April 12, 2001
5:00 - 7:00 p.m.
MIT Media Lab
20 Ames Street
Digital environments enable practices that promise to transform
corporate/consumer relations. These practices undermine the
traditional power of companies to control their images and manage
their imagery. At the same time these new practices create conditions
permitting consumers to challenge the commodity fetishism on
which the corporate persona as an asset relies. The World Wide
Web gives members of the digitally connected public new capacities
to evade their positions as mere consumers of corporate imagery,
providing technological means and social and cultural conditions
for consumers to transform the commodity signs of mass culture
into popular culture and to create a popular legal culture in
the process. As the struggles to control the meaning of corporate
trademarks indicates, a system of proprietary control, dominant
under modern conditions of mass marketing, is being transformed
into something more dynamic and ethically complicated, a digital
public sphere in which consumers are not passive and corporations
are forced to be newly accountable.
is the author of The Cultural Life of Intellectual Properties:
Authorship, Appropriation and the Law (Duke University Press,
1998) and numerous articles in legal theory, cultural anthropology
and cultural studies. She is working on a book about the globalization
of intellectual property issues. She was appointed in 2001 to
the Canada Research Chair in Law, Communication and Cultural
Studies at York University where she is a Professor in the Faculty
of Arts. Coombe earned a combined doctorate in law and anthropology
from Stanford University in 1992.
Andrew Herman is the author of The Better Angels
of Capitalism: Rhetoric, Narrative and Moral Identity Among
Men of the American Upper Class (Westview, 1998) and co-editor
of The World Wide Web and Contemporary Cultural Theory: Magic,
Metaphor and Power (Routledge, 2000). A professor at Drake
University, Herman received his Ph.D. from Boston College.
COOMBE and ANDREW HERMAN
said the traditional system of trademark and proprietary control
governed by unidirectional rules of advertising and mass marketing
is being transformed in digital space into a more dynamic, discursive
process. This transformation is made clear in battles over online
uses of intellectual property and trademarks and struggles over
Internet domain names.
from their paper, "Defending Toy Dolls and Maneuvering
Toy Soldiers: Trademarks, Consumer Politics and Corporate Accountability
on the World Wide Web," Coombe and Herman analyzed these
changing dynamics, citing recent examples of the cycle of corporate
action and fan response.
maker Mattel Corporation was called one of the most vociferous
and energetic of corporate censors in cyberspace for its attempts
to shut down Barbie collectors' websites and to usurp the collector
community by offering officially licensed dolls for sale. In
another instance, adult entertainer Barbie
Doll Benson, who has used the Barbie Doll stage name for
16 years, received Mattel's complaints only after she produced
site hit with Mattel's legal wrath was The
Distorted Barbie, dedicated to the Barbie icon's semiotics
and deconstruction. Artist Mark Napier altered the famous doll's
face and Mattel sent a cease-and-desist letter to Napier's Internet
service provider (ISP) who put pressure on the artist to strip
the altered images from his site. A website called Trademarks.org
was mentioned as a warehouse of information in reaction to the
Barbie trademark wars.
Herman cited Michael Strangelove who argues that corporate capacity
to maintain monopolies over the flow of symbols is severely
compromised in digital contexts. Mattel is simply incapable
of suppressing every redefined image of Barbie in cyberspace,
they said, and Strangelove's thesis is borne out by the dozens
of Barbie images, satires, parodies and commentaries that are
now available on the web.
out that fan subcultures put great value on autonomous creativity,
Coombe and Andrew discussed the digital phenomenon of "cyberbullying."
A recent example involved action taken by Warner Brothers against
two 15 year-old girls for registering homemade Harry Potter
fan sites with URLs that contained the Harry
Potter name. When the controversy spawned a website devoted
to managing and coordinating the response against Warner Brothers,
the company retreated and ended up waiving its normal licensing
controversies over trademarks and domain names have created
new web communities devoted to recording these activities. Calling
these communities "counterpublics that archive corporate
cultural power tactics," Coombe and Herman pointed to several
websites that track domain name disputes and their resolutions
Domain Names directory, and Dan
Tobias' Political and Controversial website.
JENKINS, director of Comparative
Media Studies, MIT, responded by comparing the encounters
taking place on the Internet to those depicted in the futuristic
television show Max Headroom from the mid 1980s. In that show,
corporations used technological advances to gain more and more
control of consumers, while at the same time armies of resistance
transformed the new technology into tools for challenging corporate
power, a common theme in cyberpunk fiction.
We are seeing
this cycle of cooptation and appropriation today with corporate
marketing efforts on the web, the grassroots creation of websites
that criticize, monitor and parody corporations, and the resultant
battles over intellectual property as described by Coombe and
that emerges from this collision of cultural forces is that
the new technology enables grassroots archiving, appropriation,
transformation, remaking and recirculation of corporate symbols
and media icons. The full range of digital tools from PhotoShop
to camcorders give people the power to make media, and the web
has given people channels of distribution that grassroots movements
did not have in the past.
course of tight corporate control of intellectual property and
grassroots share-ware models of cultural production will define
how many rights we have as consumers, and what rights we will
have in the future to challenge the dominant culture. The Napster
case is just foreplay for a series of legal battles we will
see unfold over the next decade.
interesting paradox that the whole system works to ensure an
opposition between consumer and capital interests. The sites
that are most vulnerable to being shut down are fan sites that
endorse a product and encourage its consumption, while parody
sites that are most clearly protected as political speech are
critical of the product.
is that the fans receive cease-and-desist orders and that antagonizes
them and destroys so-called goodwill. As a result, the fans
become more and more critical of the company and their content
becomes more and more protected as political speech. It's a
machine that encourages antagonism and the breakdown of goodwill
and encourages critical thinking about corporate control.
this occurs at the moment when companies are using relationship
and viral marketing models and to attract and retain consumers.
More and more trademarks are sold on t-shirts. High school kids
are told 'wear this symbol on your backpack, put it on your
locker, but don't put it on your website.' That line is a very
arbitrary one for the consumer.
thinking about bonding with consumers are using legal tactics
that create an antagonistic relationship, and it reaches the
point where it is a trademark war rather than the collaboration
and relationship marketing that was envisioned by some for the
new digital age.
It is like
Max Headroom, and we are seeing some vivid examples of the kind
of antagonism that emerges at this moment of media change and
GUSTERSON, Professor of Anthropology and
Science, Technology and Society, MIT: I am struck by the
coincidence in time of these copyright debates and what's happening
with genetic information. For example, there is a surgeon who
took out a patent on a patient's genes, and Monsanto is trying
to take out a patent on a form of rice that has been used for
centuries. Could you talk about the deeper cultural logic that
might link what's happening in biology and what's happening
online? My sense from watching these biology cases is that the
companies are winning much more easily than you have been describing
I think there is a deeper cultural logic based of a peculiar
western understanding of authorship as a singular act. Trademark
law does not account for the fact that the value of signifiers
comes from the way they are shared in a cultural context. That
is, the value comes from the ways they are shared in social
fields - linguistic value and meaning is created in social contexts.
In law, any meaning of the sign is attributed to the author
and any meaning imbued to the symbol is seen as the result of
the actions of the author.
narrow understanding of authorship with the fact that a corporation
is considered an individual in the law and anything that is
public domain can be turned into an item of propriety control.
In genetics and the biotech area, these companies are taking
their own activities of isolating and purifying something and
gaining ownership to methods and techniques that have been know
for years by other peoples. The claims of biopiracy have been
to some extent overstated - I have learned you can't believe
everything that every nongovernmental organization tells you
- but there is something going on there, and the NGOs are catching
peoples are now making the case that ecosystems are created
by authorial communities and are making their own proprietary
claims on biodiversity as authorial creations by collective
authors. Digital technology has played two important roles in
this. First of all, because of the Internet, it is much easier
for Third and Fourth and Fifth World peoples to find out when
corporations are exploiting their knowledge, and, secondly,
it is easier for peoples to put their own collective knowledge
into digital form, display it and lay claim to it. This involves
more and more objectification of culture, but that's the terrain
URICCHIO, Professor of Comparative Media Studies,
MIT: It is clear that activist have a quick learning
curve, but what's the debate in the legal community? Just go
out and zap'em, or is it more nuanced? Are lawyers refining
There are lawyers on both sides. Not all the lawyers are protecting
corporations. But, most of the legal debates are about what's
the best way of protecting the corporation. At first, in-house
corporate counsel was protecting the corporation's interests
without thinking about the bigger public relations picture.
changing: people are increasingly looking for law firms that
have relationships with PR firms, and there is an emerging group
of lawyers that absolutely loves defending these cases. The
ACLU has become more involved.
HAPGOOD: If we look down the road, the cost of prosecuting
these cases around the globe will go up and up and up. Are we
talking about anything real, or is this all going to be squashed?
Imagine trying to write cease-and-desist letters to server farms
in India, where they'll be ignored. There's a real issue here
of cost, right?
Essentially, then, this is all over. It's got about five more
years. No one is going to be able to control these trademarks
once the jurisdictional environment swings against them.
Well, we are seeing the emergence of supranational arbitration
systems that allow corporate domain holders to bypass court
systems in individual countries. The actual governance of domain
names is being taken out of local, regional and national hands
and being administered at an international level.
SILBEY, visiting scholar, Anthropology: Can
you say more about these new forms of governance that are operating?
In terms of regulation, there are proper ways of controlling the
Internet, and that's what ICANN
is increasingly about: maintaining strict control over domain
names and dispensing them carefully is a way to designate space
on the Internet. Governance in its broadest sense, however, is
not just regulation and the organization of digital information,
but includes other forms of conduct.
there are long discussions on these websites about the nature
of civil disobedience and what it will look like in this new
environment. Where are the digital spaces for protest activities?
When a store is acting bad toward employees, or breaking environmental
laws, what do we do? We picket and protest. But, should we close
down a website just as we would picket a store? Why should a
virtual site get more protection than bricks and mortar? There
are debates about governance, and how to be a good digital citizen.
environment does create greater capacities to comment on corporate
conduct. The fiction of goodwill has been a fiction for quite
a long time, and digital media allow activists, citizens, and
employees to reveal the lie.
What do you think about MIT putting all of its courses on the
It affects the property and propriety of many people in this
room. How many people here actually teach courses on the web?
Well, I do too. There are debates as to who owns the content
of these courses? It does call into question the status of the
intellectual workers at the university as laborers.
Legally, employees never own the right to the intellectual property
they create while employed. So, what they create does belong
to their employer.
THORBURN, Professor of Literature, MIT: Doesn't
that make an assumption that professors are typical employees?
It is not at all obvious that professors are employees of the
university. Many of us fought battles against university administrations
establishing that it is a different kind of community. There
have been some cases where professors could not sue a university
because they were considered the governance of the university.
I may have made a cultural assumption. They are all public institutions
VOLKMER, visiting scholar, CMS: I am teaching
online for the New School in New York, and I have those concerns.
What happens to my courseware? What happens to the content of
my courses? But, there are other issues as well. During a web
search, I found an article of mine that was published in Greece
without me knowing it. That's one issue.
am commuting to Europe a lot and in America this discussion
is all about copyright and Napster. In Europe, it's about free
speech, and it's about politically extreme content on the web.
The discussion in Europe is more about content providers and
their liability and responsibility on the web. I think that
in Europe the media including the Internet is seen more as a
cultural product or space, and not so much as a commercial space
as it is in this country.
European Union is trying to create an equivalent to American-like
copyright laws. This is the first step to synchronize global
content flow, the trade of information services in the web.
And I have a feeling this synchronization of copyright law gives
protection to the commercial side in industrialized nations
without regard for the cultural side.
Yes, intellectual property questions now have become questions
of trade rather than culture and communications. That means creating
global and legal friction-free space where capital can be exchanged.
The discourse is all about free trade, but in fact the Third World
is supposed to trade its goods as goods while the First World
protects its major products as monopolies. How that creates a
level playing field is not at all clear. Part of the move to treat
biological diversity as intellectual property is a response to
make big claims about American cultural hegemony. One can ask,
for example, why the American copyright industry was allowed
almost single-handedly to transform intellectual property into
a matter of trade with the Trips Agreement? But it might be
a better question to ask why America exported its strong intellectual
property protections, but not the rich exemptions that Americans
enjoy such as fair use defense of copyrighted materials.
As a result,
people now realize what political stakes are involved in the
expansion of intellectual property rights. By creating international
laws and agreements, you can avoid all questions of freedom
of speech and expression. The First Amendment of the U.S. Constitution
is not exported along with the laws. The Constitution, after
all, is a local ordinance.
EUBANKS, R.P.I.: Once you get past the first scary
lawyer letter, how effective have these lawsuits really been
in protecting corporate rights? The primary cease-and-desist
letter costs 34 cents and shuts some people down. But when these
cases get to trial, the companies look bad.
You may be underestimating the chilling effect these letters
have, and the tactics are now shifting. In the beginning, the
letters would go to website administrators and they'd shut down.
As people have begun to share these letters, the so-called outlaw
sites have become more emboldened. Because on the web you can
post the cease-and-desist letter and you can engage in a shaming
of the corporation, fewer administrators are backing down in
the face of a cease-and-desist letter alone. Now companies are
sending cease-and-desist letters to the Internet service provider
(ISP) and those people tend to be more conservative when it
comes to legal threats. Maybe over time that level of operator
will become more and more emboldened as well.
doesn't look as grim as it did two years ago. Still, we do come
across more and more broken links and "this page cannot
be found," notices as we do our research.
Toy Dolls and Maneuvering Toy Soldiers: Trademarks, Consumer
Politics, and Corporate Accountability on the World Wide Web
by Rosemary J. Coombe and Andrew Herman
[This paper was delivered at the MIT Communications
Forum Trademark Wars -- Corporations and Publics on the Web
on April 12, 2001]