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No EToy for 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. Hohoho.
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.
The Future of Human Evolution: Autonomy
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
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?
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
"Never ascribe to malice that which is adequately explained by incompetence" - Napoleon Bonaparte.
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.
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...
"The first time I got drunk, I got married. The second time I bought a chimpanzee, after that I stayed sober" Arian Seid
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.
Thank you for your time,
-Brent Gustafson