<nettime> (fwd) Jamie McCarthy for Slashdot: No EToy for Christmas

[t byfield <tbyfield@panix.com>]

<http://slashdot.org/yro/99/12/01/2156208.shtml>

No EToy for Christmas

Censorship 
Posted by jamie on 1999-12-03 14:15:00
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. 

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
ETOYSŪ 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 ETOYSŪ 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. 

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

[and a response in the slashdot thread]

There are always a few addresses you can use...

(Score:5, Informative)
by stienman on 99-12-03 9:36 EST
(User Info) http://www.ubasics.com/adam

There are always a few addresses you can use...

admin@etoys.com
abuse@etoys.com
sales@etoys.com
legal@etoys.com
webmaster@etoys.com
hostmaster@etoys.com

And, of course, they would be more impressed if we snail-mailed
them and *gasp* called them or faxed them:

eToys
3100 Ocean Park Blvd., Suite 300
Santa Monica, CA 90405
US

Administrative Contact:
- Admin, eToys 
- admin@ETOYS.COM
- (310) 664-8100 Voice
- (310) 664-8101 Fax
Technical Contact, Zone Contact:
- eToys HostMaster 
- hostmaster@ETOYS.COM
- (310) 664-8100 Voice
- (310) 664-8101 Fax
Billing Contact:
- Admin, eToys 
- admin@ETOYS.COM
- (310) 664-8100 Voice
- (310) 664-8101 Fax

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

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