Judge Says Copying Coupons is Not a Crime

If you visit a coupon website and use a coupon code that you find there, there’s nothing wrong with that. But what if you run your own coupon website, and cut-and-paste a coupon code from a competitor’s site? What if you set up automated systems to copy all of the codes to your own site? And then circumvent the competitor’s efforts to block you from doing so?

It’s a slippery slope – when exactly do these freely available coupon codes become legally protected assets, that the originator can come after you for sharing with others?

That’s what coupon code site CouponCabin asked a federal judge to determine more than two years ago, after it accused the owners of about a dozen competing coupon sites of stealing its coupons, including several that were exclusive to CouponCabin. Now, the judge has decided that copying coupons is not the same as stealing – to a point.

CouponCabin filed a lawsuit in 2014, after noticing its “unique content appearing on a number of competing websites,” including those run by Cox Target Media, the owner of Savings.com and Valpak.com, plus Linfield Media (the publisher of coupon sites PromoCodesForYou and Savemeister), Sazze (the owner of DealsPlus and others) and Internet Brands (owner of Ben’s Bargains, tjoos, Deal Locker, UltimateCoupons, Boddit and more).

Those publishers, CouponCabin alleged, were using “spiders, scraping programs and web harvesting programs… systematically acquiring data from the CouponCabin website” in order to place CouponCabin’s coupon codes on their own sites. And when CouponCabin tried to block them from doing so, it says the defendants merely “circumvented CouponCabin’s security measures in order to continue their data scraping activity.”

In responding to CouponCabin’s allegations, the defendants neither admitted nor denied that they were doing precisely what CouponCabin accused them of doing. Instead, they just insisted that, if they did, there was nothing illegal about it.

Coupon codes, like “facts”, are “not copyrightable,” the defendants argued, citing legal precedent that “because no person can claim the original conception of facts, they are excluded from copyright protection.” Even CouponCabin’s lawsuit never claimed its individual coupon codes are copyrighted, the defendants pointed out: “The only allegation about any work being copyrighted… is that ‘the CouponCabin website is an original copyrighted work,’ which is not alleged to be copied.”

And the judge last week granted the defendants’ motion to dismiss that charge, denying CouponCabin’s claims that copyright protections applied to its individual coupons.

That decision has got to sting Coupon Chief, which might have won a similar case had the company stuck it out. The competing coupon code site agreed to pay a financial settlement to CouponCabin back in 2009, instead of fighting a lawsuit alleging coupon thievery. “We do not feel that these vanity codes are a protectable asset,” Coupon Chief co-founder Gary Gray said at the time, “but we agreed to remove and prohibit coupons bearing certain coupon codes from our website in order to settle the matter in view of the cost of litigation.”

So the judge’s decision must mean that coupon codes are now free for anyone to copy, and pass off as their own!

Maybe not. The judge denied the defendants’ motion to dismiss the rest of CouponCabin’s claims, which took issue with how its coupon codes were copied.

If the defendants had visited the CouponCabin website like anyone else, and cut-and-pasted the coupon codes they found there to republish on their own sites, that may not have been a problem, according to the judge. But using automated systems to do it, even after being blocked from accessing the site, was a violation of the law, CouponCabin argued, and a violation of CouponCabin’s terms and conditions.

The judge allowed those parts of the lawsuit to proceed. So when it comes to copying coupons, it may not be what you do, but how you do it. Two years in, it seems this coupon code competition is far from over.