Fun_People Archive
3 Dec
Etoys.com Takes the Low Road

Content-Type: text/plain
Mime-Version: 1.0 (NeXT Mail 3.3 v118.2)
From: Peter Langston <psl>
Date: Fri,  3 Dec 99 12:58:04 -0800
To: Fun_People
Precedence: bulk
Subject: Etoys.com Takes the Low Road

X-Lib-of-Cong-ISSN: 1098-7649  -=[ Fun_People ]=-
X-http://www.langston.com/psl-bin/Fun_People.cgi
Forwarded-by: Mark Boolootian <booloo@cats.ucsc.edu>

[The below article was posted to Slashdot today.]

---
Etoys.com Takes the Low Road

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.

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.

© 1999 Peter Langston