HOW THE IP GUERRILLAS WON: ®TMARK, ADBUSTERS, NEGATIVLAND, AND
THE “BULLYING BACK” OF CREATIVE FREEDOM AND SOCIAL COMMENTARY
Giselle Fahimian1
I. INTRODUCTION
When the Internet first emerged as a tool for the relatively inexpensive mass
dissemination of information and images, some scholars embraced it as a potential
harbinger of semiotic democracy, a society in which all persons are able to participate in
the generation and circulation of cultural meaning-making. However, it quickly became
apparent that the true power of meaning-making actually remained concentrated in the
hands of the relatively few “goliaths” of the corporate world who could afford to threaten
and prosecute anyone who used their trademarks or copyrights in ways they found
objectionable. Despite provisions for fair use and parody, the intellectual property
regimes that serve to protect the copyrights and trademarks of these goliaths (which
include Coke, Nike, Barbie, Blockbuster, Calvin Klein, and McDonald’s) leave little
room for the type of social commentary, criticism, and artistic re-working of protected
works that a true semiotic democracy would facilitate and support.
Recently, a number of websites2 run by artists and activist groups such as ®TMark
(pronounced “artmark”), Adbusters, and Negativland have sprung up on the Internet to
1
Many thanks to Professors Terry Fisher and David Kennedy at Harvard Law School for their extremely
helpful comments and brainstorming sessions. A heartfelt thank you to all the strangers I emailed out of
the blue who actually emailed me back: the ever-mysterious Ray Thomas and Frank Guerrero from
®TMark, Paul, Dave, and Brant from Adbusters, Mark Hosler from Negativland, and Mark Napier.
Personal thanks to Liza Brann for our challenging Tealuxe discussions, and to Teddy Chandler for the
magical blue screen, which kept my eyes going, and the little green lamp, which kept the rest of me going.
Special thanks to the participants in Professor Kennedy’s Spring 2002 Academic Writers Workshop for
their enthusiasm and encouragement. This paper is dedicated to the memory of my grandfather, Jacob
Ourian, a pioneer in every sense of the word.
battle these goliaths, guerrilla style. These cultural activists push the boundaries of
intellectual property protection, inviting their members to engage in mass civil
disobedience in order to highlight the constrictive and seemingly arbitrary nature of
current intellectual property regimes and push for doctrinal change.
This paper will examine the various projects undertaken by these organizations
and the range of tactics utilized by these Internet-based groups in their quest for “cultural
dividends,” including a discussion of long-term goals and organizational styles, the use of
technology to mobilize forces for large-scale international projects, and the quasi-legal
strategies that these organizations employ to skirt the law and protect both themselves
and their members from liability for their (often technically illegal) actions.
“IT’S MORE FUN TO COMPUTE”: TECHNOLOGY & THE INTERNET
The increasing popularity of the Internet and the resulting ease of mass
communication via the use of related technologies such as email3 have greatly influenced
the mobilization of groups that are formed in order to challenge the status quo.
I will be using the term “website” throughout this paper. As the American Heritage Dictionary (4th ed.)
notes: “The transition from World Wide Web site to Web site to website seems to have progressed as
rapidly as the technology itself. The development of website as a single uncapitalized word mirrors the
development of other technological expressions which have tended to evolve into unhyphenated forms as
they become more familiar. Thus email has recently been gaining ground over the forms E-mail and email, especially in texts that are more technologically oriented. Similarly, there has been an increasing
preference for closed forms like homepage, online, and printout.”
<http://www.dictionary.com/search?q=website>.
3
I will be using the term “email” throughout this paper. As mentioned in the previous footnote, there are
numerous variants of the abbreviation for electronic mail, including E-mail, Email, e-mail, and email. It
seems that the use of the term “email” has actually come full circle. The Jargon File (version 4.2.0) notes
that in early Internet traffic (up to 1995), the use of “email” predominates, “e-mail” runs a not-too-distant
second, and “E-mail” and “Email” are a distant third and fourth.
<http://www.science.uva.nl/~mes/jargon/>. In keeping with my own introduction to the Internet, I will use
“email” in the main text of this paper. However, in keeping with Rule 18.2.9 of “The Bluebook”, the
citation bible for legal papers, I will use “E-mail” in footnote text citations. See THE BLUEBOOK: A
UNIFORM SYSTEM OF CITATION 141 (Columbia Law Review Ass’n et al. eds., 17th ed. 2000).
2
2
Historically, technological developments have often bolstered social movements by
aiding in the faster and broader dissemination of information and images. Examples are
as numerous and varied as the movements themselves: Johannes Gutenberg’s invention
of the printing press (circa 1455) marked Western culture’s first viable method of
spreading ideas and information from a single source to a large and far-ranging
audience4; use of the portable phonograph aided Jehovah’s Witnesses in broadcasting
pre-recorded sermons during their door-to-door campaigns of the 1930s5; national
television networks gave force to the use of civil disobedience by the Civil Rights
movement during the 1950s and 60s6; home computers, photocopiers, and desktop
publishing programs fostered the development of alternative “zines”7 and the Riot Grrrl
movement in the 1980s and 90s.8
Better, faster, and cheaper methods of disseminating information have made
possible the more effective mobilization of, as Justice Black phrased it so many years
ago, “the poorly financed causes of little people.”9 Today, you don’t even need to buy
your own computer or photocopier to prepare flyers to publicize a cause. You can simply
walk over to the nearest Kinko’s and pay for half an hour of computer access and 100
photocopies on brightly colored paper. Total cost? Seventeen dollars.10 Or, as a law
student, I can use the computers at the Harkness Commons to create an announcement
and email it to my entire class – over 500 students – for free.
4
<http://www.digitalcentury.com/encyclo/update/print.html>.
<http://www.lcms.org/president/aboutlcms/whatabout/jw.asp>.
6
<http://www.americansc.org.uk/Conferences/Civil_Rights.htm>.
7
<http://www.zinebook.com/resource/memes.html>.
8
<http://www.emplive.com/explore/riot_grrrl/evolution.asp>; see also Seth F. Kreimer, Technologies of
Protest: Insurgent Social Movements and the First Amendment in the Era of the Internet, 150 U. PA. L.
REV. 119, 120 (2001).
9
Martin v. Struthers, 319 U.S. 141, 146 (1943).
10
At the Kinko’s in Cambridge, Massachusetts, it costs $6 for half an hour of computer access and 11
cents per copy on colored paper.
5
3
Access to the Internet has also made it much easier to join the public dialogue and
argument that social movements stem from. Most people wouldn’t be able to rent office
space and pay for phone lines, staff, and billboards to publicize a physical “George W.
Bush Sucks” office, but almost anyone with an Internet connection can afford to buy a
domain name and create a website with the same – or perhaps an even more widespread –
effect.11
Freedom of the press is no longer guaranteed “only to those who own one.”12 In
many ways, the Internet functions as an equalizing force, providing even the “little guy”
with a place to speak. Whether the “little guy” is a random freckle-faced 13-year-old
posting to a listserv about hacking Windows 95 or a high-powered corporate attorney
airing his grievances about lock-step compensation schemes on the Greedy Associates
bulletin boards (using a fake screen name for his own protection, of course), both are
given the same opportunity to communicate – relatively freely – with the rest of the
world in these online environments. In addition to “posting” their opinions on various
lists and replying to the postings of others, both the 13-year-old and the attorney can quite
easily, with the click of a mouse, send emails to the other ambitious Windows 95 hackers
or Greedy Associates who are members of their respective groups. With the use of
handles, screen names, and madeup@yahoo.com email addresses, they can easily
correspond with others who are passionate about the same topics – without ever revealing
their real names.13
11
See <http://www.gwbush.com/>.
See Seth F. Kreimer, Technologies of Protest: Insurgent Social Movements and the First Amendment in
the Era of the Internet, 150 U. PA. L. REV. 119, 121–22 (2001) (commenting upon A.J. Liebling’s
observation before the advent of the Internet that “freedom of the press is only guaranteed to those who
own one.”).
13
A major area of debate that I will not be addressing in this paper is the so-called “digital divide”
problem. As the Digital Divide Network notes:
12
4
II. THE ORGANIZATIONS
A. THE INCORPORATED ANTI-CORPORATE WARRIORS: ®TMARK
Internet-based organizations such as ®TMark have capitalized on the potential
anonymity of the Internet and its inherent power of mass mobilization in their ongoing
quest for “cultural dividends.”14 The use of Internet websites and email has helped
groups like ®TMark organize almost all of their subversive activities (both offline and
online) for little – if any – financial cost.15 For example, ®TMark’s Archimedes Project,
hatched through a combination of threaded-message discussion board postings and
anonymous international email correspondence, brought together one thousand activists
in Genoa, Italy in July 2001:
When the World Bank cancelled its June 24 meeting in Barcelona in fear of
protest, it was rumored that the G8 would hold its Genoa meeting offshore, to
insulate itself from citizen concerns. In response, a group of activists turned to
Archimedes. According to legend, this ancient Greek mathematician used several
large mirrors to focus the heat of the sun onto invading Roman ships, burning
them to a crisp and thus saving the city of Syracuse. Although the G8 decided to
hold its meeting on land, in a highly-fortified “red zone,” the Archimedes Project
organizers went ahead with their plans. Volunteers from the Makaya Refugee
Camp distributed the pile of pink, blue, black and purple mirrors to a thousand
We use the term ‘digital divide’ to refer to [the] gap between those [people and communities] who
can effectively use new information and communication tools, such as the Internet, and those who
cannot. While a consensus does not exist on the extent of the divide (and whether the divide is
growing or narrowing), researchers are nearly unanimous in acknowledging that some sort of
divide exists at this point in time.
<http://www.digitaldividenetwork.org/content/sections/index.cfm?key=2>.
The “Open Economies” project sponsored by the Berkman Center for Internet & Society at
Harvard Law School is currently working on finding solutions to the digital divide problem.
<http://cyber.law.harvard.edu/openeconomies/>.
14
<http://www.rtmark.com>.
15
Of course, ®TMark is not the only organization that takes advantage of Internet resources for organizing
and publicizing these types of protest activities. See, e.g., Andrew O’Hehir, How to Plan Chaos, N.Y.
TIMES (MAG.), Apr. 15, 2001, at 16 (noting the use of email lists to increase the audience for a protest at the
2001 Summit of the Americas in Quebec City); Rene Sanchez & William Booth, Protest Movement Loses
Its Steam in Heat of L.A., WASH. POST., Aug. 20, 2000, at A3 (explaining that most of the demonstrations
at the 2000 Democratic National Convention were organized by “small leaderless groups on shoestring
budgets, spreading the word of their causes largely through the Internet.”); Uli Schmetzer, World Trade
Targeted Down Under, CHI. TRIB., Sept. 12, 2000, at 1 (discussing the use of websites to organize protests
against globalization in Australia).
5
activists, who used the mirrors to focus sunlight on police helicopters, tanks, and
other assault vehicles, as well as into the eyes of attacking police.16
®TMark is an anonymous collective of media provocateurs and corporate
saboteurs who have pulled some of the best-known cultural pranks of the past ten years,
such as swapping the voice boxes of hundreds of talking Barbie and G.I. Joe dolls at a
New York Toys ‘R’ Us and launching satirical “G.W. Bush” and “GATT” websites.17
On their own website, numerous international projects are divided into fifteen different
“mutual funds,” which include a broad range of topics such as Biological Property,
Media, Intellectual Property, Communications, and Corporate Law.18 Clicking on a fund
group takes you to a listing of all the projects under that particular subject heading and
identifies how much capital (both human and financial) is needed for each project.
Specific projects are given four-letter NYSE/NASDAQ style abbreviations just
like “real” publicly traded stocks. For example, project BABY from the Corporate Law
fund seeks an initial capital investment of $6,000 in order to “get a famous sportswear
manufacturer (or any other giant corporation) to agree, on broadcast or other public
media, to sponsor the high-quality education, health care, etc. of a U.S. baby who would
otherwise not have access to same – in exchange for having the baby tattooed with the
company’s logo in the womb or at birth.”19 Project MP3S from the Intellectual Property
16
<http://www.rtmark.com/archimedes.html>.
All Things Considered: ®TMark, National Public Radio, June 20, 2000.
18
<http://www.rtmark.com/funds.html>.
19
<http://www.rtmark.com/fundcorp.html>. The Internet Underground Music Archive paid a Kansas
couple $5,000 for naming their baby Iuma, the website’s acronym. <http://techupdate.zdnet.com/
techupdate/stories/main/0,14179,2660906,00.html>. Even more interestingly – or perhaps disturbingly – in
July 2001, a New York couple put up for auction (on eBay and Yahoo!) the naming rights to their newborn
son, hoping that a corporation would bid at least $500,000 for the advertising opportunity of a lifetime.
<http://abcnews.go.com/sections/scitech/DailyNews/babynameauc010726.html>. Of course, the child’s
parents quickly became the butt of many jokes such as “The Top 13 Things Overheard Later in the Life of
the Corporate-Name Baby”: <http://www.wackyzoo.com/j0079.shtml>.
17
6
fund aims to “create a web site that lets people select from a list of MP3s which MP3s
they’ve ‘stolen.’ A form should allow them to write a little apology to the [Recording
Industry Association of America, “RIAA”] with their name and email; the script should
then attach the selected MP3 and send it along with the apology.”20 (Of course, sending
hundreds of large MP3 files to the RIAA at once could flood the RIAA’s email inbox and
even cause their servers to crash; perhaps this sort of “email bombing”21 is an intended
side effect of project MP3S.)
In order to limit the legal liability of its members, ®TMark is structured in the most
decentralized and anonymous manner possible. Its members are scattered across the
world and the organization itself is funded by anonymous private donors. The entire
participatory process can be as anonymous or as transparent as a member wants. You can
subscribe to the general ®TMark email list and keep up to date on recent projects by
providing only an email address. Revealing your name – real or phony – is optional.
You can also take part in a discussion regarding any one (or more) of ®TMark’s projects
by joining an online threaded-messaging board. All you need to provide in order to
participate is either an email address or a user name and password, which will “allow you
to hide your email address from view and still receive notifications” when others post
messages about your topic.22 Again, providing a name is entirely optional.
This sense of anonymity and decentralization is all-encompassing. There is no
detailed contact information available on the ®TMark website. The names of founders,
20
<http://www.rtmark.com/fundintel.html>.
Mailbomb: “To send, or urge others to send, massive amounts of email to a single system or person,
[especially] with intent to crash or spam the recipient’s system. Sometimes done in retaliation for a
perceived serious offense.” <http://www.dictionary.com/search?q=mailbomb>. Email bombing can also
jam a recipient’s email inbox entirely, preventing the receipt of legitimate email.
22
This link explains how to become a member of a discussion forum: <http://www.rtmark.com/f/editmember.pl?new>.
21
7
organizers, directors, and members are not listed. There is no phone number, mailing
address, or physical location mentioned anywhere. There are no headquarters. My
attempts to get in touch with the “people in charge” at ®TMark began with emails sent to
the generic admin@rtmark.com and info@rtmark.com email addresses. I finally received
a friendly response from Ray Thomas – admin@rtmark.com – and began corresponding
with him and asking him questions. Only after stumbling upon some newspaper articles
about ®TMark did I realize that the Ray Thomas I was corresponding with did not really
exist.23 Neither did “frank guerrero,” my other helpful email contact from ®TMark. It
turns out that the group’s three current managing members,24 spokesman Ray Thomas,
CFO Frank Guerrero and legal assistant Max Kaufman – rumored to be a San Francisco
lawyer, New York financial analyst and general Snuffleupagus-like man of mystery,
respectively – all refuse to reveal their real names and communicate almost exclusively
via email. Some of the group’s core members have never even met each other face to
face.25
23
Although some of the information in the following article is out of date, it initially tipped me off to the
fact that the managing members of ®TMark use pseudonyms instead of real names.
<http://www.nytimes.com/library/tech/00/08/circuits/articles/17rtma.html>.
24
…or is it four? Some articles mention a fourth managing member, Candid Lucida, a Los Angeles
schoolteacher. However, Ray Thomas writes, “Candid is no longer involved with RTMark. She acted as
spokesperson for us, generally at art-type events. None of the founding members are with RTMark
anymore, it’s all new people. There are three managing members: Frank [Guerrero], Max Kaufman, and
me [Ray Thomas].” E-mail from Ray Thomas, Spokesman, ®TMark, Apr. 2, 2002 (on file with author).
25
<http://www.thestandard.com/article/display/0,1151,9423,00.html>. In some ways, I have to admit that
this sense of anonymity made the research process rather difficult. Although I received some very helpful
emails from “Ray Thomas” and “frank guerrero,” I have no idea who really said or wrote what, or whether
I have been in contact with one person or ten different people. During our email correspondence, I was
often directed to news articles and other sources that had already quoted ®TMark “on the record” and was
told to use those for comment. Interestingly enough, these news articles often contained erroneous and
contradictory information. The managing members of ®TMark seemed to relish in this confusion, as many
of my email questions to clarify the discrepancies received extremely cryptic, short replies.
8
The identities of investors in the mutual funds and projects are also anonymous.
Simply put, “For anonymity, we just keep it a secret who they are.”26 Anyone can invest
any amount of money (there is no minimum investment) in one or more of ®TMark’s
mutual fund families. These mutual funds allow smaller investors to pool their
investments and participate in the entire international ®TMark process even if they lack
the necessary capital to be the sole financier of an entire project. Investors can designate
their contribution to be used for a specific project or, much like a traditional mutual fund,
they can leave those decisions up to ®TMark’s “uniquely qualified” fund managers, who
decide which projects within a fund family need immediate funding and allocate
investments accordingly.27 It is interesting that the investment structure of this
subversive organization is so similar to that of traditional investment service corporations
such as Janus or Fidelity, where an almost equally anonymous investor relies upon the
decisions of (hopefully) competent fund managers in order to obtain a solid return on her
initial capital investment. Of course, as the members of ®TMark are quick to point out on
the website’s FAQ, the intended return on an investment in ®TMark is cultural dividends,
not financial gain:
So ®TMark is just a corporation?
®TMark is indeed just a corporation, and benefits from corporate protections, but
unlike other corporations, its “bottom line” is to improve culture, rather than its
own pocketbook; it seeks cultural profit, not financial.
Say that again?
Just as ordinary corporations are solely and entirely machines to increase their
shareholders’ wealth (often to the detriment of culture and life) so ®TMark is a
This was a typically cryptic answer to one of my typically long-winded questions: “How do you handle
the anonymity of donors of funds, if they wish to remain anonymous? Do they mail you cash or what? I
expect that some donors want to remain anonymous and I wonder how they manage to do so.” E-mail from
Ray Thomas, Spokesman, ®TMark, Apr. 2, 2002 (on file with author).
27
<http://www.rtmark.com/mutfunddesc.html>.
26
9
machine to improve its shareholders’ culture and life (sometimes to the detriment
of corporate wealth).28
Why the strong emphasis on anonymity? ®TMark operates on the assumption that
the same legal structure and protections that allow some corporations to “maim with
impunity” also protect ®TMark’s clients – both the initiators/plotters of sabotage and the
investors in the mutual funds that finance the actual sabotage – from punishment.29
Former managing member Candid Lucida phrased it in simple terms, “We behave like a
corporation and stay anonymous to limit liability.”30 CFO Frank Guerrero echoes, “Our
investors are protected by the same limited-liability status that lets officers of other
corporations avoid responsibility for their companies’ wrongdoing….We are a for-profit
organization – although we don’t see capital as profit; our profits are cultural dividends
[not money].”31 In fact, at one point, ®TMark was registered as an S-corporation in
Delaware, but its current corporate status is unclear. (It deregistered when it couldn’t
figure out how to declare “cultural profits” on corporate tax forms.32)
It could be argued that ®TMark is simply a matchmaker or middle-man, a true
“broker” in the traditional sense of the word, providing a service that facilitates bringing
together individuals with ideas and individuals who can provide the necessary funding or
other capabilities to carry out those ideas. For example, San Francisco computer
programmer Jacques Servin was paid $5,000 in anonymously donated ®TMark funds for
successfully reprogramming the SimCopter video game so that instead of rewarding the
player/hero with images of scantily clad women, the screen showed boys in swimsuits
28
<http://www.rtmark.com/faq.html>.
<http://www.laweekly.com/ink/00/18/art-harvey.shtml>.
30
<http://www.nytimes.com/library/tech/00/08/circuits/articles/17rtma.html>.
31
<http://rtmark.com/more/articles/newyorkmag19990906.html>.
32
Andy Dworkin, “Mutual fund” Skewers Big Business, Politics: Anti-Corporate Agitator Hopes Pranks
Provoke Thought on Company Culture, DALLAS MORNING NEWS, May 30, 1999, at 1H.
29
10
kissing each other. 50,000 copies of the game were shipped by before the hack was
discovered.33
Ultimately, ®TMark’s goal is to attack – without ever causing physical injury – in
order to raise public consciousness about the wrongs that corporations are capable of
getting away with every day. Managing member Ray Thomas notes, “We’re not
corporate in our hearts, we just use the corporate structure in order to illustrate its nature:
We can do this sometimes illegal sabotage stuff because we have corporate protections;
imagine what really nasty-minded corporations are doing.”34 ®TMark’s FAQ reminds us
that, “We urge you to at all costs remember that laws should defend human people, not
corporate people…” On a broader scale, ®TMark seeks to teach the public how to protest
the acts of corporations and to show individuals that they actually possess the power to
affect institutions and institutional behavior. “People know how to protest the
government – there’s a huge history to that, a lot written, a lot of examples – but not how
to protest corporations.”35
®TMark’s anti-corporate attack strategy is particularly clever and self-aware. As
one legal commentator noted:
®TMark may want to provoke the targets of [its] attacks to tighten the laws
limiting corporate criminal and civil liability. The idea is that to go after ®TMark
and broaden its potential liability for its actions, corporations would seek legal
changes – but then the changes for which they lobbied would turn around and bite
them, for when [the complaining corporations] acted badly, their liability, too,
would be broader than before.36
33
See <http://www.wired.com/news/culture/0,1284,775,00.html>; <http://bostonphoenix.com/archive/
features/98/01/22/ARTMARK.html>.
34
<http://www.sfgate.com/cgi-bin/article.cgi?f=/gate/archive/2001/06/12/rtmark.DTL>.
35
<http://www.bostonphoenix.com/archive/features/98/01/22/ARTMARK.html>.
36
<http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/sebok/20011119.html>.
11
®TMark’s website is currently accessed by approximately 2,300 distinct visitors
per day. A few years ago, the number was closer to 1,000.37 Although the average
number of daily requests for pages fluctuates (in part based on press coverage about
various projects and the timing of such projects), the general trend has been upward:
December 2000 – 4,657 pages; June 2000 – 29,813; December 2001 – 6,541; April 2002
– 6,481.38 For example, the surge in website traffic in June 2000 was probably a result of
publicity surrounding ®TMark’s inclusion in the Whitney Museum of American Art’s
Biennial Exhibition, which ran from March 23 through June 4, 2000.39
®TMark’s international influence is surprisingly broad. In a random twenty-four
hour time period in April 2002, Internet users from over fifty different countries visited
the website. Their locations ranged from Trinidad & Tobago in the Caribbean to Tuvalu
in Oceania to Mauritius, an island off the coast of Southern Africa.40 Over 3,000
members participate in the online discussion forums, and approximately 30,000 people
37
E-mail from Ray Thomas, Spokesman, ®TMark, Apr. 5, 2002 (on file with author).
These numbers indicate traffic during random twenty-four hour snippets. All statistics are from Web
Server Statistics for rtmark.com (on file with author); see also E-mail from Ray Thomas, Spokesman,
®TMark, Apr. 5, 2002 (on file with author). Any and all errors in interpreting statistical data are mine –
watch out, I was an Art History major in college.
39
See <http://www.whitney.org/exhibition/2kb/internet.html>. ®TMark actually caused quite a stir when,
without notifying the Whitney Museum, they altered their website (chosen to appear as an example of
Internet art in the Whitney’s prestigious Biennial Exhibition) so that museum visitors who tried to view the
®TMark website at exhibition kiosks instead found a series of rotating Internet pages submitted by the
public. The content of these websites ranged from pornography to a mirror of the Whitney museum’s own
homepage. <http://www.qdcomic.com/misc/whitneybiennial.htm>. ®TMark also auctioned their four
tickets to the Whitney Biennial’s exclusive VIP opening reception (which was supposed to be only for
patrons, curators and artists) on eBay, with the proceeds going to finance more projects. As Ray Thomas
noted, “We actually didn’t want to go….We might be able to make some money schmoozing people at an
art reception, but people in that context aren’t used to being asked for cash to finance sabotage.” Id. In
fact, the winning bidder gave the tickets away to the next highest bidders (for free) and specifically
requested that the money be used by ®TMark for project BABY, which is mentioned earlier in this paper.
<http://www.qdcomic.com/misc/whitneybiennial.htm>; <http://www.laweekly.com/ink/00/18/artharvey.shtml>.
40
Web Server Statistics for rtmark.com: Domain Report 5–6 (on file with author).
38
12
subscribe to the main ®TMark email list. 41 (This number includes journalists who sign up
to receive press releases about recent projects.)
This begs the question – could ®TMark continue to exist and function effectively
without the aid of the Internet? “It would be more expensive, but it could exist,” explains
Thomas. He notes that ®TMark’s primary activities are basically “public relations”
focused – disseminating information about and seeking publicity and funding for its
many projects – therefore most of its press-release type work could be accomplished
simply by using traditional media PR tools such as envelopes, packages, footwork, press
conferences, and video news releases. Still, Thomas admits that use of the Internet saves
the organization a lot of time as well as money: “E-mailing press releases is much easier
and cheaper for us, because we don’t have the typical public relations budget, since our
focus isn’t on making money.”42
41
42
E-mail from Ray Thomas, Spokesman, ®TMark, Apr. 5, 2002 (on file with author).
<http://www.sfgate.com/cgi-bin/article.cgi?f=/gate/archive/2001/06/12/rtmark.DTL>.
13
B. THE MARKETING PARODISTS: ADBUSTERS
Adbusters Media Foundation defines itself as a “global network of artists,
activists, writers, pranksters, students, educators and entrepreneurs who want to advance
the new social activist movement of the information age,” in order to “topple existing
power structures and forge a major shift in the way we will live in the 21st century.”43 It
is structured as a non-profit organization with three main activities: the publication of
Adbusters magazine, the operation of PowerShift (an “advocacy advertising agency”),
and the maintenance of adbusters.org, home of the Culture Jammers network.44 The
Adbusters website states that it is designed to help visitors participate in worldwide
activism, to help “turn the drab number cruncher you’re staring at right now into the most
versatile activist tool ever reckoned with. From cyberpetitions to Critical Mass tips…we
hope this site will inspire you to move – upon your return to the real world – from
spectator to participant.”45 As one Adbusters representative explained, many people
erroneously assume that Adbusters’ social commentary is limited to the publication and
43
44
45
<http://adbusters.org/information/foundation/>.
<http://adbusters.org/information/donate/>.
<http://adbusters.org/information/foundation/>.
14
distribution of their popular magazine, but the magazine is only a starting point: “We’re
not a magazine as much as a movement.”46
Kalle Lasn, the outspoken founder of Adbusters, echoes these sentiments. In his
words, the movement will ultimately bring the power of meaning-making back to the
consumer:
It will alter the way we live and think. It will change the way information flows,
the way institutions wield power, the way TV stations are run, the way the food,
fashion, automobile, sports, music and culture industries set their agendas. Above
all, it will change the way we interact with the mass media and the way in which
meaning is produced in our society.47
In addition to the print magazine and web-based cultural activist campaigns such
as “Buy Nothing Day” and “TV Turnoff Week,” Adbusters is well-known for its “spoof”
ads, which mock the slick advertising campaigns staged by the tobacco, alcohol, fashion
and food industries. Targets of spoof ads have included Calvin Klein, The Gap,
McDonald’s, and Absolut Vodka.48 One popular series parodied Joe Camel, the funloving cigarette advertisement character. In the Adbusters spoof ads, he is no longer
smiling, dancing, smoking, and schmoozing with hot women. Instead, the “Joe Chemo”
series shows him wheeling around an IV in a hospital corridor,49 sitting in a hospital bed
looking sad, sick, and lonely,50 and finally, dead in a coffin.51
In another campaign, a group of street jammers52 changed a McDonald’s billboard
advertising the Big Mac sandwich from “Feeling hungry all of a sudden?” to “Feeling
46
Telephone conversation with Jules Killam, Computer Consultant, Adbusters (Apr. 4, 2002).
<http://www.gadfly.org/lastweek/kalle%20lasn.html>.
48
<http://adbusters.org/spoofads/>.
49
<http://adbusters.org/spoofads/tobacco/jc1/>.
50
<http://adbusters.org/spoofads/tobacco/jc2/>.
51
<http://adbusters.org/spoofads/tobacco/jc3/>. “Joe Chemo” first appeared in the Adbusters print
magazine in 1996. For the full history, see <http://www.joechemo.org/>.
52
The term “street jamming” is an offshoot of “culture jamming,” which has been defined by Mark Dery
as: “media hacking, information warfare, terror-art, and guerrilla semiotics, all in one. Billboard bandits,
47
15
heavy all of a sudden?”53 The Adbusters street jamming network also handed out bright
McDonald’s-red colored stickers saying GREASE – with each of the E’s a sideways
golden arch – ready to be stuck onto trays and tables at fast-food restaurants. 54 One of
these stickers is covering this Ronald McDonald character’s mouth:
pirate TV and radio broadcasters, media hoaxers, and other vernacular media wrenchers who intrude on the
intruders, investing ads, newscasts, and other media artifacts with subversive meanings are all culture
jammers.” <http://www.levity.com/markdery/jam.html>. Compared to regular “jamming,” which comes
from CB radio operator slang for the illegal practice of interrupting radio broadcasts, culture jamming is
“directed against an ever more intrusive, instrumental technoculture whose operant mode is the
manufacture of consent through the manipulation of symbols.” <http://www.levity.com/markdery/
culturjam.html>. Dery notes that the term “cultural jamming” was first used by the musical collage group
Negativland, discussed later in this paper, to describe billboard alteration and other forms of media
sabotage. <http://www.levity.com/markdery/culturjam.html>.
53
<http://adbusters.org/creativeresistance/jamgallery/street/>. This sort of guerilla billboard commentary
is reminiscent of the San Francisco-based Billboard Liberation Front (“BLF”), who credits itself with “24
years of outdoor advertising improvement.” <http://www.billboardliberation.com/home.html>. Like
®TMark, the BLF operates under a veil of secrecy. Its founder, Jack Napier (another pseudonym), is
actually rumored to have a day job in advertising. <http://www.villagevoice.com/issues/9917/carr.php>.
The BLF homepage asks visitors to agree to a humorous “clickwrap” agreement before entering their full
website:
By clicking below I agree to accept all Billboard Liberation Front (BLF) terms and conditions,
explicit and implicit, rational and irrational, regardless of my location in physical space and
irrespective of the laws of that or any jurisdiction. I understand that this website may contain
subversive ideas, unsafe suggestions, hazardous memes, cultural contaminants and/or intellectual
waste, and agree to hold BLF harmless, along with its agents and assigns, for any damages,
psychic or otherwise, that may occur as a result. I further indemnify BLF and its operatives from
any liability for expanded political or aesthetic consciousness and/or socioeconomic dementia. I
understand that BLF is not responsible for lost or stolen items, and that any structural damage
incurred during time of cultural warfare is outside of warranty and exempt from indemnification. I
understand that some information in this website has been satirized for my protection. Known
side effects of BLF agitprop include confusion, light-headedness, and mild mania. No animals or
signmen were harmed in the production of this website. Use only as directed. Close cover before
striking. Not intended as a substitute for direct action.
<http://www.billboardliberation.com/>.
54
<http://www.alternet.org/story.html?StoryID=9147>.
16
Adbusters’ international presence is impressive. An estimated 70,000 people
subscribe to the “Culture Jammers Headquarters” email list, which provides “news
releases, fresh news form the front and strategic updates” approximately twice per
month.55 The Adbusters print magazine, which publishes six issues per year, has a total
print run of 85,000 copies, including 22,000+ subscribers in over sixty countries and
solid newsstand sales.56 Although it is admittedly difficult to measure responses to
specific Internet-based projects, the Adbusters website averages between 7,000 and
11,000 unique visits daily and experiences far more during campaigns. (For example,
there were almost 20,000 hits on the last Buy Nothing Day.) Like ®TMark, the online
presence of Adbusters is growing. All of the above numbers have been increasing
substantially every year.57
Unlike the elusive ®TMark, however, Adbusters is structured with nearly complete
transparency. Contact information abounds, from telephone and fax numbers to a
worldwide toll-free 800 number. Anyone is invited to “drop by” their headquarters in
Vancouver, B.C. for a cup of coffee.58 The street address is listed right on the website.
Founder Kalle Lasn regularly gives speeches around the world.59 Adbusters managers
and staff work out of the Vancouver office from nine to five, Monday through Friday.
Also, unless I’ve been thoroughly duped over the past few months, the managers,
founder, employees, and volunteers actually use their real names.60
55
E-mail from Brant Cheetham, Office/Production Manager, Adbusters, Apr. 4, 2002 (on file with author);
see also <http://adbusters.org/information.network>.
56
<http://adbusters.org/information/foundation/>; see also E-mail from Brant Cheetham,
Office/Production Manager, Adbusters, Apr. 4, 2002 (on file with author).
57
E-mail from Brant Cheetham, Office/Production Manager, Adbusters, Apr. 4, 2002 (on file with author).
58
<http://adbusters.org/information/contact/>.
59
<http://www.media-awareness.ca/eng/speakers/names/lasnk.htm.>
60
E-mail from Paul Dechene, Campaigns Manager, Adbusters, Feb. 13, 2002 (on file with author).
17
Like ®TMark, the Internet has been instrumental in bringing the Adbusters
network of cultural activists together. Adbusters founder Kalle Lasn echoes ®TMark’s
communications concerns:
[The Internet has] been the key fact. We communicated as best we could for
many years without the Internet. We had 300 organizers around the world for
Buy Nothing Day. We had to send them expensive packages through the mail. It
was quite a cumbersome and expensive system that actually stopped us from
growing as fast as we could grow. And…as soon as we went on the Internet,
things really took off for us on many of our campaigns. And the 300 or 400
people we used to deal with…it’s grown to 35,000, and we are now a different
kind of organization. And we are global. Before that, most of the action was in
the Pacific Northwest, and, now, some of the most interesting [Buy Nothing Day]
jams have happened in Australia, Israel or Estonia.61
As for goals, Adbusters thinks that current intellectual property laws “are not
merely too restrictive, they shouldn’t exist.”62
III. CIVIL DISOBEDIENCE/HACKTIVISM
DISOBEDIENCE, n. The silver lining to the cloud of servitude.
– AMBROSE BIERCE, THE DEVIL’S DICTIONARY63
Interviewer: I’ve read criticism of your use of the phrase, “Liberating a billboard.” It’s
obviously destruction of property, so why not call a spade a spade?
Kalle Lasn, Founder, Adbusters: We do. To me, liberating a billboard or doing some of
the other illegal things that we do, to me this is a legitimate part of civil disobedience.
Every cultural revolution has had its lunatic fringes and civil disobedience.64
While the founders of ®TMark are content with feeding the corporate system’s
“dissociative effects” back on itself (and perhaps eliciting a few laughs and widespread
publicity in the meantime), Adbusters founder Kalle Lasn wants to “dismantle the
61
62
63
64
<http://www.gadfly.org/lastweek/kalle%20lasn.html>.
E-mail from Paul Dechene, Campaigns Manager, Adbusters, Feb. 13, 2002 (on file with author).
< http://www.online-literature.com/bierce/devilsdictionary/>.
<http://www.gadfly.org/lastweek/kalle%20lasn.html>.
18
corporate system altogether.”65 Both organizations strongly support the use of
“semiological guerrilla warfare”66 and modern-day civil disobedience to achieve their
anti-corporate power ends.
The term “civil disobedience” was originally coined by American philosopher
Henry David Thoreau in reference to his refusal to pay a state poll tax enacted to finance
enforcement of the fugitive slave law (and thus southern chattel slavery). It can be
defined as unlawful public conduct designed to appeal to the sense of justice of the
majority in order to change the law without rejecting the rule of law. Non-violence and
non-revolutionary intent, as well as a willingness to accept lawful punishment, are often
treated as defining conditions of civil disobedience.67
A. ELECTRONIC CIVIL DISOBEDIENCE
The growth of the Internet has made it possible to engage in “electronic” forms of
civil disobedience and “hacktivism”:
Acting in the tradition of non-violent direct action and civil disobedience,
proponents of Electronic Civil Disobedience [“ECD”] are borrowing the tactics of
trespass and blockade from these earlier social movements and are applying them
to the Internet. A typical civil disobedience tactic has been for a group of people
to physically blockade, with their bodies, the entranceways of an opponent’s
office or building or to physically occupy an opponent’s office – to have a sit-in.
Electronic Civil Disobedience…utilizes virtual blockades and virtual sit-ins.
Unlike the participant in a traditional civil disobedience action, an ECD actor can
participate in virtual blockades and sit-ins from home, from work, from the
university, or from other points of access to the Net. Further, the ECD actor can
act against an opponent that is hundreds [or] thousands of miles away.68
65
<http://www.disinfo.com/pages/dossier/id561/pg1/>.
This phrase was used to explain the “communication revolution” envisioned by Umberto Eco in 1967.
See UMBERTO ECO, Towards a Semiological Guerrilla Warfare, in TRAVELS IN HYPERREALITY (1986).
67
OXFORD COMPANION TO PHILOSOPHY 136 (Ted Honderich ed., 1995). For an online definition, see
<http://www.dictionary.com/search?q=civil%20disobedience>.
68
<http://www.thing.net/~rdom/ecd/EDTECD.html>. Image is from <http://cagle.slate.msn.com/>.
66
19
One popular form of electronic civil disobedience is accomplished through denialof-service (“DoS”) attacks, also referred to as virtual or electronic sit-ins. These attacks
flood web servers or networks with false requests for information which result in
overwhelming the system, preventing legitimate network traffic, and ultimately crashing
the server.69 The effects are similar to what would happen if hundreds of people kept
repeatedly dialing the same phone number to keep the line busy. An effective distributed
DoS attack is relatively simple to organize, requiring only the coordinated effort of a
group of individuals simultaneously “reloading” a specific website repeatedly. For webbased cultural activists, however, the appeal of such attacks is not only the slowing (and
sometimes complete crippling) of targeted websites, but also the high-profile publicity
that will inevitably result from DoS attacks on popular websites such as CNN, eBay,
69
In a typical connection, the user sends a message asking the server to authenticate it. The server returns
the authentication approval to the user. The user acknowledges this approval and then is allowed onto the
server. In a denial-of-service attack, the user sends several authentication requests to the server, filling it
up. All requests have false return addresses, so the server can’t find the user when it tries to send the
authentication approval. The server waits, sometimes more than a minute, before closing the connection.
When it does close the connection, the attacker sends a new batch of fake requests, and the process begins
again – tying up the server (and service) indefinitely. <http://news.com.com/2100-1017236728.html?legacy=cnet>.
20
Yahoo! and Amazon.70 There is also a David v. Goliath-type enthusiasm surrounding
these types of attacks, since they allow a few “little guys” sitting at their computers to
disable the websites of even the largest corporations and most important heads of
government.
Recent technology has made denial-of-service attacks even easier to accomplish;
for example, with funding and support from ®TMark, the Electronic Disturbance Theater
developed software called FloodNet, a Java applet that automatically reloads a website
every few seconds.71 With FloodNet, a user can simply leave her web browser open and
let the program take care of making the repeated server requests rather than having to
literally sit there and click on her web browser’s “reload” button for 30 minutes
straight.72 The software also allows protesters to leave a personal statement on the
targeted servers’ error logs. For example, if you point your browser to a non-existent file
such as “human_rights,” on the target server, the server will return and keep logging the
message, “human_rights not found on this server.”73
The legality of electronic sit-ins is not completely clear. Mark Rasch, the former
head of the computer crime division of the United States Department of Justice, has said
that participants in electronic sit-ins run the risk of violating 18 U.S.C., section 1030
(a)(5)(A),74 a federal law which makes it a crime to intentionally distribute a program,
software code or command with the intent to cause damage to another’s website.75
70
See <http://www.cnn.com/2000/TECH/computing/02/09/cyber.attacks.01/index.html>.
<http://www.rtmark.com/zapfloodpr.html>. The Electronic Disturbance Theater first used FloodNet in a
series of DoS attacks against the U.S. Department of Defense, the Frankfurt Stock Exchange, and Mexican
President Ernesto Zedillo to gain publicity for their support of the Zapatista rebels fighting against the
Mexican government in Chiapas. <http://www.wired.com/news/politics/0,1283,14931,00.html>.
72
See <http://www.nyu.edu/projects/wray/HarvPresent.html>.
73
<http://www.infowar.com/class_2/00/class2_020400b_j.shtml>.
74
<http://www4.law.cornell.edu/uscode/18/1030.html>.
75
<http://www.nyu.edu/projects/wray/nyt.html>.
71
21
Perhaps our definition of “participant” differs, but it seems to me that only the organizers
of electronic sit-ins could be found liable under this statute, not participants who are
uninvolved in the distribution or planning phases. Thus, when an anonymous
organization (such as ®TMark) is in charge of the publicity and distribution of FloodNet
or similar software, it if difficult to determine who, if anyone, to prosecute.
Another form of electronic civil disobedience occurs when people spread (or
encourage spreading) programs that are illegal in the first place. This is what happened
with the DeCSS DVD-decryption program. After Universal Studios and the Motion
Picture Association of America (“MPAA”) obtained an injunction prohibiting 2600.com
from posting copies of the DeCSS program on its website, both 2600.com’s magazine
and website provided addresses of (and, in the case of the website, links to) hundreds of
other websites around the world that had DeCSS available for download.76 After another
legal injunction forced those websites to stop sharing the program, a number of
programmers stepped up to continue the battle. One programmer calling himself “Mr.
Bad” decided, “If I couldn’t distribute DeCSS, I would distribute DeCSS….I could
distribute another piece of software called DeCSS that is perfectly legal in every way,
and would be difficult for even the…lawyers to find fault with.”77 And he did. He wrote
a different – and completely legal – program called DeCSS and asked website operators
to link to it in order to provide “a convenient layer of fog over the OTHER DeCSS.”78 A
different website with the stated aim of highlighting the “absurdity of Judge Kaplan’s
position that source code can be legally differentiated from other forms of written
76
Due to a later legal injunction against linking to any websites that provided the illegal decryption
program, the 2600.com website now lists hundreds of websites that used to have the DeCSS program
available for download: <http://www.2600.com/news/1227-help.html>.
77
<http://www.pigdog.org/decss/>.
78
<http://www.pigdog.org/decss/>.
22
expression,” featured creative ways of getting around the legal injunction against
spreading DeCSS. Projects ranged from having the program embedded in the code of a
portrait to printing the source code on a necktie design and fully describing the
descrambling algorithm in a
humorous haiku format.79
B. CULTURAL ACTIVISM OR COMMERCIAL TERRORISM?
Some legal commentators are not amused. In fact, a group of attorneys recently
proposed a new federal criminal statute addressing the “solicitation of commercial
terrorism” through the Internet, arguing that “in its present infant stage,” the Internet
resembles the lawless “Wild West” and needs far more regulation.80 The authors’
definition of “commercial terrorist” specifically includes “inflammatory” organizations
such as ®TMark, who “not only provide a blueprint for readers to perform acts of sabotage
and destruction, but also actively encourage such acts.”81 They argue that since the
79
<http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/>.
See Bruce Braun et al., Model Statute: www.commercial_terrorism.com: A Proposed Federal Criminal
Statute Addressing the Solicitation of Commercial Terrorism through the Internet, 37 HARV. J. ON LEGIS.
159, 160 (2000). The truth of the authors’ initial assertion – that the Internet was still in its “infant stage”
in the year 2000 – is questionable. I would argue that the Internet’s “infant stage” was actually in the early
1990s. The following chart shows the exponential growth in the number of host computers on the Internet
since August 1981:
Date
Hosts
08/81
213
08/83
562
10/85
1,961
12/87
28,174
10/89
159,000
10/90
313,000
10/91
617,000
10/92
1,136,000
07/93
1,776,000
<http://www.ocean.ic.net/ftp/doc/nethist.html>.
81
Bruce Braun et al., Model Statute: www.commercial_terrorism.com: A Proposed Federal Criminal
Statute Addressing the Solicitation of Commercial Terrorism through the Internet, 37 HARV. J. ON LEGIS.
159, 160–61 (2000). The authors note that websites like ®TMark “foster animosity towards the corporation
80
23
operators of these types of websites currently have little reason to fear prosecution, new
criminal laws are needed to specifically address the “type of destruction caused by
Internet terrorism.”82 The proposed statute states (in part):
Any information content provider who authors and then transmits or causes to be
transmitted via the Internet or interactive computer service in interstate or foreign
commerce any communication containing any demand or request that another
person engage in conduct constituting a felony in violation of state law or the laws
of the United States, shall be imprisoned not more than one-half the maximum
term of imprisonment or fined not more than one-half of the maximum fine
prescribed for the punishment of the crime solicited, or both; if the crime solicited
is punishable by life imprisonment or death, shall be imprisoned for not more than
twenty years.83
In other words, soliciting a felony through the Internet or via other online means will
result in jail time. In an attempt to cover the bulk of the activities organized by online
activist (or, in the drafters’ words, “terrorist”) groups, the proposed statute’s definition of
felony was drafted to include false advertising, solicitation of theft, and computer
sabotage.84 For example, asking people to alter commercial billboards (a la the
Adbusters culture jamming network and the Billboard Liberation Front) would be
considered false advertising, and coordinating a virtual sit-in (a la ®TMark or the
Electronic Disturbance Theater) would constitute computer sabotage.
Any statute that regulates the content of speech runs the risk of violating the
protections of the United States Constitution’s First Amendment. Courts are increasingly
and urge readers to take affirmative steps to tarnish the corporation’s image and to sabotage its operations.”
Id. at 160.
82
Id. at 160–61.
83
Id. at 170.
84
Id. at 172. The proposed statute’s definition of felony includes the solicitation of any felony rather than
just those involving violence, or threats of violence, to people or property. By eliminating language that
limits violations to solicitations of violent felonies, the drafters of the Model Statute believe that it will
apply to the felonies most commonly perpetrated by “Internet terrorists.” The elimination of the “violent
felony” requirement will also, the drafters hope, allow prosecutors to more effectively use the statute to
punish solicitations of non-violent crimes, such as computer sabotage. See id.
24
wary of the “chilling effects” on free speech that overbroad laws might cause.85 The
authors attempt to deal with this problem by relying on the Brandenberg standard, which
holds that speech that is “directed to inciting or producing imminent lawless action and is
likely to incite or produce such action” is not protected speech.86 They note that the
proposed statute falls within this category of unprotected speech because it only regulates
speech that solicits unlawful conduct, not speech that reflects mere advocacy.87
However, the authors fail to discuss the extremely fine line between the advocacy of
unlawful conduct (protected by the First Amendment) and the solicitation of unlawful
conduct (unprotected). It is unclear whether the proposed statute would ever pass serious
legislative and judicial scrutiny.
Ironically, the main websites where you can find this proposed Model Statute
(through a google search of “commercial_terrorism”) all link to the initial posting found
on ®TMark’s own press archive.88
85
See id. at 179–80.
See Brandenberg v. Ohio, 395 U.S. 444, 447 (1973) (holding that a statute which punished the mere
advocacy of lawless acts violated the First and Fourteenth Amendments).
87
Bruce Braun et al., Model Statute: www.commercial_terrorism.com: A Proposed Federal Criminal
Statute Addressing the Solicitation of Commercial Terrorism through the Internet, 37 HARV. J. ON LEGIS.
159, 179 (2000).
88
<http://rtmark.com/more/harvardjournal2000winter.html>. As far as I can tell, nothing has actually
happened with this proposal to date. I attempted to contact two of the three authors via email but did not
receive any response. The article did, however, win a Burton Award for Legal Achievement in June 2001.
<http://www.burtonawards.com/2001lfrecip.htm>.
86
25
IV. “JUST SUE US!” – SKINNY-DIPPING IN SHARK-INFESTED WATERS
Many of ®TMark’s ongoing projects are of questionable legality, especially with
regard to copyright and trademark laws. ®TMark is incredibly self-aware about this
dilemma (in fact, its own name/logo consciously utilizes the visual symbolism of
registered trademarks) but it welcomes the publicity for the greater good – to expose
perceived corporate wrongs. A number of Intellectual Property fund projects specifically
state being caught or sued as part of their goal.89 For example, project BSTR finds fault
with the fact that family-friendly Blockbuster edits the content of many of the videos they
rent. It asks for funds to “rent edited tapes [from Blockbuster] and record the original
[unedited] versions onto them – the object being to get caught, so that Blockbuster
89
Of course, a number of non-IP related ®TMark projects also invite direct civil disobedience and getting
caught. Project MRTR of the Health fund states: “Gather at your local place of government on April 20,
2002. [420 is a slang code for marijuana use.] Dress in suits: with one marijuana cigarette in your pockets.
At 4:20 PM, announce the end of the drug war, light up, and turn yourselves in for possession.”
<http://www.rtmark.com/fundhealth.html>.
26
presses charges (perhaps for vandalism).”90 As a comment upon the First Amendment
implications of the recent court decision enjoining the 2600.com website from posting
and linking to other sites containing the DeCSS program, which circumvented the
encryption of DVDs,91 ®TMark’s project DCSS asks members to “get caught pirating
software from a major manufacturer (Microsoft, for example) and argue that software,
not a protected form of speech, is not subject to ANY copyright protection.”92
Most of the larger, multi-member organizations involved in this modern-day civil
disobedience actually welcome the threat of lawsuits and the barrage of cease-and-desist
letters that their independently operating artist/activist counterparts dread. An individual
digital artist or website owner can be easily bullied (or even denied service by their
Internet service provider) by the cease-and-desist letters that are regularly sent out by the
various corporations who own intellectual property rights in what is being commented
upon or parodied. However, Internet activist organizations with calculated public
relations manpower and international publicity channels – such as Adbusters, ®TMark,
and openly copyright-thwarting musicians Negativland – view the threat of litigation as a
thrill and, more importantly, yet another opportunity to let the corporations make
themselves look foolish in public.
Ray Thomas of ®TMark mused, “We haven’t actually been sued, but we do have
this idea that being sued would be a wonderful opportunity to put corporate rights on
trial.”93 When Bloomberg sent a cease-and-desist letter asking ®TMark to stop mirroring
Bloomberg news stories without permission last year, they received an excited response
90
<http://www.rtmark.com/fundintel.html>.
Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).
92
For a complete list of these and other new and ongoing projects, see
<http://www.rtmark.com/listallprojects.html>.
93
E-mail from Ray Thomas, Spokesman, ®TMark, Jan. 31, 2002 (on file with author).
91
27
from ®TMark that stated, “Thanks! This is the first cease-and-desist threat we’ve ever
gotten!” ®TMark then sent Bloomberg a satirical cease-and-desist letter mirroring the
language of Bloomberg’s initial letter. Bloomberg “decided not to respond.”94
Paul Dechene, Campaigns Manager at Adbusters, echoed Thomas’ sentiments
about encouraging lawsuits:
As long as I’ve been here (a year and half) I haven’t seen or heard of any “cease
and desist” orders. Frankly, I’ve been kind of disappointed by the fact that we
haven’t been faced with any legal wrangling over that time. I know for a fact that
if we were to be threatened by any of our [targeted] corporations that Kalle (our
editor and founder) wouldn’t be pushed around by them. I think he’d revel in the
opportunity to take them on. We’d have an unprecedented opportunity to expose
the underside of corporate behaviour in the mainstream press – they’d be only
exacerbating the negative press they’re already receiving were they to try it.95
The projects that groups such as ®TMark, Adbusters, and Negativland participate
in are not always clearly illegal; rather, they usually push – and thus question and
comment upon – the boundaries of legal protection and the perceived arbitrariness of
courts facing intellectual property issues.
The following three sections – the projects, the law, and reality – provide a
framework for thinking about the breadth of intellectual property doctrines. Looking at
the projects outside the context of (and before discussion of) the relevant legal doctrines
prompts us to ask not only “Is this legal?” but, more importantly, “Should this be legal?”
In other words, how can we best balance freedom of speech with the protection of
intellectual property rights?
94
95
See <http://www.thestandard.com/article/0,1902,27408,00.html>.
E-mail from Paul Dechene, Campaigns Manager, Adbusters, Feb. 13, 2002 (on file with author).
28
A. THE PROJECTS
PDIS: Establish a grant for television and movie makers who do negative product
placement, or “product displacement.” Examples: The FedEx package arrives late
and mangled; someone throws up after eating at McDonald’s; someone spits out
their Starbucks coffee and says it tastes like shit; cameo of Rev. Billy being
thrown out of a Disney store as characters walk by; characters cursing at their
Microsoft software or AOL, etc.
MSCT: Create and distribute comic books or promote a website featuring
corporate mascots engaged in unsavory activities – the jolly green giant smoking,
the Michelin man pooping…
CRPN: Plant enticing pornographic videotapes in porn stores everywhere, with
models such as (a super-well-hung) Ronald MacDonald, (a dementedly horny)
Barbie, etc. – in other words, any trademark character which depends on its
assumed virtue.
WN95: Alter the bootup splash screen of a popular computer operating system so
that the logo of a rival company, or a rock, is displayed smashing through it
instead. A worker in the assembly or testing departments of DELL, Gateway,
Compaq, etc. could, after testing, overwrite the existing splash screen file with a
new one, which can be provided by RTMARK upon request. A number of the
computer/operating systems must be sold thus, and it must be reported in the
press.
FRCD: An employee of a software firm should change the licenses of a large
number of program CDs or manuals to read that the program can be distributed
freely and that anything else would run counter to the interests of the customer.
REMX: Major radio stations and department stores only play and sell censored
music. An alternative to this is a CD containing “Inverse Radio Remixes”: songs
with all lyrics removed except those removed from censored radio remixes. The
listener hears just the music track punctuated by the occasional “that’s bullshit” or
“so he shoots up his school.” Investment needed to press the already created
remix CD for placement on store shelves.96
Corporate America Flag Billboard:
Recently, Adbusters displayed a large “Corporate America” flag billboard in New
York’s busy Times Square as a commentary on the ever-increasing corporatization of the
96
These and other projects can be found at <http://www.rtmark.com/listallprojects.html>.
29
United States. The traditional 50 stars were replaced with corporate logos:
When Miramax, a Disney-owned movie studio, realized that they needed to shoot
some film scenes in Times Square, they asked Adbusters to: (a) take the billboard down
for a week or two; (b) cover up the billboard; or (c) change the billboard’s corporate
logos back into stars.97
Adbusters refused to remove the billboard. Instead, they solicited the public for
anti-Disney flag designs to take its place:
97
<http://adbusters.org/campaigns/flag/nyc/>.
30
B. THE LAW
1. IN THEORY: INTELLECTUAL PROPERTY LAWS PROTECT THE
ARTIST/CREATOR/INNOVATOR
Intellectual property law is comprised of three main branches: patent, copyright,
and trademark. A patent creates a limited monopoly in order to encourage the production
of inventions, with its coverage including processes, machines, and compositions of
matter. For example, I can obtain a patent for a new scientific process that has taken me
years to research and develop. (Although I have limited the scope of this paper to
copyright and trademark issues, it is important to note that activist groups such as
Adbusters and ®TMark are keenly aware of patent-related issues as well, especially within
the context of global public health. Both groups have openly criticized the World Trade
Organization’s handling of pharmaceutical patents.98)
Copyright law covers an increasingly broad range of literary and artistic
expressions, including books, music, film, poetry, paintings, sculpture, dramatic works,
and computer programs. A copyright gives the owner the exclusive right to
sell/distribute, perform, reproduce, display, make derivative works, and license the work.
Facts and ideas by themselves are not copyrightable, but the author’s particular
expression of an idea or a series of facts can be protected by copyright. For example, I
could copyright this paper, which is my (hopefully unique) expression/combination of
98
Paul Dechene from Adbusters is passionate about the potential harm of many IP laws:
To protect their patents, the pharmaceutical industry is willing to let AIDS/HIV patients in the
developing world die. Let’s clarify that: the defenders of intellectual property laws have a body
count. I mean…that’s just fucking evil. And I’m supposed to believe these laws are there to
protect the little people?
E-mail from Paul Dechene, Campaigns Manager, Adbusters, Feb. 13, 2002 (on file with author). The
Adbusters print magazine regularly publishes articles about the international pharmaceutical industry. See
<http://adbusters.org/magazine/35/pharm.html>; <http://adbusters.org/magazine/39/terrors/2.html>. One
banner ad available from ®TMark asks, “What would the pharmaceutical industry do without AIDS?”
<http://www.rtmark.com/bannerads.html>.
31
facts and ideas, but I could not actually copy the facts and ideas incorporated herein –
nobody can.
Trademarks generally protect words, symbols, and other attributes that serve to
identify the nature and source of goods or services. These include corporate and product
names, symbols, logos, slogans, pictures, designs, even colors and smells.99 For example,
Nestlé (parent company of Wonka) has registered trademarks for the following candies:
Nerds, Bottle Caps, Everlasting Gobstopper, Fruit Runts, Laffy Taffy, Lick-m-aid Fun
Dip, Pixy Stix, Tangy Taffy, Tart ‘N Tinys and Shock Tarts.100 As one author has noted,
many of our culture’s best known and most powerful symbols are trademarks. Not
surprisingly, the “owners” of these trademarks are often the most powerful and wealthy
corporate actors in North American society.101
Because so much time, money, and effort is spent on the creation and marketing
of popular trademarks, trademark holders are extremely wary of any form of use which
might harm their product or company’s “good” name. Anti-dilution laws protect
trademarks from negative associations that might harm the value and unique selling
power of the mark. The owner of a trademark can bring an action against any use that
dilutes the distinctive quality of that mark, either through “blurring” or “tarnishment” of
the trademark.102 Blurring occurs when the distinctive power of the mark is weakened
99
This synopsis of patent, copyright and trademark law is based upon the introduction to a popular
intellectual property textbook. See ROBERT P. MERGES, ET AL., INTELLECTUAL PROPERTY IN THE NEW
TECHNOLOGICAL AGE 23–27 (2d ed. 2000). For a helpful online collection of basic IP law resources, see
<http://eon.law.harvard.edu/property/library/primerlib.html>. The United States Patent & Trademark
office’s kid-friendly primer also provides a quick overview of IP law that is much easier to comprehend
than most attorney-friendly primers: <http://www.uspto.gov/go/kids/kidprimer.html>.
100
<http://www.wonka.com/Home/flash_home_wonkaaahhh.html>.
101
Robert J. Shaughnessy, Note, Trademark Parody: A Fair Use and First Amendment Analysis, 72 VA. L.
REV. 1079, 1088–92 (1986); Rosemary J. Coombe, Cultural Appropriations: Intellectual Property Laws and
the Cultural Politics of Postmodernism 71 (1992) (J.S.D. dissertation, Stanford University).
102
<http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#8>.
32
through its identification with dissimilar goods. Tarnishment occurs when the mark is
cast in an unflattering light, typically through its association with inferior or unseemly
products or services. For example, Toys ‘R’ Us successfully brought a tarnishment claim
against adultsrus.com, a pornographic website.103
2. POWERFUL ESCAPE HATCHES FOR COMMENTARY – SOMETIMES
If copyright and trademark protections were completely exclusive, they would
leave no room for any type of use (commentary, parody, creative reworking, etc.) by
those who are not original authors or trademark-holders. For this reason, both copyright
and trademark doctrines provide legal “escape hatches,” or exceptions, which allow
certain uses/manipulations of protected works without fear of infringement.
The main copyright escape hatch is the “fair use” doctrine. You don’t need a
license to use a copyrighted work if your use is deemed to be within the boundaries of
traditional fair use purposes, which generally include criticism, comment, news reporting,
teaching, scholarship, and research.104 For example, someone writing a book review may
use portions of the book they are reviewing in order to comment about it. However,
determining whether or not a particular use of a work is fair or not fair (and therefore
permissible or illegal) is not so clear. Legal decisions are made on a case-by-case basis,
taking into account four factors:
Factor #1: Purpose and character of the use, including whether use is of a
commercial nature or for non-profit educational purposes. Courts are most
likely to find fair use where the use is for a noncommercial purpose, such as a
book review; a commercial purpose usually weighs against a finding of fair use.
Factor #2: Nature of the copyrighted work. Courts are most likely to find fair
use where the copied work is a factual work rather than a creative one. The law
103
104
<http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#8>.
<http://www.laderapress.com/lib/laderapress/primer.html>.
33
generally recognizes a greater need to disseminate factual works than works of
fiction.
Factor #3: Amount and substantiality of the portion used in relation to the
copyrighted work as a whole. The less copyrighted material is used, the better.
Courts are most likely to find fair use where what is used is a tiny amount of the
protected work. However, if what is used is small in amount but substantial in
terms of importance, a finding of fair use becomes less likely.
Factor #4: Effect of the use on the potential market for or value of the
protected work. In general, any use that supplants or diminishes the normal
market for the original work is considered an infringement, but a use does not
necessarily have to have an effect on the market to be an infringement.105
These factors may be interpreted broadly and given different weight. For
example, in a prominent legal decision regarding fair use in parody, the Supreme Court
used the four-factor test outlined above to reason that 2 Live Crew’s parody of the Roy
Orbison song “Oh, Pretty Woman” was fair use.106 Even though the lower court relied
upon the first factor to reason that since the use was for a commercial purpose (the sale of
2 Live Crew’s album) it was not fair use, the Supreme Court held that the
commercial/non-commercial distinction was only one element of the first factor, which
was ultimately outweighed by the work’s status as a parody of the original song.107
The main trademark escape hatches are parody and non-trademark (or
“nominative”) use. Although there is no delineated multi-factor test for determining
whether a parody defense is valid, certain parodies of trademarks may be permissible if
they are not too directly tied to commercial use. Borrowing in theory from the copyright
fair use doctrine, courts appear to be more sympathetic when parodies are less
105
See <http://www4.law.cornell.edu/uscode/17/107.html>; ROBERT P. MERGES, ET AL., INTELLECTUAL
PROPERTY IN THE NEW TECHNOLOGICAL AGE 494–98 (2d ed. 2000).
106
See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
107
See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 571 (1994).
34
commercial and less sympathetic when parodies involve commercial use of the
trademark.108
Nominative use has been found in situations where it is “virtually impossible to
refer to a particular product for purposes of comparison, criticism, point of reference or
any other such purpose without using the mark.”109 For example, the Ninth Circuit Court
of Appeals recently held that it was permissible for Terri Welles to use the phrase
“Playboy Playmate of the Year 1981” on her website without infringing Playboy’s
trademark because she was only identifying herself as a past “Playmate of the Year,” not
implying any current endorsement by Playboy.110 The same court also held that in
trademark infringement cases in which the defendant raises a nominative use defense, the
eight-factor “likelihood of confusion” test (often used in trademark determinations
regarding parody) is not appropriate.111 Instead, a three-factor test should be applied in
order to determine whether or not the use is nominative use:
Factor #1: The product or service is not readily identifiable without use of the
mark.
Factor #2: Only so much of the mark may be used as is reasonably necessary to
identify the product or service (i.e. logos are generally not permitted).
108
<http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#8>.
New Kids on the Block v. News America Pub., Inc., 971 F.2d 302, 306 (9th Cir. 1992).
110
See Playboy Enters. v. Welles, 279 F.3d 796 (9th Cir. 2002).
111
The “likelihood of confusion” test outlined in Sleekcraft calls for consideration of the following eight
factors, noting that the list is “not exhaustive”:
1. strength of the mark;
2. proximity of the goods;
3. similarity of the marks;
4. evidence of actual confusion;
5. marketing channels used;
6. type of goods and the degree of care likely to be exercised by the purchaser;
7. defendant’s intent in selecting the mark; and
8. likelihood of expansion of the product lines.
AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348–49 (9th Cir. 1979).
109
35
Factor #3: The user must do nothing to suggest sponsorship or endorsement by
the trademark holder.112
The basic idea is that the use of a trademark is sometimes necessary to identify and talk
about another party’s products and services. When the above conditions are met, the use
will generally be permissible.113
3. IN PRACTICE: SOMETHING’S ROTTEN IN THE STATE OF INTELLECTUAL PROPERTY LAW
Only one thing is impossible for God:
to find any sense in any copyright law on the planet.
– Mark Twain’s Notebook, 1902–1903
IP, almost per se, is intriguing. To hazard a guess as to why that’s so, I’d say that
most geeks, deep in their hearts, know that there’s something profoundly fucked
with current thinking on IP in a digital age, and are either keen to come up with
useful alternatives or enjoy sitting back and watching the carnage as the whole
thing unravels.
– Danny O’Brien, NTK Now114
Although the doctrines of copyright and trademark law may appear to be
straightforward and easy to apply, their practical application is often haphazard and
arbitrary. As described above, courts regularly employ multi-factor tests in order to
determine the outcome of a particular set of facts on a case-by-case basis. Even though
these tests were designed in order to help courts reach logical and well-reasoned
decisions, the broad discretion of courts with regard to the weight given to each factor
and the overall subjectivity with which these multi-factor tests are handled have resulted
in a somewhat random and confusing state of legal limbo.
112
In 2002, the Ninth Circuit explicitly reaffirmed the three-factor test it had originally adopted a decade
earlier in New Kids. See Playboy Enters. v. Welles, 279 F.3d 796, 801(9th Cir. 2002).
113
<http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#8>.
114
See <http://www.onmagazine.com/on-mag/reviews/article/0,9985,13105,00.html>, quoting Danny
O’Brien from NTK Now. See generally <http://www.ntk.net/>.
36
The multi-factor tests used to reason through intellectual property cases are
problematic in at least three ways: they distort notions of fairness, breed uncertainty in
potential defendants, and force judges to make aesthetic value judgments. The legal tests
distort notions of fairness because they permit courts to bend over backwards to reason
toward the result they want by highlighting factors (or parts of factors) that tip the scale
in favor of one party.115 They breed uncertainty because, in part due to this arbitrariness,
a potential defendant (who starts off as the recipient of a cease-and-desist letter filled
with a variety of threats in legalese) never really knows which way his case will go in
court. He will never know if his work will fall under the lucky “escape hatches” of fair
use or parody because the legal precedent of cases with similar facts and issues has
resulted in completely differing outcomes in the past. Sometimes it’s fair use, sometimes
it isn’t – why risk the costs of litigation for a toss-up?
Finally, leaving aesthetic judgments to judges is part of the reason that these
supposedly rational tests come out so differently every time. Justice Holmes of the
Supreme Court noted in Bleistein, a landmark copyright case regarding protection for
chromolithographs in 1903: “It would be a dangerous undertaking for persons trained
only to the law to constitute themselves final judges of the worth of pictorial illustrations,
outside of the narrowest and most obvious limits.”116 Although courts know that they are
ill-prepared to make these kinds of aesthetic judgments, they still do so regularly,
especially with regard to copyright and trademark matters.
115
This “Fair Use in Copyright” primer walks through an example of how the four “fair use” factors
outlined in the copyright statute often lead to conflicting and confusing results.
<http://www.bitlaw.com/copyright/fair_use.html#example>.
116
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903).
37
As Keith Aoki has explained:
It is on the edge of art and industry, the subjective and objective, the functional
and the aesthetic, that our inherited and contingent mediators have failed to
work….Seeking to mediate the contradictory tensions infesting the boundary
between aesthetics and utility, judges, administrators, and legislators have
resorted to even more incoherent and abstract tests to deny that they engaged in
aesthetic value judgments proscribed by Bleistein.117
Similarly, although courts technically recognize a parody defense to trademark
infringement, the precise contours of such a defense are difficult to outline with any
precision.118 This makes it difficult – if not impossible – for a potential parodist to know
when (or if) he is overstepping legal boundaries. For example, in holding that “Gucchie
Goo” diaper bags were not protected under the parody defense, a New York court noted
[italics added for emphasis]:
It is not inconceivable that at a glance, the “GUCCHI” mark on what appears to
be a tote bag could mislead members of the public into believing that the plaintiff
has allowed its mark to be copied or that plaintiff is somehow associated with the
manufacture, promotion, and sale of the “diaper bag.”… The fact that the
offending product was intended only as a joke is of no consequence. A wellknown registered trademark such as “GUCCI” may still be protected from such
ridicule by a preliminary injunction.119
Parody protection flew out the window in favor of other factors. Similarly, in 1972, the
Coca-Cola Company enjoined entrepreneurs from marketing “Enjoy Cocaine” posters
which parodied the popular slogan “Enjoy Coca-Cola.” The court found that
impermissible damage to Coca-Cola’s reputation would be caused by this unwholesome
association with an illegal drug.120
117
Keith Aoki, Contradiction and Contrast in American Copyright Law, 9 CARDOZO ARTS & ENT. L.J.
303, 357 (1991), available at <http://cyber.law.harvard.edu/ipcoop/91aoki.html>.
118
<http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm>.
119
Gucci Shops, Inc. v. R. H. Macy & Co., 446 F. Supp. 838, 840 (S.D.N.Y. 1977).
120
Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183, 1191 (E.D.N.Y. 1972); see also Rosemary J.
Coombe, Cultural Appropriations: Intellectual Property Laws and the Cultural Politics of Postmodernism
72 (1992) (J.S.D. dissertation, Stanford University).
38
Epitomizing the arbitrary application of multi-factor tests, a string of later cases
used various isolated factors from Coca-Cola to reach completely different conclusions
regarding trademark-related parodies. Some held for plaintiffs, others for defendants.
Using the “likelihood of confusion” test, one court focused on lack of proof of “actual
confusion” in holding that “Petley Flea Bags” did not infringe the trademark of “Tetley
tea bags.” The Tetley court distinguished itself from Coca-Cola by noting that in CocaCola, a mother in Pennsylvania complained to the Coca-Cola Company about the “Enjoy
Cocaine” poster she saw at a shopping mall; this was considered factual evidence of
actual confusion about the source of the poster.121 Since there was no such evidence of
actual consumer confusion in Tetley, the parody was permissible. (Should legal
outcomes hinge upon whether or not a mother at a shopping mall complains about your
parody?) Some courts based their decisions on the “commercial purpose” factor, and
others reasoned that parodies are sufficiently confusing when the “same color scheme and
script” as the original are used.122
The use of trademark-based “likelihood of confusion” analysis makes parody
cases far too unpredictable and inconsistent with free speech interests.123 In fact, First
Amendment concerns are never even mentioned in a number of trademark parody
cases.124 Instead, we are stuck with a random assortment of judges trying to draw the line
between what is funny-but-still-somehow-appropriate (protected under parody or fair
121
See Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F. Supp. 785, 793 (E.D.N.Y 1983).
See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32 (1st Cir. 1987); General Mills, Inc. v.
Henry Regnery Co., 421 F. Supp. 359, 361 (N.D. Ill. 1976).
123
See Steven M. Perez, Confronting Biased Treatment of Trademark Parody Under the Lanham Act, 44
EMORY L.J. 1541 (1995).
124
See Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497 (2d Cir. 1996) (holding that
defendant’s use of a character named “Spa’am” in a movie was an acceptable parody of the plaintiff’s
famous registered mark “Spam” for meat-related products); Lyons Ptshp. v. Giannoulas, 179 F.3d 384 (5th
Cir. 1999) (holding that the use of character resembling children’s show star “Barney” in routines at
sporting events was a parody for purposes of trademark and copyright law).
122
39
use) and what is maybe-funny-but-too-offensive-or-questionable-to-protect (held to be
copyright or trademark infringement).
C. REALITY
Frustrated with the arbitrariness of legal outcomes and eager to highlight the
overbreadth of intellectual property protection, Adbusters, ®TMark and Negativland have
effectively adopted a “just sue us” attitude. These groups have no problem with
advocating illegal acts – or acts that straddle the fence of legality – and using civil
disobedience to help change (or completely dismantle) these legal doctrines.
1. TRADEMARK INFRINGEMENT
GO AHEAD, MAKE OUR DAY: ABSOLUT HARDBALL WITH ADBUSTERS
A decade ago, Adbusters faced a trademark-infringement tussle that seems to
have set the tone for their lack of legal wrangling ever since.
In the early 1990s, the Adbusters print magazine published a spoof ad of Absolut
Vodka entitled “Absolut Nonsense,” featuring a small-print message reading, “Any
suggestion that our advertising campaigns have contributed to alcoholism, drunk driving
or wife and child beating is absolute nonsense. No one pays attention to advertising.”125
In February 1992, Absolut threatened a lawsuit, claiming that the spoof ad had caused
“irreparable damage”126 to its reputation. Absolut demanded a published
retraction/apology, the destruction or surrender of all remaining “tainted” issues, and a
promise that Adbusters would never again publish similar work. Adbusters refused and
125
A copy of Absolut Nonsense can be found here: <http://topher.france-techno.com/absns.html>.
This is a common complaint in trademark infringement lawsuits. Plaintiffs almost always claim that the
alleged infringement of their federally registered trademark will cause (or is causing) irreparable damage to
their company’s goodwill and reputation.
126
40
instead sent out a press release entitled “Absolut Vodka Tries to Censor Magazine,”
challenging Absolut to a public debate about alcohol advertising.127 Adbusters also told
Absolut to “go ahead” and file a lawsuit.128
Absolut did not reply. In the following issue of the print magazine, Adbusters
ran another spoof ad titled “Absolute Silence,” featuring a coffin in place of the vodka
bottle.129 Even though the spelling in the spoof ad was changed from “Absolut” to
“Absolute” in order to avoid potential consumer confusion, Keith McIntyre, the national
advertising manager for Absolut Vodka Canada advised Adbusters not to run the
advertisement, warning, “If you want Absolut to play hardball, then Absolut will play
hardball.”130
Adbusters did not stop. In another attempt to engage Absolut in a public
discussion highlighting First Amendment concerns stemming from the bullying of artists,
parodists and commentators by corporations, spokesman Kalle Lasn stated:
The impact of this advertising is undeniable, as is the right of our publication to
comment on it….We believe that there is an important underlying issue at stake
here – the ability of large private corporations to censor and control public debate,
to stifle free expression and to dominate our mental and cultural environments
with their marketing and public relations agendas.
Absolut did not play hardball. Realizing that any lawsuit would only give
Adbusters exactly the kind of publicity they wanted, Absolut “quickly lost its fighting
spirit and beat a hasty retreat” from the challenge, dropping the lawsuit immediately.131
127
<http://multinationalmonitor.org/hyper/issues/1992/12/mm1292_06.html.>; see also
<http://www.ryerson.ca/rrj/content/print/backissues/lynch.html>.
128
E-mail from Paul Dechene, Campaigns Manager, Adbusters, Feb. 13, 2002 (on file with author).
129
<http://adbusters.org/spoofads/alcohol/absolutsilence/>.
130
<http://multinationalmonitor.org/hyper/issues/1992/12/mm1292_06.html.>
131
Adbusters founder Kalle Lasn elaborates, “[Absolut executives are] terrified of taking us on in a public
debate about alcohol advertising and its impact on society….They are worried that their multibillion dollar
campaign might suddenly backfire.” <http://multinationalmonitor.org/hyper/issues/1992/12/mm1292_
06.html>.
41
For the past ten years, Adbusters has continued to post and distribute Absolut spoof ads
without any further threats of litigation. A number of these spoof ads, including “Absolut
Impotence,” are now available on the Adbusters website.132
2. COPYRIGHT INFRINGEMENT
TRULY UNDERGROUND MUSIC: DECONSTRUCTING BECK
“A good composer does not imitate, he steals.”
– Igor Stravinsky133
With the help of musicians Negativland and distributors Illegal Art, ®TMark
sponsored a campaign to create and distribute Deconstructing Beck, a 13-track CD which
was created entirely from (uncleared) digitally reprocessed samples taken from Geffenrecording-artist Beck Hansen’s own recordings. One “song” on the compilation CD
actually chopped up a Beck recording into 2,500 digital segments and strung them back
together in a completely different order.134 As one music review noted, “Deconstructing
Beck advocates for a world in which cultural producers would be able to appropriate from
<http://adbusters.org/spoofads/alcohol/>. Ironically enough, Absolut’s advertising company was sued
for trademark infringement by Vail Resorts Inc. in 1998 after publishing an (authentic) advertisement
entitled “Absolut Vail,” featuring an Absolut bottle wrapped in a cast, in a number of ski magazines. See
<http://www.businessweek.com/bwdaily/dnflash/jan1998/nf80113c.htm>; <http://denver.bizjournals.com/
denver/stories/1998/01/19/weekinbiz.html>.
133
PETER YATES, TWENTIETH CENTURY MUSIC (1967); <http://www.xrefer.com/entry/208555>. Musical
sampling, visual parody, and other types of artistic appropriation have been taking place for hundreds, if
not thousands, of years. For example, Belgian Surrealist artist René Magritte famously parodied French
Neoclassicist painter Jacques-Louis David’s Madame Récamier by replacing David’s passively reclining
woman with a reclining coffin. See JACQUES MEURIS, RENÉ MAGRITTE 68–71 (1994). A number of
“classical” composers – including Bach, Mozart, Mahler, Beethoven and Handel – openly borrowed from
folk music, their own previous works, and the works of one another. See KEMBREW MCLEOD, OWNING
CULTURE: AUTHORSHIP, OWNERSHIP, AND INTELLECTUAL PROPERTY Law 23 (2001).
134
See KEMBREW MCLEOD, OWNING CULTURE: AUTHORSHIP, OWNERSHIP, AND INTELLECTUAL PROPERTY
Law 120 (2001). The Detritus website provides the track listing and audio snippets from Deconstructing
Beck: <http://detritus.net/illegalart/beck/index.html>. The Deconstructing Beck CD may be purchased
directly from Illegal Art, with checks made out to “Smith”: <http://detritus.net/illegalart/catalog/>.
132
42
one another at will, a world of infinite sampling, a world in which everyone could be
Beck.”135
Openly disregarding copyright laws was only one part of the project. The
additional irony here is that Beck, like many other popular recording artists such as the
Beastie Boys, DJ Shadow, De La Soul, Public Enemy, and the Chemical Brothers, is
himself a major pioneer of digital audio sampling.136 Beck’s most successful album,
Odelay, contained hundreds of samples taken from other sound recordings and was
produced by the Dust Brothers, the same duo that worked with the Beastie Boys’ on their
historically sample-heavy album Paul’s Boutique.137 With this in mind, Negativland and
®TMark sat back and wondered how Beck would react to the compilation project. Not
surprisingly, Beck’s record label and attorneys began speaking for him, firing off ceaseand-desist letters and threatening lawsuits almost immediately.
The now-infamous initial email from Beck’s attorney to ®TMark stated, “Bragging
about copyright infringement is incredibly stupid. You will be hearing from me,
Universal Music Group, BMG Music Publishing and Geffen Records very shortly. In the
mean time [sic], why don’t you email me your phone number and mailing address to
make things a little easier?”138
135
<http://eserver.org/bs/reviews/1998-07-30-1.22PM.html>. For more information about the media
response to Deconstructing Beck, see <http://www.onmagazine.com/on-mag/reviews/article/
0,9985,13105,00.html>.
136
This paper cannot even begin to do justice to the power and influence of sampling in popular music.
For example, an incredibly long list of popular artists ranging from the aforementioned sample-heavy
artists such as Beck, De La Soul, and the Chemical Brothers to more mainstream artists such as Madonna,
Depeche Mode, Destiny’s Child and Dr. Dre have all sampled from Kraftwerk. A list of artists who have
incorporated Kraftwerk samples into their music can be found at <http://www.cheebadesign.com/
perfect/kraftwerk/sample.htm>. Kraftwerk’s homepage is located at <http://www.kraftwerk.com>.
137
See KEMBREW MCLEOD, OWNING CULTURE: AUTHORSHIP, OWNERSHIP, AND INTELLECTUAL PROPERTY
Law 120 (2001).
138
See “The Geffen lawyer speaks” tab, <http://www.rtmark.com/lawletters.html>. This exchange
actually provides interesting insight into the difficulty of suing (or threatening to sue) ®TMark because of
43
As Mark Hosler from the socially/politically/educationally active music group
Negativland explained, after they wrote a letter to Beck and his management to give the
Deconstructing Beck project more public exposure, Negativland received a “patronizing”
reply from Beck’s attorney along the lines of, “What the fuck do you guys know about
copyright law? You’re just a bunch of dumb musicians.”139 (The whole collection of
back and forth communications between Negativland, Geffen Records, BMG
Entertainment, Illegal Art, various outside legal counsel, and “a Geffen manager who has
since requested anonymity” is extremely entertaining reading. Copies of these letters and
emails can be found under the “nasty letters” tab of ®TMark’s website.140)
Not long after Negativland entered the picture, the attorneys involved in the
Deconstructing Beck dilemma realized that Negativland knew much more about
intellectual property law than they had assumed. For years, Negativland has devoted part
of their website to “Intellectual Property Issues,” providing links to over 50 articles,
essays, statutes and other resources pertaining to copyright, trademark, and general
intellectual property issues.141 Eventually, the letters and emails stopped, as did the threat
of a lawsuit. Word got to Negativland from Geffen Records (“off the record”) that the
threat of bad press that might result from having Negativland involved in the case had
played a significant part in Geffen backing off.
their anonymity and lack of contact information. It is quite difficult to serve a legal complaint on an
unknown party with an unknown physical address.
139
E-mail from Mark Hosler, Negativland, Feb. 8, 2002 (on file with author). The text of one email from
Beck’s attorney to Negativland states, “What Beck, Geffen, etc. plan to do is certainly none of your
business, as far as I can tell. Furthermore, I kind of resent your unsolicited criticism of my knoeledge [sic]
of copyright law. But hey, it’s a free country, and I guess you have a lot of free time on your hands.” See
“The Geffen lawyer sees fit to respond” tab, <http://www.rtmark.com/lawletters.html>.
140
<http://www.rtmark.com/lawletters.html>.
141
The Negativland Intellectual Property Issues website is an excellent resource for people with all levels
of interest and experience with IP laws. It includes everything from basic legal primers to theoretical
essays and legal arguments on a variety of IP issues and doctrines.
<http://www.negativland.com/intprop.html>.
44
This is precisely the kind of public victory that Internet-based cultural activist
groups revel in. As Mark Hosler from Negativland noted,
We want to be as outside of the [legal] system as we can possibly be…because it
was never set up to be a level playing field in the first place. The current state of
our nation’s IP laws is horrible. It’s completely motivated by corporate interests
and has nothing to do with the public good anymore….If you have money, you
win. Well, not this time [Deconstructing Beck] – we won in the court of public
opinion.142
Even though their goals and interests are not always perfectly aligned, these
organizations operate with a strong sense of camaraderie, connectivity and
interdependence. For example, Negativland happen to be the Intellectual Property fund
managers for ®TMark, and Deconstructing Beck distributor Illegal Art’s email and web
service is provided by Detritus.net, an online activist group dedicated to the artistic reuse
of pre-existing culture.143 (Detritus is the same group that adopted Mark Napier’s
Distorted Barbie project, which is discussed in section 4 of this paper.) Detritus founder
and collage artist Steev Hise explains, “We’re happy to be helping out with the Beck
project….Copyright laws are too restrictive, and they’re counterintuitive. These laws in
their present form are there just to funnel money to corporations, not to protect artists. As
artists we need to fight that.”144 (As far as organizational styles go, it is not surprising
that Illegal Art’s driving force, “Philo T. Farnsworth,” uses a pseudonym just like the
managing members of ®TMark and “Jack Napier,” founder of the Billboard Liberation
Front.)
Negativland emphasizes that the group obviously understands the importance and
necessity of some form of copyright protection because they are musicians themselves.
142
143
144
Telephone interview with Mark Hosler, Negativland, (Apr. 4, 2002).
See <www.detritus.net>.
<http://www.rtmark.com/deconstructingbeck.html>.
45
Spokesman Mark Hosler explains, “We’ve never been anti-copyright, we just think that
fair use needs to be much broader.”145
3. DOMAIN NAME BULLYING
THE POWER OF PR HELL: THE ETOY/ETOYS FIASCO
The most powerful trump card that these cultural activist organizations hold over
the heads of large corporations – the unparalleled ability to create public relations
nightmares – is simple and highly effective. The same corporations that are quick to
churn out cease-and-desist letters and threaten expensive litigation are extremely wary of
high-profile negative publicity (ranging from email campaigns exposing questionable
corporate practices to mass consumer boycotts of goods) which may result in a decline in
their stock prices. One such landmark PR fiasco coordinated by ®TMark in 1999 was the
145
Telephone Interview with Mark Hosler, Negativland, (Apr. 5. 2002).
46
battle that ensued when online toy distributor eToys sued the Swiss experimental Internet
activist/entertainment/art group etoy over the ownership of the domain name
www.etoy.com.146
Although “electronic stimulation for the new generation”147 provider etoy was
officially incorporated in Zurich in 1994, online since 1994, and using the web address
www.etoy.com since 1995,148 corporate retailer eToys, Inc., which was founded in 1996
and online since 1997, managed to convince a court to force etoy stop using its website
because eToys held a U.S. trademark for its name.149 (It seems that etoy’s swift rejection
of eToys’ offer to buy the domain name for approximately $500,000 in cash and stock
options prompted eToys to take legal action in its attempt to secure ownership and use of
www.etoy.com.)
What eToys didn’t realize was that by bringing this lawsuit, they had stepped into
an Internet-based battle that they were ill-equipped and unprepared to handle. As one
®TMark supporter pointed out, the fight was not solely about the lawsuit; rather, it was
symbolic of a many larger goals. First, it allowed online activists to point out how the
Internet was becoming more and more “corporatized,” with venture-capital-rich startups
like eToys eager to buy out the domain names of “little guys” like etoy who had been
around (even if underground) for years.150 Second, the ensuing media coverage allowed
®TMark to publicly speak out about how the “domain-name lawsuits companies slap on
artists are just like the [SLAAP – Strategic Lawsuits Against Public Participation]
146
<http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2000/01/03/BU60889.DTL>.
<http://www.t0.or.at/~diagonale/hypermed/etoy.htm>.
148
I remember stumbling upon the etoy website during my first year of college (1995), somehow ending
up subscribing to it, and being bombarded with creative pop-up and email invitations to participate in huge
international rave parties and performance art projects. (Since half of the emails were not in English, I
generally had no idea what was going on.)
149
<http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2000/01/03/BU60889.DTL>.
150
See <http://www.nytimes.com/library/tech/00/08/circuits/articles/17rtma.html>.
147
47
lawsuits they spring on ordinary people when they are fighting toxic waste in their
communities.”151
A variety of denial-of-service attacks were launched against the eToys website
during the weeks before Christmas, frustrating many online customers who were faced
with slow service.152 ®TMark also put together the etoy fund,153 a group of projects such
as “Quit eToys!” and “Disinvest!,” which asked eToys employees to quit and encouraged
the public to comment on numerous investment bulletin boards (such as Fool.com and
Yahoo! Finance) to inform shareholders about what eToys was doing.
The “informational” postings to these financial-news websites varied greatly in
length and tone. They ranged from the formal and factual:
Online toy retailer etoys.com (ETYS) has already lost $3.5 billion in market value
thanks to an electronic warfare campaign waged by RTMark.com, Eviltoy.com,
the Toywar resistance network, the Electronic Disturbance Theatre, and many
other individuals and groups. It started early this month when eToys lawyers shut
down etoy.com, a site run by several european [sic] artists, which had existed
several years before eToys.com. On Dec. 10, Moore Capital Holdings, one of the
largest hedge fund groups, significantly cut its holdings in etoys.com. At noon on
Dec. 15, Electronic Disturbance Theatre began a distributed attack against
eToys.com that was reported by CNN the day after as having caused an
appreciable slowdown in the eToys servers. The attacks continue, with hackers
from around the world targeting eToys.com for denial of service attacks and for
more direct forms of interference. Protesters have also jammed eToys’ incoming
telephone switchboards, blocking orders and customer service calls.
Id. “SLAPP” suits are civil complaints in which the alleged injury is the result of petitioning or free
speech activities. Some organizations have classified the threats sent to Internet service providers alleging
defamation, copyright and/or trademark infringement as “cyber-SLAPP” suits.
See <http://www.chillingeffects.org/johndoe/faq.cgi>. Much like cease-and-desist letters, SLAPP suits
have a silencing effect on free speech because defending these lawsuits requires time, money and resources.
Traditional SLAPPs are typically brought by corporations, real estate developers, or government officials
and entities against individuals who openly oppose them on public issues. They are usually based on
ordinary civil tort claims such as defamation and conspiracy. More importantly, the claims are often
legally meritless – for example, writing a letter complaining about a new development in your
neighborhood is hardly “interference with prospective economic advantage,” a common SLAPP civil
claim. See California Anti-SLAPP Project, <http://www.casp.net/intro.html>.
152
See <http://www.thestandard.com/article/display/0,1151,13483,00.html>.
153
<http://www.rtmark.com/etoycampaigns.html>.
151
48
Given that eToys faces stiff competition from amazon.com (AMZN), ToysRUS,
and other online retailers, the effect could be catastrophic – particularly while
eToys is incapable of taking telephone orders and taking customer service calls.
Although eToys’ frivolous lawsuit will likely be thrown out of court on Dec. 27,
damage to eToys will likely continue long after. Also, by faltering this season in
its only market, eToys has created golden opportunities for its competitors to
build brand and market share at a critical time in the growth of the Internet.154
To the more casual:
This stock’s a dog.... eToys has no idea how to manage money – pissing off the
whole hacker world is not a very good idea, clearly, and shockingly stupid for a
company that after all is on the net.... Under U.S. law shareholders can lead a
class-action lawsuit against management that willfully and stupidly loses their
money – and that’s what we’ve got here. Pretty soon it’s going to be necessary to
decide whether to join that suit, or to keep losing money.155
To the plainly stated:
Banning art is bad business.156
Simultaneously, a team of toy designers invented the etoy fund online game,
whose avowed aim was to destroy eToys, Inc. and whose realistic intent was to make
eToys’ stock value go as far down in value as possible.157
It worked.158 eToys’ stock value dropped quickly, as did their lawsuit against
etoy. In fact, eToys agreed to reimburse etoy up to $40,000 in legal fees.159 ®TMark
received more publicity than ever, and etoy continues its culture-jamming interactive
performance art/commentary on www.etoy.com and in the offline world as well.160
Adbusters, ®TMark and Negativland are extremely lucky because they have the
power to “out-PR” many of the large corporations that threaten this sort of litigation.
154
155
156
157
158
159
160
<http://www.rtmark.com/etoysinvestnotes.html>.
<http://www.rtmark.com/etoysinvestnotes.html>.
<http://www.rtmark.com/etoysinvestnotes.html>.
<http://www.rtmark.com/etoymain.html>.
<http://www.rtmark.com/etoy.html>; see also <http://www.heise.de/tp/english/inhalt/te/5843/1.html>.
<http://www.thestandard.com/article/display/0,1151,13483,00.html>.
<http://www.etoy.com/>; see also <http://www.etoy.com/>.
49
Unfortunately, thousands of independent artists and website operators out there do not
have this luxury.
4. EVERYTHING INFRINGEMENT
THE ULTIMATE ICE QUEEN: BARBIE, CHILLING EFFECTS,
AND AN ARTIST NAMED MARK NAPIER
Mattel’s overzealous protection of all-things-Barbie is familiar in the intellectual
property landscape.161 Entire law review articles have been devoted to the battle over
Barbie,162 and Mattel is well known for the cease-and-desist letters it routinely sends in
order to shut down (and thus shut up) those who dare use Barbie’s name or image without
permission.
This Barbie-mania has resulted in strong backlash from groups such as ®TMark,
most famous for the Barbie/G.I. Joe voicebox switcheroo and currently sponsoring a
number of new “Barbie liberation” projects.163 These groups can afford the luxury of
After a job interview with the partner in charge of Mattel’s “Barbie litigation” matters at a California
law firm, a good friend of mine from law school commented, “Don’t they [Mattel and the attorneys
involved] have anything more important to worry about than whether or not something is technically
Barbie pink? It’s pathetic!”
162
See generally Alyson Lewis, Comment, Playing Around with Barbie: Expanding Fair Use for Cultural
Icons, 1 J. INTELL. PROP. 61 (1999), available at <http://www.kentlaw.edu/student_orgs/jip/
Vol1No1/barbie.htm>; Steven M. Cordero, Note, Cocaine-Cola, the Velvet Elvis, and Anti-Barbie:
Defending the Trademark and Publicity Rights to Cultural Icons, 8 FORDHAM INTELL. PROP. MEDIA & ENT.
L.J. 599 (1998).
163
The Barbie Liberation Organization’s first project resulted in altered Barbies that said, “Eat lead,
Cobra!” and “Dead men tell no tales.” Hacked G.I. Joe dolls said, “Let’s plan our dream wedding!” and
“Want to go shopping?” See <http://www.syntac.net/hoax/barbie.php>.
Here are a few ongoing Barbie-related ®TMark projects:
Project BRBI (from the Education fund):
‘College Barbie’ dolls, which come dressed as cheerleaders and are accompanied by a
cheerleading tape, will be modified into ‘Activist Barbie’ dolls, which will come equipped with
protest gear, including a sign upon which to put magnetic slogans; the tape will be modified so
that Barbie’s bubbly voice can be heard educating children about various social issues and
teaching them how to protest. Estimated costs for the improvement and distribution of 100
Activist Barbies is $1449.
Project BRBS (from the Biological Property fund):
Add warning labels to Barbie Dolls listing the dangers of liposuction, breast implants and plastic
surgery. Mark up the price of the dolls, noting that the cost has been increased to compensate for
161
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openly – and purposefully – ignoring Mattel’s wishes. Unfortunately, the fate of
independent web artists such as Mark Napier highlights a different story: the chilling
effects of Mattel’s behavior. “Chilling effects” refers to the deterrent effect of legal
threats, largely cease-and-desist letters, on lawful conduct and legitimate activities.164 In
other words, attorneys often send threatening letters saying that web pages contain illegal
content, usually involving copyright and trademark infringement. Many of the claims are
unfounded, but the cease-and-desist letters still scare people (and their Internet service
providers) into taking down material that is actually completely legal and protected by
the First Amendment.
This behavior is, of course, not only limited to Mattel. Rather, it is characteristic
of many large corporations who enthusiastically patrol the use of their intellectual
property rights, both offline and online. Corporate cease-and-desist letters have gone so
far as to become rather absurd. For example, Disney lawyers sent a letter demanding that
children no longer display their own renditions of Disney characters on the walls of their
private school.165 ASCAP (the American Society of Composers and Publishers) asked
not-for-profit summer camps such as the Girl Scouts of America to cease-and-desist the
the high cost of cosmetic surgery. Also note that due to the large number of surgical
complications, the doll will include an exchange policy.
Project BRB2: (from the Intellectual Property fund):
Issue a mirror copy of the ‘Barbie Super Sports’ CDROM wherein instead of shopping to
accessorize her cute sports look, Barbie wins the ability to do various other things that break the
Barbie stereotypes. Place CDs in original packaging and on store shelves.
<http://www.rtmark.com/listallprojects.html>.
164
A new Internet resource, the “Chilling Effects Clearinghouse,” aims to help the general public
understand the protections offered for online activities by the First Amendment and intellectual property
laws. The Clearinghouse is currently gathering data for a cease-and-desist letter database in order to link
“the legalese in the letters to FAQs that explain the allegations in plain English.” The website currently
provides a sample cease-and-desist letter with analysis and commentary.
<http://www.chillingeffects.org/>.
165
See Peter Johnson, Can You Quote Donald Duck?: Intellectual Property in Cyberculture, 13 YALE J.L.
& HUMAN. 451, 459 (reviewing ROSEMARY J. COOMBE, THE CULTURAL LIFE OF INTELLECTUAL
PROPERTIES: AUTHORSHIP, APPROPRIATION, AND THE LAW (1998)).
51
unauthorized “public” campfire performances of copyrighted songs such as “Ring
Around the Rosie” and “This Land is Your Land” without paying per-song royalties.166
The chilling effects of such threats are particularly important with regard to free
speech protection on the Internet, where the “‘citizen-publishers’ of cyberspace” lack the
necessary resources to fight back against well-funded corporate plaintiffs.167
One example of this is the story of Mark Napier, a painter-programmer-digital
artist who found himself in the midst of an ongoing battle with Mattel about the use of
Barbie-derived images on his website. It all began with his “Alternative Barbies” series,
which included works such as “Possessed Barbie” and “Fat and Ugly Barbie,” images
that altered Barbie in order to exemplify the “repressed real-world Barbies.”168 Mattel
sent a cease-and-desist letter to Napier’s Internet service provider (“ISP”),169 Interport,
noting that “there can be no dispute that this page unlawfully infringes Mattel’s
copyrights,” and demanding that Interport remove Napier’s page within 5 business
days.170 Mattel did not contact Mark Napier directly; he first found out about Mattel’s
demand via an email from Interport. Later, Interport forwarded a copy of the Mattel
letter to Napier in addition to its own letter, which stated [italics added for emphasis]:
Interport is not qualified to verify Mattel’s claim and has absolutely no opinion on
whether Mattel’s claim is true or not. Regardless, Interport is in a position of
166
See KEMBREW MCLEOD, OWNING CULTURE: AUTHORSHIP, OWNERSHIP, AND INTELLECTUAL PROPERTY
Law 27, 55 (2001). One ASCAP official was quoted as saying, “They buy paper, twine and glue for their
crafts – they can pay for the music, too. We will sue them if necessary.” Id. at 55.
167
James Boyle, The First Amendment and Cyberspace: The Clinton Years, 63 LAW & CONTEMP. PROBS.
337, 348 (2000).
168
Although this is not Mark Napier’s original website, many of the original, undistorted Alternative
Barbie images can be seen here: <http://www.birdhouse.org/images/napier/barbie/barblist.htm>. The
original Alternative Barbies page, now changed to the Distorted $arbie page, was the subject of Mattel’s
threatening letters: <http://users.rcn.com/napier.interport/barbie/barbie.html>. Mark Napier’s current
website, <http://www.potatoland.org/>, provides a link to the “ancient” history of his original homepage.
169
An ISP is a company which provides other companies or individuals with access to, or presence on, the
Internet. Most ISPs are also Internet access providers. Examples of ISPs include Juno, Earthlink, and
America Online.
170
<http://detritus.net/projects/barbie/censored/>.
52
potential liability; Internet Service Providers have been found liable for the
copyright infringements of their users in past court cases. Again, we make no
statement that a copyright infringement exists. However one may agree or
disagree with this existing environment, Interport is compelled to act accordingly
in a manner which limits our liability. We hope that you would appreciate our
position and, as such, voluntarily remove the Web page from the Internet until the
issue is resolved between Mattel, Inc. and yourself. Interport must have the Web
page removed as of Wednesday 22 October 1997.171
This situation epitomizes the chilling effects of threatening cease-and-desist
letters. Without knowing whether or not Mark Napier’s use of Barbie was actually
illegal, Interport was successfully bullied (by Mattel) into asking Napier to remove his
images in order to avoid potential litigation and/or liability. And so he did. Mark Napier
removed all of the images of Barbie from the site, and those that were left were distorted
to the point where they didn’t even look like a doll anymore.172 Napier notified Interport
of the changes; Interport notified Mattel. A few days later, Napier was told that the
modifications he made were not “sufficient,” that he was violating the Trademark
Dilution Act, and further changes had to be made. In essence, Mattel was now accusing
Napier of trademark infringement for the use of the word “Barbie,” regardless of the fact
that the images were completely altered and/or removed.173 Napier changed Barbie to
$arbie, found a new ISP, and moved on to other creative projects.174
The entire Napier/Mattel battle was fought without any legal basis or resolution.
The legality of the situation became irrelevant – was any copyright or trademark
infringement actually taking place? We’ll never know. As one commentator noted, “It’s
really been fought on the basis of David and Goliath. The web users are saying, ‘We
171
<http://detritus.net/projects/barbie/censored/iport1.htm>.
<http://www.abc.net.au/news/features/crime/barbie.htm>; see also <http://users.rcn.com/napier.
interport/barbie/>.
173
See the “Censored” link from <http://users.rcn.com/napier.interport/barbie/barbie.html>.
174
See <http://www.potatoland.org/>.
172
53
can’t fight, we don’t have the resources to fight these legal cases. We’re retiring, but we
haven’t given up on the fight.’”175
The fight against Mattel’s overreaching behavior – referred to as a “bogus squirrel
hunt” by one website176 – is not over; if anything, it’s found some new warriors. In a
form of electronic civil disobedience reminiscent of the DeCSS program’s fate, mirror
sites documenting the story and showcasing Mark Napier’s original “Alternative Barbies”
have popped up all over the Internet.177 Cultural recyclers Detritus.net, the same group
that helped distribute the Deconstructing Beck CD, not only put up their own Napier
mirror site but also encouraged others to do so, providing relevant background
information about the exchange as well as the technical know-how to help “spread the
distorted Barbie meme.”178
A mirror site agreed:
While Napier has decided not to fight the Mattel request as an individual, there’s
a much more effective technique we can use to drive Mattel lawyers crazy: turn
the Distorted Barbie site into a free-travelling meme. Place copies of the site all
over the net, then sit back and wait for Mattel to find them. When the company
asks us to cease and desist, we will. But by that time, dozens more copies of the
site will have sprung up elsewhere to take its place. The lawyers’ bogus squirrel
175
<http://www.abc.net.au/news/features/crime/barbie.htm>.
<http://ezone.org/xian/barbie/meme.html>.
177
See, e.g., <http://www.distrito.com/usuarios/photog/barbie/dbmain.htm>;
<http://www.birdhouse.org/images/napier/barbie/dbmain.htm>; <http://detritus.net/projects/barbie/>.
178
<http://detritus.net/projects/>. Dictionary.com defines a meme as, “A unit of cultural information, such
as a cultural practice or idea, that is transmitted verbally or by repeated action from one mind to another.”
As its online FAQ notes, Detritus states its goals as:
[Encouraging] people to pick up pieces of our popular culture and reuse them….Culture, at least
the most interesting (to us) incarnations of it, is continually re-made out of older culture.
Inspiration, influence, imitation, it all melts together to make something new, which in turns gets
re-used again. Two very important recent developments make this even more important than it’s
been for the last few millennia: First, modern technology allows easy reproduction of cultural
artifacts, making it all the more necessary that social attitudes adjust to match. And second, the
rise of capitalism and corporate power has created an environment where intellectual property law
constricts the healthy growth of culture and exercise of individual creativity. This site is a rallying
point against this negative force.
See <http://detritus.net/faqomatic/cache/11.html>.
176
54
hunt will turn into an endless, crazy-making pursuit of a target that multiplies
exponentially by digital mitosis. Eventually, they’ll give up and realize that the
Internet is not a very good place to try and squelch free expression.179
V. CONCLUSION
Most online copyright and trademark disputes fizzle out quickly, with website
owners taking down the potentially infringing material and corporate attorneys smugly
chalking up another victory for their clients. Some might argue that the “bullying back”
victories of groups such as Adbusters, Negativland, and ®TMark are few and far between,
occasional heroic (and folkloric) battles won by the Davids of the online world. Others
might view this sort of collective action by “virtual communities”180 as the only force that
is effectively pushing back against the chilling effects of those who seek overbroad
intellectual property protection.
If the “problems” with current intellectual property doctrines – and their
enforcement – are defined as the arbitrariness of courts in handling intellectual property
issues, the lack of adequate protection for fair use and parody, and the chilling effects of
litigation threats via cease-and-desist letters, there are a variety of possible solutions.
There is often a push in legal academic writing for “THE solution.” I strongly believe
that any attempt to provide such a solution would be not only pretentious but also rather
arbitrary. Instead, I offer this paper as a necessary part of any solution: increased
awareness of the problem and an exploration of what is currently being done about it.
179
<http://ezone.org/xian/barbie/meme.html>.
Rosemary J. Coombe & Andrew Herman, Trademarks, Property, and Propriety: The Moral Economy
of Consumer Politics and Corporate Accountability on the World Wide Web, 50 DEPAUL L. REV. 597, 614
(2000).
180
55
Perhaps a broader solution is best framed as a bricolage, a collage constructed
from the various materials at hand. Such a solution would include the work of the
Chilling Effects Clearinghouse, which aims to inform recipients of cease-and-desist
letters about their legal rights and protections. It would include the work of copyrightaware musicians such as Negativland, who provide detailed information about
intellectual property laws and resources on their website and speak regularly about these
topics. It would include all the online activist individuals and groups, such as
Detritus.net and those who put up DeCSS and Napier’s Distorted Barbies mirror
websites, who continue to embrace the battles of the “little guys” via electronic civil
disobedience. It would include scholars and law professors such as James Boyle, who
has proposed that courts and scholars should look more critically at the consistency of
intellectual property rules with the First Amendment in the future, and Jessica Litman,
who has suggested that copyright laws should be “sufficiently intuitive to appeal to
school children.”181 It would include continued pranks, spoofs, civil disobedience, and
culture jamming by Adbusters, ®TMark, and the Billboard Liberation Front.
It would also include hoping that the present and future intellectual property
lawyers reading this – yes, you, the ones who represent Disney and Mattel and
Blockbuster and Microsoft, the ones that I and my classmates will be joining shortly –
are a bit more aware of these challenges and battles, a bit more appreciative of the
importance of parody, artistic reworking, and social commentary in shaping a diverse and
creative culture, and a bit more concerned with balancing zealous client advocacy with
respect for creativity and free speech.
181
James Boyle, The First Amendment and Cyberspace: The Clinton Years, 63 LAW & CONTEMP. PROBS.
337, 350 (2000); Jessica Litman, Copyright in the Twenty-First Century: The Exclusive Right to Read, 13
CARDOZO ARTS & ENT. L.J. 29, 53 (1994).
56
[cc]
This paper is counter-copyrighted, which means that readers may freely use and build
upon it, adding whatever links, modifications and commentary they wish directly to the
original document. See http://cyber.law.harvard.edu/cc/cc.html for details about the
counter-copyright campaign.
57