Posted by jamie on Friday December
03, @15:15 from the silenced-night dept. It's been a long week for etoy.com. On Monday,
a judge issued a preliminary injuction fining them $10,000 each day that
their website was hosted at their domain. They shut it down right away,
of course. They're just internet artists. They don't have six billion dollars
like the company that filed the suit:
eToys.com.
It's beginning to look a lot like Christmas. Click More.
Update:
For more information about etoy, see the freshly-updated
dmoz
category
etoy was founded in 1994 by a group of European
artists who worked on the cutting edge, doing performance art at techno
events and raves. Their focus has always been on the internet as new medium;
this
interview gives a feel for their perspective.
They picked the name "etoy" literally by consensus
and running code. Being from Italy, England, and Switzerland, physical
collaboration was difficult, so they got together on an IRC channel and
went through a list of random names generated by a perl script. When "etoy"
came up, they all knew that was the name they wanted; they first used it
in October of 1994. In October 1995 they put up their website at etoy.com.
Christmas 1995 came and went.
In 1996, etoy won their first artistic award.
Their work typically blurs the line between real world and art; in this
case, they had undertaken to demonstrate how important and yet how fragile
the system of search engines was. By subverting the meta tags of prominent
websites like Playboy, they pulled inexperienced surfers to their site,
where they put in a
plug
for Kevin Mitnick, and had a few laughs at the newbies' expense. They called
it the "Digital Hijack."
A curious kind of art. In 1996 it was original
enough to win an award from
Ars
Electronica. Nowadays everyone knows the trick, the search engines
find it and disregard it, and some underhanded websites try to make a fast
buck by stealing trademarks - but etoy did it first, for fun.
Christmas 1996 came and went.
In June 1997 etoys.com, with an S, began operations.
It wasn't until October that their website went online. They filed for
a U.S. trademark on their domain, at which point etoy got a little alarmed
and filed for
their
own trademark on their own domain. Maybe because they're based in Europe,
or maybe for some other reason, etoy says their application is still pending
on some technicalities.
But it doesn't matter when their trademark is
granted. Their website went online in October 1995, two full years before
etoys', and it's date of first use that's important - not the date of filing.
Christmas 1997 came and went.
Christmas 1998 came and went.
But now it's 1999, the year of the e-tailer. Suddenly
etoys.com, with an S, has gone public and is worth
six
billion dollars. Meanwhile etoy.com, without an S, again putting the
spotlight on corporations and society, has raised money by "selling shares"
of itself. I'm not quite
sure how they did it, but at an artists' gathering,
a half-serious, half-mocking exhibition-slash-fundraising they pulled in
something over ten thousand dollars. (Which they then donated to their
friends in the U.S., also working at the boundary of society and corporations,
RTMark,
best-known for their
George
W. Bush parody site.)
In the year of the e-tailer, what kind of speech
scares corporations more than anything? Disrespect. Artists who don't play
by the rules. People who don't understand that business is serious business.
Etoys.com, with an S, wants etoy.com, with no
S. They offered money. At one point they were offering cash and (mostly)
stock that would have been worth almost half a million dollars. No sale.
But that should give us an idea of how much they're
willing to spend on lawyers.
Finally, in September, eToys filed a lawsuit against
etoy, on the grounds that a potential customer had mistakenly gone to the
wrong site and had seen the message that - if they wanted to enjoy etoy.com
to its fullest extent - they should download "the fucking flash plugin."
They also didn't like the pierced breasts or etoy's sense of humor.
To be precise, they claim that "the antisocial,
obscene, and offensive images associated with defendants' use of the mark
'etoy,' both on the Internet and elsewhere, have tarnished the ETOYS®
mark and the eToys brand name..."
Let this be a lesson to anyone whose domain is
coveted by a multi-billion-dollar company: careful with the F-word.
In October and November the case was bounced from
an L.A. court to U.S. District Court, and finally to a California State
Court. In late November the judge refused a request to let the European
artists attend the proceedings by teleconference. In those proceedings,
the judge was told that the artists had engaged in "digital hijacking"
(the 1996 project), and had sold shares of stock without being properly
regulated on an official stock exchange (the 1999 fundraising exhibition).
Worst of all, they were hosting
illegal hardcore pornography (which
was actually just a link to another site).
They claim:
"Defendants use the mark ETOY indiscriminately
and in random association with unrelated concepts. For example, on the
etoy web site alone, defendants use the mark ETOY in conjunction with other,
randomly selected words to create phrases such as: 'etoy.research,' 'etoy.eternity,'
'etoy.timezone,' 'etoy.history,' 'etoy.servers,' 'etoy.strategy,' 'etoy.journeys,'
'etoy.universe,' and 'etoy.crew.'
"By using the mark ETOY in this random, indiscriminate
manner, defendants cause both ETOY and the ETOYS® mark to lose any
distinctive, signifying meaning."
Serious business.
The lawyers also kindly suggested that, since
at least one etoy member is from Switzerland, they really would be more
suited to a website in the .ch domain: etoy.ch. Never mind the years of
work and the reputation that the artists have built around etoy.com - we
all
know that "dot-com" belongs to America!
Faced with a torrent of buzzwords, the judge issued
a preliminary injunction barring etoy from: operating a website in the
etoy.com domain; associating their domain name with the "digital hijack";
or selling their "shares" in the U.S.
Penalty for disobeying the injuction: $10,000
per day in fines.
On November 30, etoy.com shut down its Apache
webserver. Its last access came from the eToys law firm (which has been
monitoring it closely). They had no choice, really. In fact, when I talked
with a member of etoy, he was very nervous about saying things which might
get him in more legal trouble. Suddenly, the artists are afraid to speak.
How can this be, when, as the Village Voice wrote
in an
excellent
article, this lawsuit doesn't even pass the "giggle test"? It's absurd
to think that one website can shut down another for having a
similar
domain name - when the second site is not a domain poacher and has been
operating two years longer than the first.
The date of the next court hearing, at which this
preliminary injunction will surely be overturned: December 27th. How convenient!
Just after the Christmas shopping season.
If you'd like to see more about etoy, their domain
is down of course, and I don't know of any mirrors, but their fans have
constructed a site at
toywar.com that
has some information. And etoy may put some or all of its site back online
at its IP number (not name!):
146.228.204.72:8080.
Good rules have been written to prevent things
like this from happening. Unfortunately, the rules have not taken effect
yet for most domains. Even after they do take effect, their legal status
will be uncertain until they are tested in court.
Those rules are ICANN's
Domain
Name Dispute Resolution Policy. This policy ensures that the conditions
under which a domain name can be disputed are strictly limited. For such
a dispute even to proceed, a complainant must assert that each of
three things is true:
your domain name infringes on a trademark;
you have "no rights or legitimate interests" to
your domain;
and your domain name is being used "in bad faith."
As long as you're operating in good faith, or you
have any legitimate interest in your domain, there is not even cause to
bring up a dispute over a domain. Clearly this puts etoy.com on firm ground,
because regardless of the trademark issue (which should be resolved once
their mark registration is granted) they win on the other two points. This
doesn't stop clueless judges from issuing injuctions, of course. But having
these rules codified as official policy will give the legal system better
guidelines to operate by.
These rules went into effect for some domain name
registries on Wednesday, but will not apply to the most popular registry,
Network Solutions, until January.
I can't even complain to eToys.com. I clicked
all over their website looking for an email contact address and couldn't
find one. When I filled in the web form to ask that someone get in touch
with me for this story, all I got was a email form letter:
It is our goal to respond to all order-related
e-mail within 24 hours. If your e-mail is not order-related, we will do
our best to take care of your questions, concerns and suggestions as soon
as possible.
It's 72 hours later, so my email must not have been
sufficiently order-related.
In the meantime, I can at least have the satisfaction
of taking my order-related business elsewhere this holiday season. I'm
sure eToys couldn't care less, but it will serve me as a small comfort
during the remaining 22 holy shopping days. In a world run by retailers,
e-tailers, and lawyers, I need everything I can get to help me make sense
of the bizarre orgy of spirituality-soaked commerce that serves as the
endcap of each year. Ho ho ho.
The
Fine Print: The following comments are owned by whoever posted them.
Slashdot is not responsible for what they say.
( Beta is only a state of mind
)
Timely and useful: Thank You Slashdot
(Score:5, Interesting)
by FreeUser on Friday December 03, @15:25 CET (#3)
(User
Info) http://jean.nu/
This is exactly the kind of timely and relevant
news I for one keep readhing slashdot for.
I have yet to start my Christmas shopping, and intend to do most of
it on-line (for my nefew, four nieces aged one to six, and various other
relatives). I probably would have wound up using etoys.com for at least
some purchases, but in light of these events I will make a point in not
doing so.
Those of us (in the US at least) conscientious enough vote every couple
of years. ALL OF US vote with our money (dollars, yen, euros, whatever)
every day. It is my profound pleasure to vote against the fucks at etoys.com
for what they have done this Christmas season.
Its all part of the American Empire. The US is the
functional equivalent of a world Empire - courtesy of their economic strength
and the US military which backs it.
Somehow we have let corporations become the law of the world. They have
greater rights than the individual - because they have more money than
that individual. This case is going to be *very* important - if Etoys.com
wins this, then the entire domain name scheme is meaningless. If I register
a good name, all that matters is how much money someone has if they want
to take it from me. And what about .net and .org? I own a .net and the
.com equivalent is registered to a company already, what if they dislike
my content, can they have me shut down? I sure as hell can't afford a lawyer
for more than a day.
In an equally meaningless lawsuit, and to show how patently stupid this
judgement is, if I were the folks at Etoy I would now turn around and sue
Network Solutions for selling them the Etoy.com domain when it was going
to violate another company's copyright only a few years after the sale.
Surely NS should have seen that, right?
It would make as much sense as this lawsuit.
Of course the biggest problem that the Etoy.com folks have is that their
not US citizens. Were they US citizens there would be much more of a public
and media outcry in the States, but since they are foreigners(sic) they
have less attention/importance/rights in the world.
I suggest we promulgate a complete ban on dealing with Etoys.com - and
try to convince as many other folks to boycott it as well. How 'bout a
"Why I don't shop at Etoys.com" graphic you can display on your website
and link to this story?
Perhaps a grass roots democratic demonstration of our collective displeasure
might garner some results...
Three stories in a row about big business screwing
over little people in a globalist setting. Very interesting. Throw in the
Co$ story, and ./ is becoming a dangerous, subvertive site that needs to
have some government agency shut it down before it causes some civil unrest.
Hear that FBI/BATF/CIA/WTO/etc? Something needs to be done about this
site! Think about the children!
Finkployd
Sig (appended to the end of comments you post, 120 chars)
This has been forwarded to my friends and family
not to shop there.
Now to the heart of the matter - we already know who's going to win
this one. The domain dispute policy will be amended to allow etoys to excercise
it's unfair domain grab, and in a few months nobody will care. That's how
it happened with dozens of other sites, modulo a few featured here on slashdot.
The question is, of course, why haven't we forcefully lifted control from
the government and InterNIC? We have the authority to reprogram our own,
personal DNS servers with whatever information we see fit. People are under
the impression that the internet will fall apart if we don't maintain The
One True Registry. Well... my vote is for The One True Democratic Registry.
We need a digital haven - some place on the planet where politicians can
stick a hot poker up their butt if they disagree with the content or purpose
of the site (or for that matter, greedy corporations). Freedom of speech
taken to it's logical conclusion.
My vote? Sysadmins of the world, unite! Form a second registry and
use it. In the meantime.. anybody know if there's a country around
that I can get enough access to kick of a "digital haven" - a country with
no laws barring any online conduct and outside WTO and US control?
--
"Why, oh why didn't I take the blue pill?"
There are always a few addresses
you can use... (Score:5, Informative)
by stienman on Friday December 03, @15:36 CET (#24)
(User
Info) http://www.ubasics.com/adam
I suppose that those who host their DNS info really don't have anything
to do with it, but it might be a reminder for them to know who their customers
*really* are if we sent a *very* polite email referencing this article,
and asking what their opinion of their customer's actions are...
DNS Servers:
NAME.ROC.FRONTIERNET.NET
NAME.PHX.FRONTIERNET.NET
NS1.IDEALAB.COM
NS2.IDEALAB.COM
PLEASE be nice in any and all communications with anyone! (Man, I wish
I didn't have to say that!) We can be nice and still express displeasure
in someone's actions.
-Adam
"Never ascribe to malice that which is adequately explained by incompetence"
- Napoleon Bonaparte.
Re:There are always a few addresses
you can use... (Score:5, Informative)
by Anonymous Coward on Friday December 03, @16:03 CET (#75)
For those of you in the US. Express your view via
voice, it will cost them more:
Customer Service Contact
If you would like to speak to a customer service representative about
your order, please call us at 1-800-GO-ETOYS (1-800-463-8697). We are open
24 hours a day, seven days a week.
Nice website you have there... it would be a SHAME if something
HAPPENED to it!
I'm not advocating this... But if all of the people who thought this
was unfair would start just ONE ping process pointing at etoys.com, it
would ruin their Christmas, too.
I was initially replying to this, but it was moderated down by the time
I finished writing my post.
Actually, this seems like a plausible non-violent way to deal with the
situation, and doesn't deserve the immediate down-moderation that it got.
For all the /.ers who think DOS attacks are automatically wrong, take a
look at how slanted this situation is against the little guy, and how the
courts seem to be willing to rule for profits and against common sense,
and think again.
If the powers that be had half a brain, we wouldn't have to think about
stuff like this. But they don't, so we do.
Liberal minded moderators... keep an eye out for stuff like this and
moderate it back up. We're part of /. too, and I for one don't buy the
party line that attacks on computer systems are automatically wrong. etoys.com
is using unjustifiable legal coercion, and they have no right to complain
if people retaliate with a different form of coercion.
I sent this to Jonathan Cutler, Public Relations
Manager (jcutler@etoys.com). If you disagree with eToys stance, I suggest
you do the same:
I have read recent reports of a case concerning the forced shutdown
of etoy.com by etoys.com. When I first heard this I thought it was nothing
more than a copy cat company trying to steal the thunder from etoys.com.
If this were the case I would have backed your decision to take up legal
action against etoy.com. However after reading what etoy.com was about,
I became quite surprised that a company such as yours, with so much money
in the bank would even care to take action against a site that is little
more than people doing experimental design and having fun on the web.
I think what eToys needs to realize is that the web is a FREE place.
Free in the sense of free speach. Unfair business pratice is one thing,
but the web has been, and will always be about Open Information for anyone.
The fact that etoy.com was running over two years before eToys.com and
the fact that is has NOTHING to do with eToys nor is it a direct threat
to eToys.com makes me wonder where your best interests are going after
and attacking them.
I'm not void of these problems myself. I work at a company trying to
make its name on the web, Imaginet.com, and we're doing VERY well on the
web. Imagine my surprise when I found out that the domain imagnet.com
was a porn site. But did we go after them to try to shut them down? NO.
Why? Because that's not fair and that's NOT RIGHT. You cannot sue someone
simply because they domain names are "similar".
I also own a personl domain, vitaflo.com. Vitaflo.com is an experimental
graphic design and open source information site. Now imagine that in a
year from now, someone sets up vitaflos.com, starts selling Farm equipment,
and gets rich off of it. Then someone goes to my website, sees a swear
word or some "unappropriate" material and then vitaflos.com tries to shut
me down. Would I be pissed? You bet. Would I fight it? Till the day
I died. This is exaclty what your company has done to etoy.com.
It makes me sad to see a company with so much potential throw so much
of it down the drain. You can be sure I will never shop at your site ever
again, and I have written to everyone I know to tell them the same (as
I'm sure many others have done that have heard this news). As the PR Manager,
I think it should be your job to keep the companies best interests in mind
in how it deals with the public. This is NOT in your best interest. You
will lose a lot more money playing the roll of "Bully" than you ever would
have by just ignoring etoy.com. I am hopeful this letter, and letters
like it, will help to reverse this aweful trend in online lawsuits that
has been occuring so much recently. Set the precident, be the one company
to actually LISTEN to its customers. We will all thank you if you do.
Posted by jamie on Friday December
03, @15:15
No
EToy for Christmas