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STORES FURIOUS OVER WEB SITES' EARLY POSTING OF SALES PLANS

Want to know what Sears, Wal-Mart and many other major retailers are planning for their annual day-after-Thanksgiving sales?

Check the Web.

Most stores haven't put out their circulars yet, but the deals they are planning have already been posted on the Internet.

This has many retailers fuming, and several stores have threatened legal action against the Web sites where the sales information was displayed.

"There were some sites that had information that belonged to Wal-Mart that was not released by Wal-Mart," said Tom Williams, a spokesman for the Bentonville, Ark.-based company. "We didn't think that was correct, and we notified those sites."

Wal-Mart contacted seven or eight Web sites and asserted that the posting of its sales information was a violation of the 1998 Digital Millennium Copyright Act. The DMCA is a controversial law usually invoked in cases that involve trying to break encrypted computer data or reverse-engineer software, which involves examining computer code in an effort to figure out how it works.

The Web sites where the sales lists were posted are frequented by bargain hunters. They often post discount coupon codes or have forums where users share tips about good deals.

Several of the sites, including FatWallet.com, complied with Wal-Mart's request, rather than risk an expensive legal fight.

"While we believe that sale prices are facts and cannot be copyrighted, we have made the business decision to comply with the DMCA notifications," wrote Tim Storm, who runs the FatWallet.com Web site.

The day after Thanksgiving is the traditional first day of the holiday shopping season, and many stores offer one-day sales to lure customers. That day is sometimes called "Black Friday" because it's the day when the stores can count on being "in the black," or profitable.

About two weeks ago, these "Black Friday" lists began showing up on Web sites that offer information and tips about sales and other bargains.

One particular list details the sale prices of hundreds of items at various stores. The postings are not the circulars themselves, but rather a long list of typewritten entries that detail the product, sometimes its model number and specifics of the sale. The author or authors do not identify themselves, and it is unclear how they got the information.

A Wal-Mart spokesman said the company doesn't know how the sale information was obtained, but the company insisted that at least one Web site hand over the identity of the person who posted it, according to Lars Lebers, who runs DealExpert.com, another bargain hunter's site.

The Black Friday list sometimes goes into great detail. For example, Wal-Mart supposedly will have a 27-inch TV on sale Friday from 6 a.m. until 11 a.m. for $148.62, according to a list posted on a Yahoo discussion group. The same list says that Best Buy will offer a DVD player for $39.99 after rebate.

The stores have not challenged the accuracy of the lists, but they consider the information secret and its release harmful to the stores.

"There was information that we believed to be proprietary that revealed trade secrets," said Paul Capelli, a spokesman for Framingham, Mass.-based Staples. The office-supply store is among the retailers that threatened legal action against the Web sites.

". . . the premature disclosure of this information that related to potential future sale items could have a serious adverse impact on Staples' business," he said.

Capelli declined to say what sort of harm could come from the early release of the store's sales plans.

Legal experts say it's questionable whether publishing prices of upcoming sales does indeed violate copyright law.

"The copyright claim here, without knowing all the facts, looks weak," said John Ottaviani, an intellectual-property attorney for the Edwards & Angell law firm in Providence.

That's because items that are facts cannot be copyrighted.

"While you can copyright the presentation of your information, the way you organized it, you cannot copyright the facts themselves," said Timothy Smith, a media attorney and a journalism professor at Kent State University.

Had images of the circulars themselves been posted, that could have been deemed a copyright violation, he said.

That doesn't mean the Web sites, or those who posted the material, have no liability.

"The person who originated the posting could be liable for stealing the information," Ottaviani said. And if a Web site owner knew trade secrets were posted on its site and did nothing about it, that owner could face legal action, too.

Some Internet users are siding with the retailers. One person, who goes by the online name "Susanna," said she is a Wal-Mart clerk.

"Posting Wal-Mart sale prices early causes masses of people to descend on my store out of the blue, makes my job harder, and causes Wal-Mart's profit margin to shrink, which impacts my salary. I have children to feed."

But most opinions side with the Web sites, and blast the retailers for using strong-arm legal tactics to wipe out the Black Friday postings.

"Ksquare" responded to Susanna: "Posting Wal-Mart sales prices increase in-store sales, which helps guarantee you have a job! It has been repeatedly shown . . . that 'loss-leader sales' improve in-store sales and profits. Otherwise, what corporate entity in their right mind would continue any marketing practice that reduces profit?"

Despite the stores' efforts, it may be impossible to squash the sales information on the Internet. Several users have copied and posted it to other Web sites. Some started a discussion group on Yahoo, where the list could still be downloaded Thursday in two different formats.

The group had 3,700 members as of Thursday afternoon. One of them, "Coop1979," issued a battle cry yesterday:

"Please don't let misuse of the DMCA kill the Internet -- spread word of this group to everyone! 3,000 strong so far!"

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