Is "Everything 10% Off!" creative expression?

If you accept Jack Valenti's arguments, you believe that no creative work will ever be produced in this country unless copyright protection is a couple of generations long. But not even Jack would argue that a bunch of post-turkey sale information constitutes "creative expression."

Yet Wal-mart and other retailers invoked DMCA to force small small websites like FatWallet.com and MyCoupons.com to delete news about post-Thanksgiving sales, Amy Harmon reports in the NYT today. The sites complied -- small wonder: under DMCA, Web publishers are immune from prosection if they remove offending material immediately after notification.

According to Wal-Mart: "We believe copyright covers a compliation of fact." This on the heels of the Supreme Court ruling in the phone book case that a compliation of facts is not copyright protected. "It's out data about our products ... and we don't want customers confused."

Outrageous? Consider this: Not only did Wal-Mart demand removal of the facts, they wanted to know who leaked the information to MyCoupons. Site owner Jason Wolfe declined.

Would Wal-Mart consider suing the NYT or any other offline news media for publishing facts received legally, regardless of whether the company agreed with the timing of the release? Not in a million years. Yet under DMCA, Web publishers are compelled to remove true information upon receipt of a letter invoking DMCA.

Is the Web less worthy of First Amendment protections than other media? Sounds like a Constitutional challenge to DMCA to me. Memo to MyCoupons and FatWallet: Call EFF.

thoughts?