Felix Stalder, Toronto

Toywars etoy, a collective of European Internet artists, lost the first round of
its battle with eToys, the Santa Monica, CA based online retailer. On
November 29, 1999, judge John P. Shook, Superior Court of the State of
California (L.A.), issued a preliminary injunction which prevents the
artists from doing the following:

1. Operating a web site with the domain name www.etoy.com;

2. Using, displaying or otherwise exploiting in anyway the domain
name www.etoy.com in connection with the digital hijack;

3. Selling, offering to sell, soliciting offers to purchase shares
of unregistered shares "etoy stock" to any person in the United
States or in California;

4. Representing that the mark etoy is a registered trademark until
and unless a registration for said mark is issued.

This preliminary injunction, backed by a $10.000/day fine for
noncompliance, vindicates eToys.com's claims even though the accusations
normally "wouldn't pass a giggle test", as the Village Voice [1] wrote.

The main motive behind the retailer's attack is clearly visible: the fear
of loosing customers who mistype the URL. To illustrate the dangers that
the artists pose the retailer's business, eToys presented a letter from an
outraged shopper: "My grandson was looking for toys for his birthday and
brought this to my attention. Are you completely nuts. What an
irresponsible thing to show young children. We will never buy from you
again." What had happened was that the boy hit the etoy site where he was
offered with the navigational choice to "travel the old fashioned way
(html only)" only to be told on the next page "We do not support the old
fashioned way . . . get the fucking flash plugin!" A rather simple joke but
eToys didn't laugh, it filed a law suit.

The facts of this case couldn't be more clear. etoy registered its domain
name in October 1995, more than two years before eToys which registered its
domain in November 1997. At that time etoy had already achieved
considerable notoriety and turned its domain name into a "brand." For its
pioneering online performances etoy received wide recognition in the art
world (among others, in 1996 the Golden Nica, the Ars Electronica price
for best Internet art). Thus, etoy cannot be accused of cybersquatting --
registering a domain name with the intent of selling it to a legitimate
trademark holder. Given etoy's clear indication as an art project, it is
also difficult to charge it with maliciously confusing visitors about the
real nature of the site. Unless, and this is what makes this case so
outrageous, if challenging the viewers preconceptions is considered
malicious in itself. And this is exactly the reading eToys wants to
enforce.

Rather than viewing the site in its proper context, eToys' lawyers
interpret everything literally. "Fucking", then, is no longer a commonly
used expletive, but it's the description of a pornographic act. So is the
image of a female breast pierced with acupuncture needles and the caption:
"It's the same wind that pollinates the flowers that destroys the house."
Digital hijack, a project used to demonstrate, a few years back, how easily
search engines could be spoofed and how primitive the algorithms were that
created the ranking of the search results, is now nothing but terrorism:
hijack. Selling shares for the etoy.Corporation--a statement that plays off
the status of Internet-based art which cannot produce objects suited for
the art market as well as off the increasing commercialization of the
Net--is now portrayed as securities fraud.

Given that each of these "shares" is a uniquely designed poster, almost
half a square meter in size, this charge is preposterous. But so are the
others, individually and even more when taken together. Trademark issues do
not mix with child protection which has no connection to securities fraud.
While these arguments seem incoherent, they resonate well with two very
strong currents in contemporary American culture: the paranoia of child
abuse and the popular obsession with playing the stock market. etoy is
branded as violating the rules in both areas. But these are only skirmishes
to gain an easy injunction, the real issues are to be found somewhere else.

What is at stake here is the following: Can a powerful corporation, eToys'
market capitalization floats somewhere around $6 billion, push aside any
initiative, regardless of its legitimacy, simply because it is likely to
impact negatively on the all important bottom line? And it's not the case
that etoy suddenly sprang out of nowhere, threatening an established
company. When eToys registered it domain name and decided to build a
business on this name, it would have been due diligence to check out
activities of the neighbours, etoy. This court case is not about unfair use
of domain names, or child protection, or securities fraud, as eToys wants
to play it. It is about an attempt of big business interests overrunning
all other interests and (civil) rights and transforming the Internet into a
medium as tightly controlled and business-dominated as commercial TV.

This case could set a consequential precedence for two issues. First, what
set of legal rules does apply to such conflicts, Californian, US federal,
or international law? This is far from clear at the moment. On the one hand
there is ICANN [2], the international organization set up to regulate the
development of the domain space. Their Uniform Dispute Resolution Policy,
which has been passed but is not yet enacted fully, seems to support the
legitimacy of etoy's use of the domain name. But this legislation has yet
to be tested in court. On the other hand, the US Senate has passed, as part
of the Satellite TV Viewers Act, regulation that will permit to bring
everyone to court in the country where the domain name has been registered,
that is, in the US for all .com, .org, and .net domains. How these two
regulations relate to one another, or how conflicts between them can be
settled, is unknown and likely to be established in very long and expensive
litigation. Good for lawyers with corporate budgets, bad for artists.

The second, and most fundamental, issue is about freedom of speech. Is
Internet content in general, and domain names in particular, protected by
the first amendment or can deep-pocketed claimants use fuzzy terms such as
"trademark dilution" to get their way?

So far, etoy has been defiant. They rejected an offer to sell its domain
name for US$ 530'000 (most of which would have been paid in volatile eToys
shares). While this might seem like a lot of money, in the Internet world
of inflated prices, this is peanuts in relation to the $ 7.5 million that
eCompanies paid recently for the generic domain name business.com.

etoy is still online and accessible, but only through their IP number
http://146.228.204.72:8080. But this is not enough. etoy is determined to
fight for its legitimate domain name. In the meantime, a fast growing
network of supporters, the TOYWAR.community, has created a site,
www.toywars.com, to support their struggle. To finance its rising legal
costs, etoy is still selling shares of its project, though, at the moment,
not in US, the land of the free.

Judge Shook, very accommodating for eToys, has set the next date in court
for December 27, 1999. The injunction could be overturned, but by then the
all important Christmas shopping season will have passed without further
interruption and outraged grandfathers.

[1] http://www.villagevoice.com/issues/9948/barliant.shtml
[2] http://www.icann.org

http://146.228.204.72:8080
http://www.etoys.com
http://www.toywar.com

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Les faits sont faits.
http://www.fis.utoronto.ca/~stalder