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Post, who co-edits icannwatch.org, hopes that Icann will succeed in creating additional top-level domains, so this type of conflict happens less frequently. If etoy.com were etoy.art, for example, it would have been difficult for eToys to have raised a claim of confusion. "The whole landscape changes for the better if more top-level domain names open up," says Post. Though he fears that trademark interests will oppose this alternative, he hopes Icann won't be swayed. "Icann should not be an organ for trademark owners."
Regardless, for now .com is where most people register. etoy argues that the .com domain is part of its brand name. And .com is not a bad platform for a group of artists whose socially relevant work targets corporations and systems of hierarchy on the World Wide Web. In 1996 etoy successfully completed a project it called a "digital hijack." First researching the software behind search engines such as Infoseek and Altavista, the group determined the method by which one URL is deemed more important and given a higher ranking than another. In a coup that demonstrated how such information is sifted--and how easily trusting people can be shepherded--etoy created thousands of pages that announced to innocent surfers who typed keywords such as David Bowie, Porsche, and Penthouse that they had been "hijacked," then proceeded to explain how.
According to etoy agent kubli, who is located in Switzerland, etoy "hijacked" approximately 1.5 million people during the three months the group conducted the project. The CIA sent officers to Austria to investigate in collaboration with the Austrian police but could find nothing incriminating in etoy's activities. zai laughs as he recalls their Keystone Kops tactics: "They were using typewriters [instead of computers], and they kept asking us if what we were doing was bad. We had a good attorney who explained why they should stop, and we never heard from them again." Now the pages, which are still floating around on the Internet, are being used by eToys against etoy, as evidence of "unlawful conduct."
Until now, etoy's digital hijack has been regarded with the utmost respect. The group was recognized by some of the most highly regarded electronic arts festivals and centers, such as Ars Electronica, which in 1996 awarded etoy the Golden Nica in the Internet art category, the most prestigious prize offered. (The winner this year was Linux.) The group was also invited to complete a residency at the nonprofit arts foundation c3 (the Center for Communication and Culture). In fact, c3's assistant director Andrea Szekeres says that when she heard etoy was being sued, she figured it was just another of the group's art projects. "All of their work is about corporate identity. It would be in their scope of activity to be involved in a lawsuit and to see how it would evolve."
etoy took its corporate shtick to another level when it began offering "shares" for sale. zai insists that the etoy shares compel people to think about the elusive and amorphous nature of Internet art. One of the many controversies about Net art is that there is no original copy; an artist can't exactly "sell" a home page to a collector. The "shares" play with the idea of ownership and the Net and spoof absurdly overvalued Net stock. Each "share certificate" is unique, a two-foot-by-two-foot, slickly designed poster. Mounted on aluminum, each contains a chip bearing the shareholder's information and symbolizing electronic transaction. (The chancellor of Austria, Viktor Klima, was the first to buy a share.)
Clearly, the share certificates are not stock. eToys, however, missed the irony, and now accuses etoy of securities fraud. The allegation infuriates zai. In an e-mail, he writes that this "shows how dangerous it is to take today's perverted financial markets as a topic for an art project...as an artist you have to deal with 'personal/private' problems...and not to jump on things like the stock market etc....you are tolerated as long as you don't disturb!"
William Linn, director of the blasthaus gallery in San Francisco, which represents etoy on the West Coast, maintains that the shares are "playing around with people's perceived values and associations." He views the suit as "one of the tragedies of American consumerism B.S."
Megan Gray, a lawyer with the Los Angeles office of Baker & Hostetler who specializes in Internet law and intellectual property and is watching the case, says this suit would not pass a "giggle test,"--i.e., an unofficial gauge of the likelihood the plaintiff will appear totally ridiculous in court. Money, rather than fear for the corruption of innocent children, seems to be the driving factor behind the suit. Gray suggests that eToys just wants to hurt etoy. "A violation of securities law is very serious," she points out. "If they lose on trademark infringement, they'll try to win on something else." Gray adds that the suit is basically a dispute over a similar name and continues, "This is an attempt to outspend them." In fact, etoy has already spent roughly $20,000 on American lawyers. This would be mere pennies to eToys, which boasts a market capitalization of $8.41 billion.