock down prices (even if it is from $3.99 to $3.87 - that's still $.12 in my pocket. If I give this article 2 of those, I'm still up a dime)
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- Uncle Sam, 6 Oct 2008 @ 2:11pm
  
  Re: Smiley Face price reduction
  Your quest for the lowest price with no moral implications has forced companies to use inferior materials and cheap foreign labor so that we can happily buy cheap (not inexpensive, CHEAP sh!t) 24 hours of the day.
  
  YOU are what is wrong with America!
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  - erica varnadoe, 6 Oct 2008 @ 2:36pm
    
    Re: Re: Smiley Face price reduction
    Yes, and we all know that non americans would much prefer to pay really high prices and know that the foreig labor work force was very well paid, at the similar wages that would be paid in the USA. Oh wait, then those evil companies might just do the work at home in the USA. Then the cheap foreign labor would no longer be explotied. AND OF COURSE THEY WOULD BE UNEMPLOYED!!!! Some $$$ is better then no $$$!!!!
    
    But of course they could always go to france! (or be an obama activist)!
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    - CVPunk, 6 Oct 2008 @ 4:25pm
      
      Re: Re: Re: Smiley Face price reduction
      ahhh... gotta love the capitalist rhetoric.
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Rosie, 6 Oct 2008 @ 1:41pm

Threats aren't the only problem
The real pain - and motive - here is that it doesn't matter whether the suit has any legal foundation. Big corporations have deep pockets to pay legal fees, and can make the lives of smaller companies (or individuals, as seen with the RIAA lawsuits) grind to a standstill, and bankrupt them while they're trying to counter a suit that has no actual merit. They draw out these lawsuits for years, and people or companies with few resources simply can't afford to fight back.

It's just plain and simple bullying. The mere threat of a suit in today's economic climate is enough to effect the desired action.
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trapper, 6 Oct 2008 @ 1:44pm

None of it matter with No money
Doesn't matter if they sue or not. Most people will not be able to spend much this christmas season since most can't afford the mortgage on their house or the credit they already own on. I know I won't have any extra money...
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Anonymous Coward, 6 Oct 2008 @ 1:48pm

What about adscans
I understand the simple information about the prices can't be claimed by Wal-Mart, but I'm curious about adscans. I know some websites put up actual scans of the ads, are these subject to copyright because they are physical printed copies?
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- Hugh Mann, 6 Oct 2008 @ 4:43pm
  
  Re: What about adscans
  Yes, scanning and posting the actual ads implicates copyright issues. Of course those issues can also include fair use and so forth - if applicable.
  
  HM
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- hegemon13, 7 Oct 2008 @ 6:53am
  
  Re: What about adscans
  They are absolutely subject to copyright. The ads are Wal-Mart's expression of the pricing data. Could be they own copyright on some of the ad's photographs, too.
  
  On the other hand, this is FREE publicity. Suing someone willing to give you free advertising is pretty dumb. If they are worried about upcoming ads slowing down current sales, then there is an easy solution: don't send out information about the Black Friday sales until closer to the event.
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NullOp, 6 Oct 2008 @ 2:04pm

Corporate Bullying
10-4 on the bullying. Thats why someone who really has had enough votes with his/her dollars. They shop somewhere else! Yeah, it'll cost a bit more but no corporation on earth can resist the drying-up of their revenue channels! :->
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- Hugh Mann, 6 Oct 2008 @ 4:47pm
  
  Re: Corporate Bullying
  Well, that assumes it really is "drying up." For every person who who gets a bug up their ass about WM and makes a big deal about boycotting them, there are about a hundred and eighty-seven other folks stampeding through the doors to buy $29 DVD players.
  
  HM
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Hugh Mann, 6 Oct 2008 @ 2:40pm

Trade secret
Price data CAN be a trade secret, if the idea is that it gives them a competitive advantage, and they take reasonable steps themselves to keep it confidential. Once Wal*Mart publishes the info, though, it's no longer secret (obviously), and is not otherwise protected by copyright. So, if this pricing data is posted by someone who got it legitimately (e.g., in their own newspaper), and was just being ambitious in getting it posted online, that's likely not something that can be stopped by Wal*Mart. However, if the way it gets posted is by someone who "misappropriated" the data (e.g., an employee leaked it), Wal*Mart may very well be able to succeed in a legal action against the wayward employee and anyone downstream who knew or should have known the data was supposed to be kept secret. HM
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- Hugh Mann, 6 Oct 2008 @ 4:40pm
  
  Re: Trade secret
  I looked at the letter over at BlackFriday's site. Basically, it puts BF on notice that if they get the Wal*Mart ad before 24 November, BF will have gotten it via improper means on somebody's part (not necessarily BF themselves, but someone in the chain from WM to BF).
  
  They also noted (correctly) that the ads themselves are copyrightable works - not just the data, but the actual circular with the pictures and so forth.
  
  HM
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Anonymous Coward, 6 Oct 2008 @ 2:42pm

or maybe Walmart WANTS you to know that their sale prices are out there so you can see how much you will save if you don't shop at the other stores and wait until Friday to shop at Walmart
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Rob, 6 Oct 2008 @ 2:43pm

To quote Jeff Dunham's Walter
"Welcome to Wal-Mart, get your shit and get out!"
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Elmer, 6 Oct 2008 @ 3:36pm

This should be a good use for P2P
Somebody should make a torrent of all of these, and then the fun can really begin!
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Joe C., 6 Oct 2008 @ 3:53pm

Another form of advertising?
It seems to me that by posting the prices earlier, Wal Mart could have an advantage in the Black Friday feeding frensy. Consumers would see their prices and head off to Wally World instead of Target, KMart, etc. So my point is, what are they whinning about?
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- CVPunk, 6 Oct 2008 @ 4:30pm
  
  Re: Another form of advertising?
  Or.... maybe wal-mart is affraid the competion would see the price cuts they are offering, then turn around and undercut wal-mart's prices.
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  - CVPunk, 6 Oct 2008 @ 4:31pm
    
    Re: Re: Another form of advertising?
    never mind... way too logical for this site.
    don't know what I was thinking.
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- Anonymous Coward, 29 Oct 2008 @ 8:17pm
  
  Re: Another form of advertising?
  It's simple. They don't want anybody posting because all the stores fight so hard for the same business, if prices are released too early, other stores have time to try to counter those prices.
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John (profile), 6 Oct 2008 @ 6:01pm

Can we stop with Black Friday
I think this site is a good place to finally stop the idea of "Black Friday".

From Snopes.com:
http://www.snopes.com/holidays/thanksgiving/shopping.asp

Claim: The day after Thanksgiving is the biggest shopping day of the year in the U.S.
Status: FALSE

"It's one of the busiest days in terms of traffic but not in sales.

"The result is that Black Friday nearly always ends up ranking below the last Saturday before Christmas (or December 23, if Christmas Day falls on a weekend)...

"According to statistics published by the International Council of Shopping Centers (ICSC), the top shopping days for the years 1993 through 2002 were: [between Dec 19 and Dec 23]

"For those years, "Black Friday" held the following positions in the ICSC's rankings of year's busiest shopping days: [#4 to #8]"
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cliff corson, 7 Oct 2008 @ 1:13am

use of information from upcoming ads
as a departmental person in retail i can say there are many reasons why stores will sue lawyers to put the various "black friday" sites on notice.

first off the companies that are contracted to print the ads for stores are under non-disclosure agreements about the information in the ads. this means any employee of that company that removes or gives the info out early can have drastic conditions for that company

next there are also the fact that there are multiple prints for the same ad. as some regions/local areas/states have slightly different product assortments there can be as many as 2 dozen different versions of the same ad -- each is for a specific area. if you check out various web sites and type in different zip codes for different states you'll see slight differences.

also there are some folks who suffur from "buyers remorse" and will purchase items then get upset when they see them on sale next month or in a few weeks. they in turn return or bully the stores to give them a refund the difference on the item that they purchased. the same occurs with clearance merchandise.

also with some "black friday" items being in short supply there are some folks that will buy those items and then come back for price adjustments when the same occurs.

the information on the ads can be used by competitors to :get a leg up" on the competition by seeing an item on sale and lowering their price to either force the original retailer to lower their price or make that company seem higher in the visual look

cliff
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BTR1701, 7 Oct 2008 @ 11:44am

Ridiculous
If I were one of these site operators, next year I’d preemptively send Wal-Mart a letter saying that “In anticipation of your yearly round of baseless legal threats, we’d just like to highlight the current state of copyright law for you and outline for you exactly why you have no case whatsoever against us”, then proceed to list the case law and statutes that apply. “So if you feel the need to send out your bogus warning letters again this year, go right ahead, but be advised they will be completely ignored. And any legal action initiated by you on this matter will be met with a countersuit in response, alleging abuse of process, accompanied by a motion for sanctions and attorneys’ fees.”
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- Hugh Mann, 7 Oct 2008 @ 3:50pm
  
  Re: Ridiculous
  Yeah, well, that would be pretty worthless, since the letter from the WM folks to BF didn't mention copyright except in the context of posting the actual ads - so an allegation of copyright infringement would not be "baseless".
  
  Further, the letter also put BF on notice that if they get the ad early, it's only by improper means on someone's part, so BF should know to not pass it on. Again, an allegation of misappropriation of trade secrets under such circumstances would not be "baseless".
  
  Of course, once the ad is public, merely repeating the data (i.e., only items and prices, but not including the photos, descriptive text, etc.) is neither a copyright or trade secret issue.
  
  HM
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  - BTR1701, 8 Oct 2008 @ 5:28am
    
    Re: Re: Ridiculous
    Pricing data alone does not meet the elements of "trade secrets" under the law. The process by which they come up with the prices (e.g. if it's some algorithm or software that generates them) very well could be a trade secret but the pricing data itself does not meet the legal threshold.
    
    As for being "on notice" that anyone who tells them what price a DVD or a garden hose will sell for at Wal-Mart after Thanksgiving will have improperly obtained that information-- well, that's not anyone's problem but Wal-Mart's. It's not my job to enforce some company's OPSEC for them.
    
    So yes, Wal-Mart's claim is baseless.
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    - Anonymous Coward, 8 Oct 2008 @ 12:18pm
      
      Re: Re: Re: Ridiculous
      "Pricing data alone does not meet the elements of "trade secrets" under the law."
      
      I hate to be the one to break the news, but pre-release product pricing has been subject to trade secret law under the Restatement of Torts 2nd, the Restatement of Unfair Competition, the Uniform Trade Secrets Act, common law, state statutes, federal statutes, etc.
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Slick Deals, 23 Oct 2008 @ 12:05pm

Wal-Mart Threatens Site Over Black Friday Ad Deals
I sure hope this year's deals are amazing, as many are predicting. I am so ready for Black Friday!! Black Friday Deals
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Aurelia, 25 Oct 2008 @ 10:38am

I used to work for Wally World, I was fired for "stealing company time" That is correct, I took too long to walk from the time clock to my department. I suspect Lee Scott et al doesn't want the information posted because it's still trying to strong-arm deals out of their suppliers.
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charlotte, 27 Dec 2009 @ 5:30pm

Wal-Mart & other retailers Deceives you into thinking you got a holiday sale
I was really angry that i waited for the sales, only to find out instead of getting a sale all the prices were jacked up. I wrote a story about it in my blog, feel free to check it out. This year was really disapointing for consumers to say the least. You can use my article any way you want if you like, re-post it, link it - I dont care, as long as people find out the truth.

http://99graphicdesigns.com/category/latest-post/
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