Walmart Threatening Legal Action Against Websites That Leak Its "Black Friday" Circular

You must wait until Nov. 19 to know what delicious deals Walmart has in store for America this “Black Friday.” The Mart of Wal is threatening legal action against any website so bold as to post the coveted “Black Friday” circular before that date.

From CNNMoney:

Brad Olson, the founder of Gottadeal.com, a Web site that markets itself as one of many “official Black Friday deals sites,” told CNNMoney.com that he received an e-mail Wednesday from lawyers representing Wal-Mart (Charts, Fortune 500) warning him against “improper release” of the No. 1 retailer’s Black Friday sales circular.

And he isn’t the only one. Neal Rapoport, founder of Dealtaker.com which also leaks Black Friday ads, received the same legal notice from Wal-Mart on Wednesday.

“It has recently come to our attention that you and/or your company may potentially obtain possession of and untimely release Wal-Mart’s sales circulars, advertisements or other information prior to their authorized release dates,” the law firm Baker Hostetler, which represents Wal-Mart, wrote in a legal notice e-mailed to Brad Olson and obtained by CNNMoney.com.

The notice said Wal-Mart’s circulars are protected by copyright laws, and any unauthorized reproduction, publication or distribution of that information prior to Wal-Mart’s release date of Nov. 19 for its Black Friday ads “violates Wal-Mart’s right.”

“To the extent that the methods of acquisition or use include criminal activity, criminal penalties may also apply,” the notice said.

Criminal? As in jail? What does Walmart think this is, an airport?

Wal-Mart: Stop leaking Black Friday deals [CNNMoney](Thanks, Brad and Andy!)
(Photo:vidaarctique)

Comments

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  1. Twitch says:

    then google pages and a library with internet access are your friend.

  2. Trevor says:

    Ok, I get that Wal*Mart is trying to protect itself from competitors matching or beating their specials, but with all of the bad press about them recently, why not just let the damned thing leak? What’s the harm? BillyJoe and TammySue find out early and there are more motorhome drivin’ yokals at the store than anticipated?

  3. hellinmyeyes says:

    Fine. Don’t show Walmart’s Black Friday ad. Let the sites show all the other companies’ ads, and encourage people to shop there instead. Besides, isn’t Walmart the company with the biggest Christmas Creep problem anyway?

  4. EagleTheta says:

    Okay, so just don’t release their Black friday deals before their release date. Or after, for that matter. After all, does you cousin really need a cheap pair of Chinese flip-flops?

  5. Beerad says:

    I’d actually like to see a lawsuit over this — it might be entertaining to watch Wal-mart try and quantify the damages they suffered from having people view their advertising before the desired run date.

  6. RandomHookup says:

    Wal*Mart would prefer you don’t know about their Black Friday sales until after you have exited the store.

  7. darkclawsofchaos says:

    something like this happened with circuitcity and a site called cheapassgamer.com, speedy is currently taking on Circuit city for alledgedly leaking the PS3 price cut early

  8. Arlahna says:

    I just don’t like going to Walmart. Who cares if it’s released early or not or even not at all. I don’t do my christmas shopping at what my father in law lovingly calls “Wally World.” I have more respect for my relatives and myself. There are better ways to get good deals on even better quality stuff.

  9. Arlahna says:

    @RandomHookup: LOL Exactly!

  10. VidaLondres says:

    @hellinmyeyes: Actually, as far as I could tell, their Christmas stuff was almost all still in boxes. Except the shelf where the picture came from.

    Target, on the other hand, was awful.

  11. When Black Friday circulars are made criminal only criminals will have Black Friday circulars.

  12. Antediluvian says:

    You can’t copyright facts (well, for the most part), so if you REALLY want to post something, post a list of items and prices. They might not like it, but I seriously doubt they could successfully claim copyright on it.

    In my non-lawyer opinion.

  13. XianZomby says:

    It doesn’t make any difference why Wal*Mart doesn’t want the ad circular posted. It’s theirs and it’s copyrighted. They don’t need an excuse to say “stop.”

    What is it with people that don’t understand intellectual property rights, anyway?

    Maybe you write a paper in college and your roommate takes the paper off your computer and turns it in as his own. The paper is still on your computer, right? And the plagiarism he committed is really wrongdoing between him and his professor. But that part of you that is violated, offended and cheated by this? That’s the part of your brain where lies your nascent understanding of intellectual property.

    Copying CDs, DVDs, MP3s, books, television shows, magazines, etc. so you can keep a copy for yourself without paying; using without authorization somebody else’s copyrighted material? that’s stealing — whether you hate the victim’s business model or not.

    Wal*Mart, Viacom and BMG don’t care if you think they are the evil empire, or that you’re some kind of intellectual property rights Robin Hood. They can f**k you over when you break the copyright law. And they should.

  14. sonichghog says:

    Its not a big deal. I think K-Mart did this too. All the ad sites did was list the items for sale, and not a picture of the ad

  15. humphrmi says:

    How about if Wal-Mart goes ahead and fucks themselves and I shop somewhere else.

  16. Skeptic says:

    BY XIANZOMBY AT 06:36 PM

    It doesn’t make any difference why Wal*Mart doesn’t want the ad circular posted. It’s theirs and it’s copyrighted. They don’t need an excuse to say “stop.”

    Dear Sockpuppet,

    Facts cannot be copyrighted.

    Although SprallMart can prevent publication of scans of their advertising circulars by invoking copyright law they cannot claim copyright of the factual content which includes the items and prices.

    Please feel free to post again when the “part of your brain where lies your nascent understanding of intellectual property” has been educated with actual knowledge of copyright law rather than haughty bluster.

  17. DrGirlfriend says:

    I am more interested in knowing if the little Walmart store in the picture is an actual decorative item, that is actually for sale. And if an actual person has it in their actual house.

  18. humphrmi says:

    @DrGirlfriend: I’d like to light one on fire under my Christmas tree, and dance around it in a traditional pagan ritual.

    Oh wait, I’m Jewish.

  19. Wasn’t it Harvard’s bookstore that tried to say its prices were proprietary information and forbid people from writing down ISBN codes and prices? Wal-Mart saying their ads are copyrighted is less a stretch than that.

    But I still think it sucks.

  20. XianZomby says:

    @Skeptic: Dear Septic,

    Scans? Like these:

    [bfads.net]

    [blackfriday.gottadeal.com]

    Gotadeal even watermarks images with their own name.

    They might actually have permission from Ace to do this.

    But they haven’t got it from Wal*Mart.

  21. Falconfire says:

    @xianzomby: cant copyright a Ad nimrod. Wallyworld can threaten all they want, all it takes is someone willing enough to take them to court on it to make them back down since its illegal to copyright facts.

  22. XianZomby says:

    @Falconfire: Pagination is copyrightable. And unless the product images — taken by either a retailer’s in-house photographer or provided by the product manufacturer — have been made royalty-free, then the images are copyrighted too.

  23. Bay State Darren says:

    It’s very thoughtful of them to give Consumerist‘s legal department a heads up for when the flyer’s inevitably posted or linked to here. [Editors: don't let them intimidate you!]

  24. The_Duke says:

    @XIANZOMBY

    You are wrong, and you are dumb. If the deal websites post just text such as “Walmart: XYZ scanner=$29.98″ they are not infringing any copyright. Walmart doesn’t have a leg to stand on.

    See CBC Distribution and Marketing Inc. v. Major League Baseball, 2007

  25. IRSistherootofallevil says:

    That’s like saying Donald Trump can trademark the words “You’re fired.” He can’t. He can, but it’s hardly enforceable.

  26. XianZomby says:

    @The_Duke: These two sites didn’t “post just text.” They posted scans of Ace’s ad circular. And they sell advertising space next to the scans.

    [bfads.net]

    [blackfriday.gottadeal.com]

    Do Wal*Mart lawyers have it all wrong? Is the business model so clear on these Web sites used only for companies other than Wal*Mart? Were they going to post scans of Ace’s ads, but post only text, such as “Walmart: XYZ scanner=$29.98″ for the Wal*Mart ads?

    Or maybe it’s just “fair use” to profit by selling ad space next copyrighted material you don’t have permission to use.

    Wal*Mart lawyers might have been mistaken to think that if these sites posted Ace’s ads, that they might also post Wal*Mart’s ads. And these sites might very well have permission to scan in ad circulars and post them. I don’t know the answer to that.

    But I know they don’t have permission to scan in Wal*Mart’s ads and post them. That’d be copyright infringement.

  27. scoosdad says:

    @xianzomby: “And they sell advertising space next to the scans.”

    And somewhat ironically at this moment, one of the Google ads at blackfriday is for Wal*Mart.

  28. humphrmi says:

    First, let me say that I would *love* to agree with those that say that ads aren’t copyright-able, as facts. However, the pertinent law here is “threshold of originality” which basically states that certain factual works are not copyright-able, but advertisements are not one of them. Lots of case law exists but Wikipedia (if you subscribe to their acuracy) sums it up here: [en.wikipedia.org]

  29. FLConsumer says:

    Congrats Mal-Wart! The one time when people actually want to look at your adverts, you’re trying to prevent them from doing so. These websites are SAVING you money. It’s FREE ADVERTISING! So what if your competitors see it? You’re Mal-Wart, go browbeat your suppliers a bit more, you’ve made an art of out of this.

  30. aikoto says:

    Improper use of copyright aside, I agree that it’s bad to pre-circulate a store’s ad. Whether you support Walmart or not, a store needs to be able to keep pricing secret until it’s time for the sale.

  31. RandomHookup says:

    @Bay State Darren:

    No one intimidates Consumerist, cause they can call on our favorite superhero — her hottness Gabby Darbyshire!!!

  32. elf6c says:

    I imagine that this ends like the DVD unlock code fiasco.

    Anyone is free to post the information about the deals- scans of the actual flyers/images/text is subject to copyright protection.

    Walmart needs a better PR & legal team, as their current crop seem to be morely adept at shooting themselves in the foot. Why not work -with- the deal sites?

  33. Nytmare says:

    Maybe it is not copyrightable, but could it be considered a trade secret until the day it is officially released?

  34. Jean-Baptiste Emanuel Zorg says:

    @humphrmi: the pertinent law here is “threshold of originality” which basically states that certain factual works are not copyright-able, but advertisements are not one of them.

    This is true, but not complete. Advertisements are a compilation of facts that can be copyright-able, but it is the compilation that is protected, not the facts themselves. So all those folks saying “you can’t copyright facts” are exactly correct.

    If WalMart wants to block someone from reproducing any portion of their ad (like the scans someone linked to above), they have that right. But if they are sending legal threats to prevent websites from simply listing the prices, it’s barratry, plain and simple.

    Large corporations who misuse legal threats to bully people suck.

  35. MrEvil says:

    Trade Secrets laws I beleive only applies to employees of a company theat leak information or someone that has entered the company’s property under false pretense to obtain information unlawfully.

    If the deal sites obtain the circular through an anonymous source, or through a screw up at a store. It’s the employees’ problem they got that information.

    As far as copyright goes, the ad itself is copyrighted, but the pricing information is not.

  36. StevieD says:

    You all are ignoring a significant issue …. the assumption that the information being posted is correct.

    Wally World, like any other business, must take measures to prevent incorrect information from being presented as fact.

    Now we all know that advertising copy, especially for Black Friday is prepared well in advance (hence the source of the leaked information). Of course the leaking of information is making assumptions that Wally World is not going to make a last minute change in the products offered or the prices of those products. Wally World can and does make last minute changes. If the leaker is posting incorrect information then Wally World MUST take action to protect the public.

    If I was Wally World, I would make intentional errors in the early (leaked) information and then change prices at the last moment. Would yield a big ole nasty lawsuit that would be easily won.

  37. Consumerist Moderator - ACAMBRAS says:

    @StevieD:

    If the leaker is posting incorrect information then Wally World MUST take action to protect the public.

    I get what you’re saying about ad copy being prepared far in advance. But come on, do you REALLY think WalMart is so aggressively trying to stop leaks out of some magnanimous desire to protect the PUBLIC?

    Uh-uh — I don’t buy it.

  38. Mr. Gunn says:

    posting the scans makes it look real, but there’s no reason they couldn’t display the data in some other format, because until the circulars get printed, there can always be changes.

    In other news, is it that time again so soon? I’m tired of BF already.

  39. jrdnjstn78 says:

    I don’t see what the big deal is. It’s ok to post up the leaked ad on Nov.19th and BF is on Nov.23rd. That gives someone plenty of time to figure out if they want to buy crap at Wal-mart or somewhere else.

    These sites are not making a profit or anything off of posting these scans up.

    I belong to one of those BF sites and last year some other company did the same thing. A lot of people on that site decided not to go to that store because of that. I could really care less, I’m sure alot of other people feel the same.

  40. JAYEONE says:

    @humphrmi: don’t let that stop you! And can I sell tickets to your performance?