Wednesday, December 15, 1999

|  | Trouble in eToyland |

13 December 1999: In a dispute that has many Europeans and free-interneters protesting, eToys, the U.S. online toy store -- valued at some $6 billion -- went to court in Los Angeles to close down a small art site, etoy.com, operated by a group of Europeans that has created anti-corporate art projects since 1994. eToys won a preliminary injunction shutting down the artists' site, and now a major boycott is threatened. The case is a dispute over a domain name -- but it is the opposite of cybersquatting. In fact, eToys, which owns the URL etoys.com, reportedly offered the European art group more than $500,000 in cash and stock for its etoy.com address. The artists refused. eToys went to court. the company's lawyers described the www.etoy.com site as pornographic, profane and confusing. They claimed customers were mistakenly logging on while trying to visit www.etoys.com during "the peak of the holiday shopping season." The giant toy argued the case wasn't a matter of free speech, it was merely trying to protect its trademark. "Our intent is not to debate artistic merit here. Our intent is to mitigate the confusion in the marketplace," Ken Ross of eToys told the Washington Post. Late in November, Judge John Shook issued a preliminary injunction and etoy.com disappeared. Fearing fines of up to $10,000 a day if they defied the order, the artists stopped using the domain name immediately. It has been replaced by a numerical site (see below) that is often overloaded. The action, however, predictably provoked a furor online, giving foes of commercialization and free speech advocates a rallying point. "The etoy injunction is a travesty, and the folks at eToys ought to be ashamed of themselves for misusing the law like this," said Shari Steele, a spokeswoman for the Electronic Frontier Foundation, angrily reacting to the injunction. "The artists at etoy were not competing with eToys and had their domain name registered years before eToys registered their own." Speaking to Wired from Zurich, an etoy spokesman called Zai -- the group's members do not divulge their real names -- said, "It's all about money, and they are just looking for a way to hurt us. They can do that in Los Angeles. I'm not sure they could do that in San Francisco. We definitely told them that we won't sell the etoy domain to them at this point. We need it for our work, and we built it." He concluded, "Etoy.com was our concept. Etoy.com was the art piece. Giving up the domain name will be the end of the art piece." "Artists should be free to do what they do," Wolfgang Staehle, director of The Thing, an arts-oriented bulletin board, told the New York Times. "I'm outraged at how the dinosaurs are trying to stomp all over us." He opened a site called Toywar (see below) to protest the legal action. To many, it appears to be a case of legal strong-arming, and many fear it represents a major step along the road toward the out-and-out commercialization of the internet. It's not a pretty picture: the big, rich American corporate bully vs. a small band of struggling European artists. A considerable backlash is already building. A boycott has started. Parody and protest sites have gone up. "It's outrageous, they're being bullied," Rachel Baker, a London internet artist complained to Wired. "I think this is something the net art community should really take a stand against. If corporations can go around behaving in that way, who is to say they can't strike again? Anybody who sets up a domain name is vulnerable to commercial organizations that don't want them to have that name." Here's how Online Europe,Online Europe, Europe's Internet Business Forum, moderated by Steve Carlson, saw the situation over the weekend: Does a rich, aggressive US Internet company preferential rights to a .com domain name? This is essentially what US Internet toy vendor eToys.com argued to a California court, claiming that the European art project eToy.com was violating their trademark. The court agreed. The eToys vs eToy dispute is particularly relevant as eToys has just launched their UK shopfront in time for the Christmas e-commerce rush. "In Zurich, eToy.com has had a strong presence since in 94 and I am very interested in this crowd's reaction," wrote Europemedia's Norbert Specker, opening up the topic. Jeffrey Baumgartner fired back: "If you think it is wrong that a newly established, filthy rich company has the right to take away the name of a longer established art site (and eToy strikes me as being one of the few Internet art sites that is really making a statement), then you should make it a point to boycott eToys. I certainly will." "The part I find interesting is the eToys lawyer's perspective below," wrote BiblioTech's Nabil Shabka, quoting the Village Voice: "'eToys's lawyer, Bruce Wessel, points to the fact that eToy is primarily European, claiming that simply because the group has registered with Network Solutions, a U.S.-based domain name company, doesn't mean it has a right to a top-level domain such as .com when its name is confusingly similar to eToys.' "Seems to me eToy.com should have gone back to him and said 'we have no problem with etoys having a US based site -- using .us, which is the US domain!" concluded Nabil. Norbert Specker wrote back offering a link to comprehensive list of protest sites and press coverage. "I do think it is very important to point out," concluded Norbert, "that this is not the odd case out. whatishappenin.com sued quepasa.com (spanish site, and yes, in Spanish "Quepasa" means a range of things but also "what is happening") for trademark infringement -- just to cite another example." One of the stated intents of etoy is to disrupt business. But, in this case, the shoe is on the other foot -- business has disrupted art. Related Information: Temporary etoy.com Site Toywar.com eToys Parody Site eToys Toying with Domain Names Wired EToys vs. Etoy: A Clash of Commerce and Art Washington Post EToys Lawsuit Is No Fun for Artist Group New York Times (Registration required) Links to 29 Press Articles on Dispute Open Directory Project |  |
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