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FatWallet Challenges Abusive DMCA Claims and Protects Users’ Privacy Rights

ROSCOE, IL – In a blatant misuse of the Digital Millennium Copyright Act, over the past two weeks, a group of national retailers forced FatWallet.com to remove Day After Thanksgiving sales information from its site. In letters sent to FatWallet, each retailer claimed that the Copyright Act gives it a monopoly over this price data. Today, FatWallet.com challenges those letters as abuses of federal law, insists on damages, and refuses to disclose identifying information on the individuals who posted the sales information.

FatWallet.com is a venue for consumer-to-consumer communication as well as business-to-consumer marketing. FatWallet is represented by Megan E. Gray, of Gray Matters, and Deirdre K. Mulligan and Jennifer Urban, of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, School of Law (Boalt Hall).

FatWallet’s site allows individuals to post information about sales prices, store reviews, and shopping tips. In the last two weeks, several individuals anonymously posted information about the upcoming Day After Thanksgiving sales. Wal-Mart, Kmart, Jo-Ann Stores, and other retailers immediately sent letters to FatWallet.com claiming, under penalty of perjury, that each owned a protectible copyright in this pricing information.

FatWallet reluctantly deleted this allegedly infringing information to avoid potential liability, but FatWallet now demands that the retailers justify their actions. Tim Storm, President and Founder of FatWallet, remarked, “The saying used to be that the customer is always right – our feeling is that customers have rights, and we are not going to let frivolous DMCA claims interfere with a consumer’s ability to share information about retailers.”

Today, FatWallet sent each retailer a letter contesting its frivolous copyright assertion and demanding payment, under Section 512(f) of the DMCA, for all damages, including costs and attorneys’ fees, incurred by FatWallet in addressing the knowing and material misrepresentations of copyright protection. According to Megan E. Gray, “As the retailers well know, simple sales prices are not protected by copyright. Copyright only covers the expression of ideas, not facts.” Deirdre K. Mulligan noted, “This is an example of corporations using allegations of copyright infringement to silence speech.”

Wal-Mart went further than the other retailers, filing, under penalty of perjury, a declaration with federal court in Illinois and obtaining a subpoena under Section 512(h) of the DMCA that ordered FatWallet to identify the individual who posted Wal-Mart sales information. Deirdre K. Mulligan said, “This is an outrageous example of a corporation contorting copyright law and attempting to use the DMCA to out the identity of an individual sharing factual information. The DMCA’s subpoena provision, which allows an entity to demand the identity of an alleged infringer from an Internet service provider prior to filing a lawsuit, is controversial to begin with. Behavior like this shows how susceptible it is to abuse.”

FatWallet has demanded that Wal-Mart immediately withdraw that subpoena or face a Motion to Quash proceeding in federal court. Wal-Mart is expected to make a decision on Tuesday, December 3 about whether to withdraw the subpoena.

Tim Storm, of FatWallet, said, “Wal-Mart’s subpoena gave us no choice but to fight back. Unless a court rules otherwise, we’re not going to give up personal information about our users when the underlying copyright claim is baseless.”

Megan E. Gray is a principle 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 http://www.megangray.com.

The Samuelson Law, Technology & Public Policy Clinic at Boalt Hall represents individuals and non-profits 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.

Adobe Acrobat versions of today's letters:
Best Buy

walmart letters, subpoena, response

Cheers and good luck Tim.
BTW - I saw an article in Dallas Morning News on this last week. It had your picture as well.

Get em Tim!!!! I agree completely with you. Someone needs to take a stand.

Good luck!!!!

good luck

Youve got my support.

Hit 'em where it hurts, in their GreedWallets.

Goodluck Chief


From day one I've been impressed with the way you do business. This is impressive - you are fighting against your bread and butter here on the same playing field that they fought against you.



I applaude your courageous stand, and I know you have many supporters of free speech in this little community you have created.

Please accept my heartfelt thanks in standing up to such a ridiculous corporation.

<img src="i/expressions/face-icon-small-smile.gif"border=0>

Greedy corporations got caught with their finger in the cookie jar. Hope this leads to the DMCA being exposed as an idiotic law..go get'em Tim you have got my support.

Good luck, Tim!
<img src="i/expressions/face-icon-small-happy.gif"border=0>

To own a copyright, patent, trademark, or other intellectual property, the owner must prove they are willing to protect the information. For example, a software vendor cannot allow it's software to be copied for years by anyone, then selectively sue an individual company for using the software everyone else copied for free.

To apply that logic to this situation, to claim copyright of pricing information, the claimants would have to prove that:
a) the pricing information was not being used by others against whom they did not enforce the legal protection. Was this information available on other deal sites, shopping bots, the internet as a whole, rated sites like and local store engines like salescircular or storerunner? Did they pursue the same strategy against all sites, or just fatwallet because of its success?
b) the pricing information came directly from their source (flyer, web page, ...) and not through a third party.
c) that the offending party directly profited from the act of publishing the information and that the claimants were, in turn, tangibly financially harmed by the action.

As I see it, they have a long row to hoe here to make this claim. What they have accomplished in the short term is a type of illegal editorial suppression before the fact preventing fatwallet from free speech and free enterprise rights. I'm sure they hoped fatwallet would just cave and forget about it the next day since it was unlikely to happen except during major holidays. But fatwallet must realize that if it's content is considered compromised by the very people the site is reporting on, then it will no longer be the free forum we have become accustomed to.

I would like to applaud fatwallet for its action and encourage it to pursue damages against the frivolous claims to the ultimate conclusion.

Best of luck! By the way, the original DMCA/Fatwallet story made the front page of the Business section of my local paper Sunday.

Let's kick some corporate A$$, i want to break in my new shoes to kickin A$$ <img src="i/expressions/face-icon-small-tongue.gif"border=0>

This is also about precedence. If they succeed in doing this, you can bet every week when a price gets out early, they will send a form letter to fatwallet and the rest of the sites. This was an obviously targeted attack pushed by most of the major retailers as a way to stop competition..this letter is really about the survival of fatwallet (or any deal site). A lot of us here are refugees from the great Anandtech debacle and Gestapo like tactics - they ran from the first sign of trouble. this is definitely an admirable stand.

good luck <img src="i/expressions/face-icon-small-smile.gif"border=0>

Awesome Tim! Good Luck and go get 'em!! <img src="i/expressions/face-icon-small-smile.gif"border=0>

Good luck Tim, looks like you have all your ducks in a row, if these retailers had a clue they would back off before there is a boycott to protest their shortsightedness

>>Today, FatWallet sent each retailer a letter contesting its frivolous copyright assertion and demanding payment, under Section 512(f) of the DMCA, for all damages, including costs and attorneys’ fees, incurred by FatWallet in addressing the knowing and material misrepresentations of copyright protection.

However, the links to the PDF files at the bottom of the post are links to a "copyright policy statement", not to a letter contesting each retailer's frivolous copyright assertion, etc.
Edit by Moderator: one of our servers did not get the files correctly, this is being fixed immediately

Tim, is there anything that we can do to help????


Wow...those companies are F**KED!

Good job Tim, this will teach them a lesson that their customers can't be messed with. Take them for all they are worth, and maybe get some free after rebate laywering too. Now that is a new twist on this site--lol.

FW has my full support. <img src="i/expressions/face-icon-small-smile.gif"border=0>

best of luck to you tim, youre representing all of us...

GO FW!!!! Stick'it to them greedy bastards. Best of luck Tim, we're all rootin for FW!


I agree with many of the sentiments. If there is anything we can do, we're on board. The suggestion of a boycott seems counterproductive, however, since we're generally the people buying products at low, no, or negative margins of profit. An aggressive purchase and get-out-the dealbuyers campaign would be more in the right direction.

If any members have contacts, even loose acquaintences in the media, this is the kind of s**t they eat up. Contact local papers, news outlets, and other media venues and increase awareness of the story. The more awareness, the better it will be for the community's position and will also promote fatwallet at the same time.

Make the frivolous legal maneuvers these companies performed as counterproductive as possible so other companies will see what happened and not try it in the future.

Good luck Tim! I already did what I could, I didn't shop at any of those stores after the way they handled this.


good luck, I have to say that I am quite impressed by how fatwallet handled the situation. kudos!

Very cool response.

Great job Tim and good luck!

w00t! class act all the way Tim. Way to go.



Is there any way this can turn into a class action lawsuit? Since the DMCA takedown notices had a chilling effect on everyone's First Amendment rights on Fatwallet.com, it should be turned into a class action lawsuit.

I am more than willing to appear in the court and demonstrate to the jury of how the DMCA caused me mental anguish and sleepless nights because I was unable to post Black Friday information on Fatwallet.

The mental anguish alone should get me at least $10 million in damages, among other things.

Excellent work Tim! We need somebody to stand up for our rights!

Nice, I hope that you are able to fit this one all the way! Is there anything that the fatwallet community can do to support other then posting in this thread?

I'm glad soemone is sticking up for the Hot Dealers out there.

Good luck!



So very glad to see this post. You have my full support, 110% (PM anyone?)

Quoted below is an excerpt from a friend's response when advised of the situation.

"It's probably not in the interest of the EFF or anyone else to fight this issue when there are so many more well-founded issues to defend."

Or, to quote Col. Henry Potter from the vaunted MASH series


SkysailsYEAHHHH<img src="i/expressions/face-icon-small-happy.gif"border=0>

ay to go, tim...let us know if we can help in any way

Skipping 357 Messages...
those b@$t@rd$.....get 'em while it's hot Tim. <img src="i/expressions/face-icon-small-smile.gif"border=0>

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