Best Buy + DMCA = One Step Further From Reality

The Digital Millennium Copyright Act (DMCA), originally designed to combat digital piracy, has proven to us in its short history that it is poorly designed to prevent abuse of its provisions to monopolize various markets. Whether it be a garage door opener, an inkjet printer, or a game server, the anti competitive implications are quite clear.

Yet another ridiculous example: Consumer electronics giant BestBuy has threatened to send a DMCA takedown notice to the the ISP of a site called BlackFriday.info. This site posts the prices of products that will be on sale on Black Friday (the day after Thanksgiving). Recently these types of sites have become very popular because big name stores--I assume--like to keep their sale prices a secret. I still don't quite understand how getting more publicity about sale prices is a bad thing, but it is clear that BestBuy is not happy at all.

The site decided to pull the post: "BestBuy has threatened to file a take down notice with our ISP under the provisions of the Digital Millennium Copyright Act (DMCA) due to our posting of the BestBuy Black Friday ad. While we believe that sale prices are facts and not copyrightable, we do not want to risk having this website shut down due to a DMCA take down notice. Because of this, we have removed the BestBuy Black Friday ad from the website as requested."

This is a pretty sad state of affairs, and for two reasons.

First, this isn't even the first time BestBuy has pulled this kind of stunt. In 2003, BestBuy threatened FatWallet.com for posting the same type of price information, which provoked FatWallet to sue BestBuy--although unsuccessfully--for abusing the DMCA.

Second, it is not at all clear that BestBuy has a valid legal claim. The DMCA is designed to give a party with a copyrighted work--a videogame, a song, a software program--a way to effectively protect their works and prevent others from either circumventing digital locks or trafficking in the sale of tools that would enable others to circumvent digital locks. The prerequisite for any of this protection, however, is that you must be protecting a COPYRIGHTED work. What copyrighted work is BestBuy protecting? The work at issue is text-only lists of products and their sale prices.

I think it would be a much closer case if someone was scanning in actual BestBuy advertisements and posting those images on the website. In that case, I would agree that BestBuy's advertisement was a copyrighted work because the selection and arrangement need to create an advertising design exhibit a modicum of creativity.

That I believe a sale price isn't copyrightable doesn't, however, mean that I agree with BlackFriday.info. BestBuy has a right to protect its own business information until it decides to make that information public. Nevertheless, the DMCA isn't the way to effectuate that kind of control. There are plenty of ways to protect business information without distorting copyright law.