<nettime> eToys vs. eToy: A Clash of Commerce and Art

[alberto@null.net]

EToys vs. Etoy: A Clash of Commerce and Art

By Richard Leiby
Washington Post Staff Writer
Friday, December 10, 1999; Page E01 

In the frantic battle for holiday shopping dollars, the upstart Web
retailer eToys.com has emerged as one of the winners of the Santa Wars.
But in an equally fractious corner of cyberspace, the company is facing a
boycott by critics who portray it as a Scrooge whose lawyers forced a
small, Internet-based artists' collective to shut down its award-winning
Web site. 

EToys, which has a nearly $6 billion stock market valuation, went to court
in Los Angeles last month after failing to persuade Etoy, a European group
that has created anti-corporate art projects since 1994, to sell its
Internet domain name--despite an offer of more than $500,000 in cash and
stock. The toy company's lawyers described the www.etoy.com site as not
only pornographic and profane but confusing to customers who mistakenly
logged on there while trying to visit www.etoys.com during "the peak of
the holiday shopping season." 

To the toy company, the case wasn't a matter of free speech, but of
protecting a trademark. "Our intent is not to debate artistic merit here.
Our intent is to mitigate the confusion in the marketplace," said Ken
Ross, an eToys.com spokesman. 

On Nov. 29, Superior Court Judge John B. Shook issued a preliminary
injunction shutting down the artists' site. The disappearance of the
www.etoy.com site has provoked a furor on the Web, where anarchists,
agents provocateurs and other foes of commercialization are often at full
boil anyway. 

Some fans of the Etoy site have organized a boycott of the toy seller. As
of yesterday, about 20 anti-eToys sites had been put up on the Web, and
hundreds of angry e-mails had been fired off to executives of the Santa
Monica, Calif.-based company. 

"I will not shop with eToys, will sell any mutual funds I own which invest
in eToys, and will urge my family and friends to do likewise, until you
drop your lawsuit," fumed one typical e-mailer, Richard Zach, a graduate
student at the University of California at Berkeley. A devoted online
shopper, Zach, 29, said in an interview that he had intended to spend
about $100 on Christmas gifts at eToys until he heard about the
injunction. 

"The Etoy injunction is a travesty, and the folks at eToys ought to be
ashamed of themselves for misusing the law like this," said Shari Steele,
a spokeswoman for the Electronic Frontier Foundation, a cyberspace civil
liberties group. "The artists at Etoy were not competing with eToys and
had their domain name registered years before eToys registered their own." 

No one disputes that. Unlike other high-profile Internet legal cases, the
Etoy artists are not being portrayed as "cybersquatters"--people who snap
up valuable domain names with no intention but to turn a quick profit.
Etoy registered its site in 1995; eToys got its site in 1997. 

But the toy e-tailer also got its U.S. trademark that year, and that forms
the basis of its legal argument. EToys, which ranks in the top four e-
commerce sites on the Web, contends that Etoy's site is "confusingly
similar" and therefore harms its trademark. 

Etoy's lawyers have appealed the injunction, saying the artists have first
claim to the trademark because they were using it first, even though they
didn't formally seek a trademark until later. A hearing is set for Dec.
27. Ross said his company tried to "amicably resolve" the domain dispute
and is open to further negotiation. 

Officials at eToys will not directly comment on the boycott. "We are 100
percent focused 24 hours a day, seven days a week on delivering a great
holiday experience for our customers," Ross said. 

He faxed a reporter copies of what he called "upsetting" pages from an old
Etoy site, saying some eToys customers had complained about seeing images
that included a nude man in sadomasochism garb dangling below the slogan
"Stop Censorship" and a photo of the Oklahoma City bomb site accompanied
by the headline "Such work needs a lot of training." 

"It's not our intent in any way, shape or form to comment on what's art
and what's not art, but I really believe that if the general public were
to see this stuff the vast majority would find it offensive," Ross said. 

An Etoy spokesman who gave his name as "Agent Zai," based in Zurich, said
the images were out of context. "This is a smear campaign against
culture!" Zai declared. 

He and other members of the collective travel from country to country,
living in 40-foot-long, 10-ton freight containers and planning their next
multimedia project. They once described themselves on their site as "7
human net-agents exploring high pressure teamwork in uncontrollable
environments, permanently processing borderline information." 

In 1996, the group's "Hijack Project"--which commandeered and trapped
unsuspecting users on its Web site--won the Prix Arts Electronica, an
Austrian award worth $7,375. Etoy also was briefly investigated by the
CIA--a badge of honor for Etoy representatives. 

Right now, Etoy's avant garde presentations can be sampled at
http://146.228.204.72:8080--a substitute for the www.etoy.com site--or at
sympathetic sites such as www.toywarcom or www.eviltoy.com. 

As part of its mission to parody the increasingly corporate culture of the
Internet, Etoy offered itself as a public company last year, selling
"shares" of its Internet art. Among its advisers is performance artist
Laurie Anderson; among its "investors" are U.S. art galleries. But Etoy is
not registered with the U.S. Securities and Exchange Commission, a fact
noted by Judge Shook, who also ordered Etoy to stop selling "stock" in the
United States. 

Karin Spaink of Amsterdam, who helped judge the '96 art competition that
honored Etoy, called Shook's order troubling in its reach. "It does make
you wonder about the influence of U.S. courts and how many other domains
might be closed down, even though they might be legitimate," she said. 

Those who have participated in the Etoy art experience are being asked to
vote on its future. Agent Zai said the board of Etoy is seeking at least
$1 million for its domain name, but any sale would have to be approved by
the 130 shareholders.

Zai believes the controversy has increased the value of Etoy's shares. 
"The lawsuit has turned into a huge project," he said. "It's a
continuation of the art. Before, no one was interested in voting on Etoy
projects, but now that someone is offering a lot of money, everyone is
interested." 


          � Copyright 1999 The Washington Post Company 


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