November 18, 2007

Positioning for Black Friday [12:55 pm]

What to Do When Goliaths Roar?

For the last several years, Wal-Mart Stores and other large chains have threatened legal action to intimidate Web sites that get hold of advertising circulars early and publish prices online ahead of company-set release dates. The retailers’ threats rest upon some dubious legal arguments, however, which may be the reason they haven’t shown a keen interest in actually going to court over the issue.

Wal-Mart has been among the most aggressive retailers in trying to cow consumer Web sites. Last month, it sent a cease-and-desist letter to BFAds.net, a site devoted to publishing Black Friday ads. Wal-Mart sent the letter even before BFAds had published Wal-Mart’s sale prices, so the cease-and-desist letter would be more properly called a “don’t even think about it” letter.

Wal-Mart asserts that its sales-price data are “protected by copyright and other laws.” The “other laws” were never identified or explained in the letter, and the claim of copyright protection for facts themselves, like sales prices, that exist separately from their original expression was rejected by the courts long ago. In a 1991 case, for example, the Supreme Court ruled that names and phone numbers in a telephone directory could not be copyrighted and thus could be freely copied.

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