Wal-Mart Threatens Site Over Black Friday Ad Deals

from the didn't-we-do-this-already? dept

Want to know how we know the holidays are coming? It’s not the Christmas decorations already showing up in stores; it’s the annual ritual of retailers threatening any website that posts the deals from their “Black Friday” (the day after Thanksgiving) sales circular prior to that day. Last year, Wal-Mart went beyond what others stores had done, in pre-threatening sites. In the past, companies like Target and Best Buy had simply threatened to sue sites after the ads went up. But Wal-Mart took it a step further and threatened to sue before the ads even went up, ignoring, of course that they don’t own pricing data. The data on sales prices are not copyrightable and cannot be owned. Wal-Mart simply has no legal leg to stand on in demanding the data from the circular be taken down.

But why let that stop them? An anonymous reader alerts us to the fact that Wal-Mart is already sending the notices out to various sites, threatening legal ramifications if the sites were to post the prices prior to the date Wal-Mart makes them “official.”

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Companies: wal-mart

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Comments on “Wal-Mart Threatens Site Over Black Friday Ad Deals”

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BTR1701 (profile) says:

Re: Re: Re: Come on

> > How is this a Bush doctrine. Please
> > explain with facts.

> Did you mean like Bush telling us Al-Queda
> and “Nukyoolar” weapons factories were in
> Iraq prior to his invasion thereof?

And which has absolutely jack-all to do with baseless legal threats from Wal-Mart to bargain-hunting web sites.

I’m no big fan of Bush, but there’s a certain lunatic contingent of people out there who blame the man for absolutely everything negative in the world.

I swear to god if NASA announced tomorrow that they’d detected a asteroid heading for a collision with earth, these people would instantly chime in on how rogue celestial bodies are all George Bush’s fault.

Carpe says:

Re: Come on

I’m no fan of the dubya, but GWB has nothing to do with this article. You might as well have said, “This is the real Siberian doctrine.” Equally as obtuse. Is Wal-Mart a turd? Certainly. Is preemptive legal action daft in this situation? No argument. Does this article have anything to do with anything other than Wal-Mart and the sites who are putting out black Friday pricing? No.

erica varnadoe says:

Re: Come on

The “Real Bush Doctrine”? And what planet are you from? Lots of large companies and little people as well, use lawyers as thugs to threaten people/companies. This has gone on longer then before Obama be-friended terrorists! Hell, even obama uses lawyers to threaten banks into making loans to lazy deadbeats who were never likely to pay the loans back!

I’m not a fan of Bush either, but lets try to be fair!

Justin S says:


I love it when this stuff comes out and people say stuff like… “F^c7 Walmart… I wont shop there” and when cheap ass go time comes, viola, we end up in walmart because it’s cheaper. Hell I do it too… lol. Happy shopping to all.

P.S. You guys are dragging this political discussion out. That is what they want.

pilotman28 says:

Don't get it

What I don’t get is why they’d be P.O’d because if I knew wal-mart was going to have better sales than another store this far ahead it might make more people go. Marketing is marketing and in that light this may be just them trying to get more press to those sites in an attempt to have more people look. Nothing is ever more intriguing than that which you can not touch.

Anonymous Coward says:

Walmart can threaten anyone they want – they can support gays, they can hate homosexuals. They can support stem cell research or actively state that abortion is murder. Honestly, I don’t give a flying Fcuk because I can buy spaghetti and a chainsaw while I get my fishing permit in the same store, cheaper than most other places. I don’t really give a hoot about their moral platform in the least. I just want the smiley face to knock down prices (even if it is from $3.99 to $3.87 – that’s still $.12 in my pocket. If I give this article 2 of those, I’m still up a dime)

erica varnadoe says:

Re: Re: Smiley Face price reduction

Yes, and we all know that non americans would much prefer to pay really high prices and know that the foreig labor work force was very well paid, at the similar wages that would be paid in the USA. Oh wait, then those evil companies might just do the work at home in the USA. Then the cheap foreign labor would no longer be explotied. AND OF COURSE THEY WOULD BE UNEMPLOYED!!!! Some $$$ is better then no $$$!!!!

But of course they could always go to france! (or be an obama activist)!

Rosie says:

Threats aren't the only problem

The real pain – and motive – here is that it doesn’t matter whether the suit has any legal foundation. Big corporations have deep pockets to pay legal fees, and can make the lives of smaller companies (or individuals, as seen with the RIAA lawsuits) grind to a standstill, and bankrupt them while they’re trying to counter a suit that has no actual merit. They draw out these lawsuits for years, and people or companies with few resources simply can’t afford to fight back.

It’s just plain and simple bullying. The mere threat of a suit in today’s economic climate is enough to effect the desired action.

hegemon13 says:

Re: What about adscans

They are absolutely subject to copyright. The ads are Wal-Mart’s expression of the pricing data. Could be they own copyright on some of the ad’s photographs, too.

On the other hand, this is FREE publicity. Suing someone willing to give you free advertising is pretty dumb. If they are worried about upcoming ads slowing down current sales, then there is an easy solution: don’t send out information about the Black Friday sales until closer to the event.

Hugh Mann says:

Trade secret

Price data CAN be a trade secret, if the idea is that it gives them a competitive advantage, and they take reasonable steps themselves to keep it confidential.

Once Wal*Mart publishes the info, though, it’s no longer secret (obviously), and is not otherwise protected by copyright.

So, if this pricing data is posted by someone who got it legitimately (e.g., in their own newspaper), and was just being ambitious in getting it posted online, that’s likely not something that can be stopped by Wal*Mart. However, if the way it gets posted is by someone who “misappropriated” the data (e.g., an employee leaked it), Wal*Mart may very well be able to succeed in a legal action against the wayward employee and anyone downstream who knew or should have known the data was supposed to be kept secret.


Hugh Mann says:

Re: Trade secret

I looked at the letter over at BlackFriday’s site. Basically, it puts BF on notice that if they get the Wal*Mart ad before 24 November, BF will have gotten it via improper means on somebody’s part (not necessarily BF themselves, but someone in the chain from WM to BF).

They also noted (correctly) that the ads themselves are copyrightable works – not just the data, but the actual circular with the pictures and so forth.


John (profile) says:

Can we stop with Black Friday

I think this site is a good place to finally stop the idea of “Black Friday”.

From Snopes.com:

Claim: The day after Thanksgiving is the biggest shopping day of the year in the U.S.
Status: FALSE

“It’s one of the busiest days in terms of traffic but not in sales.

The result is that Black Friday nearly always ends up ranking below the last Saturday before Christmas (or December 23, if Christmas Day falls on a weekend)…

“According to statistics published by the International Council of Shopping Centers (ICSC), the top shopping days for the years 1993 through 2002 were: [between Dec 19 and Dec 23]

“For those years, “Black Friday” held the following positions in the ICSC’s rankings of year’s busiest shopping days: [#4 to #8]”

cliff corson says:

use of information from upcoming ads

as a departmental person in retail i can say there are many reasons why stores will sue lawyers to put the various “black friday” sites on notice.

first off the companies that are contracted to print the ads for stores are under non-disclosure agreements about the information in the ads. this means any employee of that company that removes or gives the info out early can have drastic conditions for that company

next there are also the fact that there are multiple prints for the same ad. as some regions/local areas/states have slightly different product assortments there can be as many as 2 dozen different versions of the same ad — each is for a specific area. if you check out various web sites and type in different zip codes for different states you’ll see slight differences.

also there are some folks who suffur from “buyers remorse” and will purchase items then get upset when they see them on sale next month or in a few weeks. they in turn return or bully the stores to give them a refund the difference on the item that they purchased. the same occurs with clearance merchandise.

also with some “black friday” items being in short supply there are some folks that will buy those items and then come back for price adjustments when the same occurs.

the information on the ads can be used by competitors to :get a leg up” on the competition by seeing an item on sale and lowering their price to either force the original retailer to lower their price or make that company seem higher in the visual look


BTR1701 (profile) says:


If I were one of these site operators, next year I’d preemptively send Wal-Mart a letter saying that “In anticipation of your yearly round of baseless legal threats, we’d just like to highlight the current state of copyright law for you and outline for you exactly why you have no case whatsoever against us”, then proceed to list the case law and statutes that apply. “So if you feel the need to send out your bogus warning letters again this year, go right ahead, but be advised they will be completely ignored. And any legal action initiated by you on this matter will be met with a countersuit in response, alleging abuse of process, accompanied by a motion for sanctions and attorneys’ fees.”

Hugh Mann says:

Re: Ridiculous

Yeah, well, that would be pretty worthless, since the letter from the WM folks to BF didn’t mention copyright except in the context of posting the actual ads – so an allegation of copyright infringement would not be “baseless”.

Further, the letter also put BF on notice that if they get the ad early, it’s only by improper means on someone’s part, so BF should know to not pass it on. Again, an allegation of misappropriation of trade secrets under such circumstances would not be “baseless”.

Of course, once the ad is public, merely repeating the data (i.e., only items and prices, but not including the photos, descriptive text, etc.) is neither a copyright or trade secret issue.


BTR1701 (profile) says:

Re: Re: Ridiculous

Pricing data alone does not meet the elements of “trade secrets” under the law. The process by which they come up with the prices (e.g. if it’s some algorithm or software that generates them) very well could be a trade secret but the pricing data itself does not meet the legal threshold.

As for being “on notice” that anyone who tells them what price a DVD or a garden hose will sell for at Wal-Mart after Thanksgiving will have improperly obtained that information– well, that’s not anyone’s problem but Wal-Mart’s. It’s not my job to enforce some company’s OPSEC for them.

So yes, Wal-Mart’s claim is baseless.

Anonymous Coward says:

Re: Re: Re: Ridiculous

“Pricing data alone does not meet the elements of “trade secrets” under the law.”

I hate to be the one to break the news, but pre-release product pricing has been subject to trade secret law under the Restatement of Torts 2nd, the Restatement of Unfair Competition, the Uniform Trade Secrets Act, common law, state statutes, federal statutes, etc.

charlotte (user link) says:

Wal-Mart & other retailers Deceives you into thinking you got a holiday sale

I was really angry that i waited for the sales, only to find out instead of getting a sale all the prices were jacked up. I wrote a story about it in my blog, feel free to check it out. This year was really disapointing for consumers to say the least. You can use my article any way you want if you like, re-post it, link it – I dont care, as long as people find out the truth.


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