Walmart Sends Us DMCA Takedown Letter For Slideshow

UPDATE: Walmart Wins Because We Fumbled

Walmart’s lawyers issued a takedown notice for the market research we posted on March 6.

The letter, posted inside, is dated for March 8th, the same day the AP article confirming the data published. That’s what we like to see, synchronized watches.

To see the slides, go the original post or download from one of these two sites:


Walmart Confirms Slideshow, Positively Spins “Conscientious Objectors”
LEAKS: Walmart PowerPoint On “3 Customer” Plan


Edit Your Comment

  1. Falconfire says:

    Too bad you cant DMCA presentation materials… they already ruled on that one when some other bunch of lawyer fuckups tried to invoke it on leaked material.

  2. bluebuilder says:

    Just a comment, but who signs their name in two different colors of ink???

    Besides Franklin B. Molin of course, oh and teenage girls.

  3. unbelievable says:

    I didn’t see any notices on that slideshow that claimed it was copywritten or proprietary in nature. IANAL, but I thought that proper notification was essential to receive protection.

  4. Ben Popken says:

    @Falconfire: Citation?

  5. bluebuilder says:

    @unbelievable: Well, you don’t actually need to say something is copyrighted for it to be copyrighted. There is an intrinsic copyright as soon as something is created.

  6. Art Vandelay says:

    Even if presentations are protected, the information on the slides is market research that Wal-Mart paid for and is proprietary, so I’m not sure you’ll be able to keep the presentation up.

  7. BotchedJoke says:

    So why don’t you go after Haliburton now? I mean they are smartly moving to Dubai to avoid the rath of the Marxists, errrrr deomcrats. I’m sure you could do a great job trashing them!

  8. rachmanut says:

    @bluebuilder: He ran out of ink. It happens to the best of us. Of course, being a fancy lawyer you’d think he could afford to go get another pen of the same color. But I guess not.

  9. kcs says:

    Fair use?

  10. bluebuilder says:

    @rachmanut: He was using a Wal-Mart pen. DOH!

  11. rachmanut says:

    FWIW, I’d refuse to remove the material and see if they really want to launch a lawsuit that will increase awareness of the material they want to cover up. But then again, It’s not my money they’d be suing for, so I won’t blame you if you decide to knuckle under. There’s no shame in losing the battle to win the war.

  12. TPK says:

    I wonder what dialect of English Mr. Molin speaks. He seems to have made a tremendous jump from “someone may want us to take it down” to “the editor posting the presentation was aware of the illegal and infringing nature of the post”.

    There are a lot of things I want to not happen in this world. That doesn’t make them illegal.

    It’s always amusing (well until it starts costing money) how these folks just make stuff up out of thin air and think people will accept it as truth.

  13. rbb says:

    Ben –

    Contact the guys over at They have plenty of experience with DMCA takedown notices from BB, Walmart, etc.

  14. Is it worth a mention to

  15. So what happens now, Ben? Do you keep it up, or do you take it down?

  16. Jon says:

    I hope Gawker sends another letter back saying they won’t take it down. Kind of like they did with the Lycos thing.

  17. VA_White says:

    Who saved every slide?

  18. Havok154 says:

    If he takes it down, Walmart can count on me not shopping at their business anymore. I don’t support people who sue over stupid crap. If you want something to be forgotten, you don’t make a big deal over it. C&D letters just make the material in question much more noticed by the public. Kind of like theat YTMD now thing with Sonic. I never would of saw it till Sega sent C&D letters to the site, then everyone posted about it. After that EVERYONE saw it.

  19. kimdog says:

    Congrats, Ben. This is some sort milestone for the Consumerist.

  20. WalkenTall says:

    While the presentation is protected by copyright, and reprinting it in its entirety is infringement, it seems clear that it’s a fair use and thus protected. They would be fools to sue you on this set of facts.

    This is unlike the situation where you were taking flickr photos, which was infringing and not a fair use. Glad you came to your senses there, although your ridiculous initial statements won’t help you if someone does actually sue you for infringement.

    this is not legal advice (my cya statement)

  21. lindyman77 says:

    Always low priced pens, Always! =D

  22. mopar_man says:


    I did. :D

  23. mopar_man says:

    If he takes it down, Walmart can count on me not shopping at their business anymore.

    But you still shop their despite them being the world’s biggest bully otherwise?

  24. peokuk says:

    The DMCA section seems like it isn’t being used as a reason to take it down but that could or would absolve Gawker if they do pursue a copyright infringement claim.…

    is the section they’re referencing, and IANAL.

  25. peokuk says:

    ah, and section (e) is interesting…

    MISREPRESENTATIONS- Any person who knowingly materially misrepresents to a provider that material on-line is infringing shall be liable for any damages, including costs and attorneys’ fees, incurred by the provider, by the alleged infringer, or by any copyright owner or copyright owner’s authorized licensee, who is injured by such misrepresentation, as a result of the provider relying upon such misrepresentation in removing or disabling access to the material claimed to be infringing.

  26. orielbean says:

    Ben, I would err on the side of caution here. Whether or not there is a clear-cut interest of the slide shows being protected somehow by fair usage, you and I both know that the big blue box could easily create all sorts of havoc and hassle for you and the crew.

    I would ask someone, like Jennifer of the EFF, for advice, but I would definitely take it down for now until you get better info on this. The market research in particular could easily be deemed confidential even if the actual presentation was not as a whole. Corey Doctorow would also have useful insight into the fair use section.

  27. ColoradoShark says:

    I work for one of those big three letter companies and if we have confidential stuff, every single page has the company name and ‘confidential’ on it. The lawyers make sure of it so no one can claim they happened to find the presentation without the coversheet and thought it was OK to publicize it.

    I only see “Wal-mart” once in the presentation and it doesn’t say anything about confidential on it.
    But, of course, IANAL.

  28. puka_pai says:

    So if I said I was planning on donating $100k to Ben, but now that he’s an infringing scumbag I’m not, they could be liable for the loss because of their misrepresentation?

  29. crankymediaguy says:

    Botched Joke said:

    “So why don’t you go after Haliburton now? I mean they are smartly moving to Dubai to avoid the rath of the Marxists, errrrr deomcrats.”

    So, you’re in favor of them taking all that money they got from NO-BID contracts and taking it to another country so they can avoid paying American taxes on it? You WANT your country not to get tax money it can sorely use for education, etc. from a scumbag company that fed our troops stale food and contaminated water?

    I’ll bet you think you’re a “patriotic American,” too, right?

  30. orielbean says:

    Ben, also the next step to take is defining your usage as fair usage here – your usage of the material is partly criticism, news reporting, etc. You aren’t looking to make money off of the research or embolden Walmart’s competition with this inside info. You could definitely raise a Fair Use defense. is a great resource for getting started. However – the BURDEN is on you to prove it is fair usage, and that is why most everyone simply removes content once they get a notice. The power of the law is not in your court, so to speak. Lawyer = $$.

  31. boonelsj says:

    For what it’s worth, I think Falconfire may have been referring to Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004). If that’s it, doesn’t seem too helpful.

  32. RogueSophist says:

    “You could definitely raise a Fair Use defense.”

    Yeah, um, maybe. Or you could consult Gawker counsel and not the Consumerist comment thread. I mean, clearly everyone’s a lawyer these days, but if you think the fair use defense is as simple as demonstrating critique and commentary, then you’re in for an unpleasant surprise. As I’ve commented before, the affirmative defense of fair use requires a delicate balancing of several factors.

    And, not that it applies here, but “fair use” under the DMCA is a different beast entirely. An invisible beast, some might say.

    This wasn’t legal advice. Back to writing cease-and-desist letters!

  33. acambras says:

    Note that they sent the letter via e-mail, fax, AND certified mail.

  34. bastarre says:

    @Falconfire: Didn’t Apple get their Peepees smacked going after bloggers who posted leaked information they claimed was proprietary/confidential. Screw Walmart.

  35. Falconfire says:

    Ben, DMCA was what Apple tried to use to get Nick dePlume to take down info around the start of that whole disaster in public relations if Im not mistaken, and the EFF helped him in proving that you cant DMCA training material. Also I believe they tried to invoke it in the printer ink case which was also ruled to be un DMCAable. Its a question of content, the only content the DMCA is ment to protect is film, tv and music on the internet, NOT corporate material which is what lawyers invoke it on mistakenly in the idea bloggers will just back down scared of the legal system.

    Its a dirty tactic but it was effective before more financially backed blogs started popping up with legal teams of their own.

  36. Falconfire says:

    bah either my post got eaten or the server is being a whore again, but basically yeah Apple used the DMCA on Nick dePlume along with trying to get him to divulge Apples leak, and had it thrown back in their face by dePlume’s legal team and the EFF with the judge basically ruling that bloggers = journalists and dont have to divulge their sources nor remove material that considered “confidential” or “trade secret”.

  37. mconfoy says:

    Three words — New York Times

  38. mconfoy says:

    I forwarded this link to the business reporter at the New York Times that covered Walmart recording their reporters. Let’s see what happens.

  39. BotchedJoke says:

    To Crankymediaguy:
    Let me just say your name fits your profession. I too work in journalism and am often “called on the carpet” due to being part of the.000000001% of journalists who are actually not left wing hacks.
    So do some “journalism” and research, you’ll realise that Haliburton is still a US company, beholden to US taxes, investigations by the democrat (ic) party and countless hounding by the great “journalists”. Of course people like you are emotion and hysteria based and can not seperate a fact from your ass. They earned almost 23 billion last year and prfits were 2.3 billion. What is APPLE COMPUTERS profit margin? What about TRADER JOES? Yea, we will never hear about that because they are adored by the left wing nuts in this country, btw, I only use Apple products for my computing needs, (as does the awsome Rush Limbaugh).
    One more thing, I am a patriotic American, I fought as a Marine in Gulf war 1 and am very proud of it. My dad and brother are still serving right now and in Iraq. Yes, I’m an evil “Gengis Kahn” type as John Kerry would say. I am glad you have the right to be so narrow minded and hateful of people that aren’t like you. Because with librels/journalists diversity and tolerance are only for the people and ideas YOU approve of.

  40. BotchedJoke says:

    As a vetren journalist and an actual military vetren, you, I think you are an idiot blinded by hate for any company that profits or America being seen in a positive light. Let me guess? you’re some bullshit small market line producer at a local tv station or some hit piece writer for any newspaper out there. Why do you hate American companies that make a profit? Try getting outside and enjoying life and take a break from the daily kos or move on .org. You sound like a touchy feely anti-American democrat librel. Isn’t tolerance and diversity part of you philosophy? Oh, as long as they agree with everything you say, sorry for the rhetorical question. I will say this again: Halliburton will continue to pay taxes here, (though not as much) still be open to countless “investigations” by the socialists in DC, and also be accountable to congress for not delivering on contracts if that is the case. I have to go out to dinner now with my new wife and treat her to a wonderful dinner in La Jolla. We are taking her Hummer H2, she looks great in it. Hey crankymediaguy, go get yourself a boyfreind and lighten up a little!

  41. Trai_Dep says:

    Yay! (sniff) My lil’ baby Consumerist is all growed up!

    (Looking forward to the next big milestone in Consumerist’s growing stages: the Homeland Security Waffen-SS raid & Ben doing the perp walk chained, langidly discussing ’70s hair styles, on behalf of Haliburton. Or the great city of Boston, whichever is stupider first)

  42. Falconfire says:

    We never hear about Apple and Trader Joe’s profits because they are not financial backers and profiteers in a war that was was started for made up reasons.

    No where they the ones who where selling things to our armed forces for 100%+ markups.

    THATS why Haliburton is investigated and probed, because their past activity has proven them to be a VERY evil evil company bent on nothing but profit at the expense of US tax dollars and many peoples lives (including soldiers who where ordered to protect Haliburton facilities while other companies in Iraq had to hire their own personal guards.)

  43. Ian S. says:

    Little off topic here, but lol at BotchedJoke and crankymediaguy. Last time I checked this wasn’t a thread about who has the better ideology and can sling more worn out and grossly over-simplified stereotypes. Cut it out.

    p.s. It’s spelled “veteran”

  44. xVAGUE says:


    No military VETERAN would vouch for Halliburton, none. Here’s some journalism for you-

    “…if an American company incorporates a subsidiary under the laws of a foreign nation, the subsidiary is no longer considered a “U.S. resident” under the tax code. Instead, it is considered a “foreign citizen.” This allows the parent corporation in America to avoid paying U.S. taxes on the foreign subsidiary’s income as long as the income is retained and reinvested outside the United States. Although the foreign income is taxable if sent (repatriated) to the United States, the U.S. parent corporation may repatriate such income at anytime it wishes, meaning it can avoid U.S. income tax INDEFINITELY.

    Congress reported that Halliburton owns 17 subsidiaries in tax haven countries, including 13 in the Cayman Islands, which has no corporate income tax, two in Liechtenstein and two in Panama.”

    If you consider yourself a patriot, then you’re a blind patriot.

    And I doubt a seasoned journalist would mispell veteran, not to mention an actual veteran.

  45. orielbean says:

    @Rogue – I think I prefaced my comments pretty well there – I was not telling Ben to simply wave a Fair flag and be okay. Obviously get a frickin lawyer if you care about keeping the material up there…Duh.

    I was making the point that if you were looking for a *starting point* to begin a defense, that is the first step in this. And I’m not a lawyer, duh. Cease and desist on the derogatory comments! :-( And I’m sure Mr. Popken wouldn’t hate on his commenters trying to assist and come up with a few ideas. We may be misinformed and misguided, but we are at least loyal!

  46. szamot says:


    sorry dude but you were /are “vetren journalist and an actual military vetren” for what hookt on fonix kindergardne klass of som sorta ting?
    And why is it that all closet turners, read fags, always think it is proper to insult a guy by trying to convince him to get a male date. If that is what turns your crank do it. I bet your wife is inflatable, you call her Ram-on and take “her” out only so you can use car pool lane. No? Shame on you for being so ordinary and uneducated in a county where anyone can be a president.

  47. PatrickIs2Smart says:

    Why does this Franklin Molin look so familiar?

  48. MattyMatt says:

    I wish EVERY website had a digg-down button for comments.

    Ben, I hope you’ll keep us updated on this attempted takedown if anything new happens. I do loves me some DMCA-fightin’.

  49. mconfoy says:

    We should be talking about this being another intolerable abuse of the DMCA.

  50. homerjay says:

    Well, its 7:18am tomorrow morning and the link is still working! OH, the balls on you people!

    Fair is Fair! We didn’t start this! We didn’t mean for this to happen! But we’re not giving up until you pay! FAIR IS FAIR! Run, Billie Jean! Run!

  51. hop says:

    what is DMCA????

  52. Ben Popken says:

    @xVAGUE: @BotchedJoke: @crankymediaguy: This comments thread is about the Wal-Mart DCMA. Continue your off-topic flames and you’ll be candidates for getting banned.

  53. Ben Popken says:
  54. Ben Popken says:

    @Ben Popken: *edit DMCA.

  55. xkaluv says:

    You have to wonder if they use the same “cost cutting” approach when they shop for lawyers.

  56. Atsukunare says:

    This should definitely be forwarded to for their analysis.

  57. Ben it might be time to take a page out of Gizmodo’s book and do some commenter executions :)

  58. sixsnowflakes says:

    I sure hope you manage to take that down as quickly as they got rid of those Nazi t-shirts.

  59. What makes this even funnier is they’ve shown this slide show at conventions with reporters present. I know I’ve seen most if not all of it before.

  60. Joe Clark says:

    A work isn’t more protected under copyright because it’s allegedly confidential.

  61. rhett121 says:

    @PatrickIs2Smart says:
    “Why does this Franklin Molin look so familiar?

    Remember me? Ned Ryerson? Ned Ned the head…got the shingles real bad?

    He looks like Stephen Tobolowsky from “Groundhog Day” with Bill Murray


  62. canuckistan says:

    I think you could just rename this blog “America is Fucking Retarded” and it’d still fit perfectly.

  63. Trai_Dep says:

    …I’m still waiting w/ baited breath for a description of Wal-Mart’s “conscientious objector” category. Without admitting that they’re more evil than a gaggle of 13 year old pagent girls picking on some poor fat kid.

    Maybe K&L|Gates can explain this in their next SLAPP letter?

  64. mac-phisto says:

    “Wal-Mart reserves all of its rights in this matter, including but not limited to sending additional notices of infringement.”

    there’s the strategy right there! they’re going to spam you into compliance! i bet they even started a mandatory letter campaign for all associates. by monday you’ll have 20 million cease & desist letters on your front porch!

    god i hate lawyers.