Black Friday Ads: the Prequel

From Wendy Seltzer over at The Chilling Effects Clearinghouse...

For many years, major retailers have complained about the online posting of their post-Thanksgiving sale prices, generally protesting the previews that appear online even before the circulars hit the papers. The so-called "Black Friday" sales, on the day after Thanksgiving, often feature deep discounts and limited quantities of "hot" items, so bargain-hunters like scoping out the deals online. Major retailers say they'd prefer people found the sales the old-fashioned way, in the newspaper or perhaps on the stores' own websites. In past years, Wal-Mart, Target, Best Buy, Linens 'N Things, and Staples, have all fired off complaints. See Black Friday

In the past, they've used copyright claims, which fit poorly with the posting of price compilations. Copyright doesn't protect facts or ideas, only original expression. Yet the stores were trying to squelch pre-announcement of facts: the prices they intended to affix to items, not any expressive element of the circulars' graphic design or its arrangement of items. Copyright claims probably looked attractive because they pull in the DMCA Safe Harbor Provisions, DMCA notice-and-takedown procedure , giving reason for the service provider to disable customers' sites. See Chilling Effects' collection: Bargain Shoppers Chilled by Retailers' DMCA Threats.

This year, Wal-Mart has taken action even before the Halloween pumpkins are carved, sending pre-notifications to websites that have posted Black Friday ads in the past. For example, Wal-Mart Pre-Warns Against Early Black Friday Ads.

Why the pre-notification? Does Wal-Mart just want to add a bit of chill to the unseasonably warm fall? Does the retailer want sites to pre-screen user-posted content? Do the notices have any legal effect?...

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