Eminent Domain - Brief Article

JAMES SUROWIECKI ON ETOYS VS. ETOY

IF THE GREAT ECONOMIC STORY OF THE PAST decade has been the transformation of the Internet from a public space of unbounded democratic possibility into an increasingly privatized realm that is fundamentally reshaping global commerce, then the recent victory of the Swiss art provocateurs collectively known as etoy over Net retailing powerhouse eToys in a battle over domain names may be a sign that the story is not entirely linear. In late November 1999, a California judge issued an injunction barring the artists from using the domain name www.etoy.com, in response to eToys' claim that the art group's website was damaging the online merchant's brand name. (Allegedly, some of eToys' customers had ended up at etoy's site and found something to be offended by, although, with the exception of one stray fucking" and a link to a porn site, etoy's content was hardly risque.)

Issuing the injunction was a remarkably ill-considered decision. The artists' group had first used the name etoy in 1994, and had registered the domain name in 1995, a year before eToys even existed. The governing principle of domain-name registration has always been first-come, first-served, and etoy's claim to what is, after all, its own name was seemingly unassailable. Furthermore, it's hard to see what "damage" etoy was doing, since no reasonable person could confuse the two sites and hold eToys responsible for etoy's content.

Not surprisingly, then, news of the injunction provoked an immediate response from the Net community. Almost overnight, dozens of anti-eToys websites sprang up. Old-school Net heads like John Perry Barlow, who called the controversy "the battle of Bull Run," came to etoy's defense. The press coverage, particularly on the Net, was uniformly antagonistic to the lawsuit.

At the same time, cultural saboteurs [(R).sup.TM]mark (www.rtmark.com), who have been responsible for projects ranging from the Barbie Liberation Organization to the GWBush.com website, stepped into the fray. In mid-December, [(R).sup.TM]mark announced a new project, which took the form of a game "whose goal is to damage (or possibly even destroy)" eToys by driving down its stock price. [(R).sup.TM]mark held a press conference at MOMA blasting eToys; suggested that people bombard investor message boards at sites like The Motley Fool with negative news about the company and write the company's board, eToys employees, and the press; and helped organize a virtual sit-in," an attempt to crash the eToys site by flooding it with imaginary visitors in the crucial shopping days before Christmas. While the "game" metaphor may seem coy, in fact it's a useful way of capturing the bottom-up, decentralized nature of the campaign against eToys. "I think this does provide a model of a successful activist response," says [( R).sup.TM]mark's Frank Guerrero. "It really used the strength of the Net, with a lot of decentered cells and no central intelligence, just a few people who kept communication channels open and tried to coordinate activity in a lot of different spheres."

[(R).sup.TM]mark at least implicitly claims that their "toy soldiers"' efforts more than halved eToys' share price, but there's plenty of room for skepticism on that account. Although eToys' stock did fall steadily throughout December, so too did the stock of almost every other Internet retailer, as investors became concerned about things like falling profit margins and out-of-stock goods at Christmastime. But the campaign undoubtedly did serious damage to eToys' public image on the Net, and the hacktivists achieved their practical goal: In late January, eToys announced it was dropping the suit and agreed to pay etoy's legal fees up to $40,000.

eToys (the Company with the big T) couldn't have picked a worse target to bully: etoy's work, which might loosely be described as Situationist in spirit, is explicitly interested in, among other things, pointing up the ever-increasing cultural and social power corporations have on the Net. In 1996, the group won an award at Ars Electronica for "Digital Hijack," a hack that rerouted inexperienced Web surfers from high-traffic sites to the etoy site as a way of dramatizing the central role search engines- all of them privately owned-play on the Web. Two years ago, etoy began to call itself a corporation and raised money for its activities by selling "stock." The daily share price was listed on etoy's website, in an effective detournement of the popular obsession with the stock market. And etoy's studiedly ironic obsession with the collision of commerce, culture, and the Net is echoed all over cyberspace.

One question this does raise is whether eToys might have been more successful if www.etoy.com had been the website of a Swiss skate punk rather than one operated by digital artists. "I'd like to think that it would have mattered just as much, because this was a very important case," says Wolfgang Staehle, head of thing.net, which played a key role in the etoy campaign. "But if it had been a biker gang, people . . . wouldn't have cared the same way. It wouldn't have happened the way it did."