Deirdre K. Mulligan, Samuelson Clinic Dir., 510-642-0499
Tim Storm, 815-623-3750 x202
Erin Campbell, Communications Dept., 510-643-8010, ecampbell@law.berkeley.edu
Berkeley, CA – In response to FatWallet’s letter demanding that Wal-Mart withdraw its subpoena for identifying information about a poster or face sanctions, the retailer backed down. Wal-Mart had sought the identity of the individual who posted Wal-Mart Day After Thanksgiving sales information on the FatWallet site.
Megan E. Gray, co-counsel for FatWallet, was not surprised by Wal-Mart’s decision. “You have to call their bluff. Too often people will assert copyright protection when it is clear none exists, just to fall under the broad reach of the Digital Millennium Copyright Act. It is why abuses of the DMCA are so common.”
Wal-Mart obtained a subpoena from federal court under the DMCA after submitting a declaration under penalty of perjury that its sales prices were protected by copyright law. FatWallet.com objected to the subpoena on the grounds that the Supreme Court has ruled that facts cannot be copyrighted.
In one of the first times in the history of the DMCA, FatWallet also demanded that Wal-Mart pay damages for its knowingly false assertion of copyright, as provided under Section 512(f) of the DMCA.
Tim Storm, president and founder of FatWallet.com, said, “We’re pleased Wal-Mart dropped its request for the poster’s identity, but an injustice still occurred here. The use of the DMCA to remove factual information about prices that retailers charge consumers is just wrong. We stand by our belief that consumers have the right to share the factual shopping information required to be a smart consumer. That is what FatWallet is all about. We are thankful for the support of consumers everywhere who voiced their support for our position.”
FatWallet co-counsel Deirdre K. Mulligan, director of UC Berkeley School of Law’s Samuelson Law, Technology and Public Policy Clinic, said, “When the DMCA passed, many were concerned that the takedown provisions were heavily tilted against speakers–by merely claiming copyright, any individual or business can silence speech. While this case caught the public’s attention, there are certainly other instances of speakers being wrongfully silenced under the DMCA.”
Megan E. Gray is a principal in the law firm Gray Matters in Washington, DC. She represents many clients in connection with intellectual property matters, Internet issues, online privacy, anonymous speech, and related issues. More information about Gray Matters can be found at www.megangray.com.
The Samuelson Law, Technology and Public Policy Clinic at the University of California, Berkeley, School of Law (Boalt Hall), represents individuals and nonprofits on privacy, copyright, and First Amendment issues relating to the Internet and other advanced technology. More information about the Samuelson Clinic can be found at http://samuelsonclinic.org.