[Please
note that the links to images in the following paper do not
lead to live Web sites. Several of the sites referred to no
longer exist. Also, you may have to adjust your browser in order
to best view the images.]
Complex
wars of position are being waged on the World Wide Web as corporations
encounter a new politics of publicity. A strange politics this,
fought over toy dolls and conducted with toy soldiers, it uses
those strange fetishes of mass consumption - trademarks - to
establish and to subvert corporate cultural power. Trademarks
are intangible assets of immense value that magically bind consumers'
devotion - brand loyalty no less - with corporate personality
through the force and fiction of the concept of goodwill.
Digital
environments, however, enable practices that promise to transform
the nature of corporate/consumer relations - undermining the
traditional capacities of companies to control their images
and manage their imagery - while creating conditions for consumers
(and we refer here to all those who use this imagery from artists
through customers) to challenge the very forms of commodity
fetishism that underlie the value of the corporate persona.
These conditions, in turn, have been met with the specter of
new forms of governmentality - threatening to colonize digital
environments with regulatory regimes that will contain its more
democratic and dialogic potential. These governmentalities,
in turn, become arenas of controversy and conversation - inviting
dances of mimicry and alterity in digital public spheres as
exercises of control over intellectual properties in cyberspace
gives rise to new politics of publicity in digital public spheres.
Popular
and sub-cultural practices, we have shown, are often in dialogical
relationship with legal power and its popular interpretation.
In The Cultural Life of Intellectual Properties, Coombe
considered mass media signifiers and popular cultural readings
of corporately controlled commodity-signs - that circulate as
part of our public culture but are also private properties,
protected by laws of intellectual property. Intellectual property
laws give exclusive rights to owners to control the circulation
of texts and to enjoin their uses by others, to levy royalties
and to threaten lawsuits when these symbols are reproduced in
subaltern cultural activities. These laws confer on corporations
an enormous amount of cultural power while they simultaneously
shape tactics of subaltern appropriation, recoding, and detournement.
It is the
function of trademark law to discursively construct and institutionally
enforce particular notions of corporate identity as a property
right. As Steve Jones insightfully points out, this function
is grounded in the very etymological roots of the word "property"
- derived from the Latin proprius, meaning "one's
own," the word property was a doublet of propriety in More's
Utopia. In current usage the former is used to make reference
to ownership, the latter refers to a standard of behavior."
Intellectual property, he suggests, intertwines the two, harkening
back to the Latin proprius and its derivative proprietas, meaning
proper signification with words.
Intellectual
property laws structure a field of semiotic possession - control
over a sign - and thereby shape forms of symbolic practice.
They create proprietary rights in a cultural commodity/sign
- the trademark - and legal rights and obligations to attempt
to control its interpretation. Proper signifying activity that
connects the product, the brand name, the corporate source and
positive feelings in the mind of the consumer - that closed
circuit of meaning and affect the law understands as goodwill
- forms the basis for the trademark holder's legal entitlement
to fully exploit and appropriate the exchange value of the commodity/sign
in the market place. The corporate persona is strengthened through
strategic possessive activities designed to constrain surplus
meaning and prevent the dilution of symbolic value. Unauthorized
appropriations of corporate trademarks and alternative forms
of signification that disrupt this closed circuit must be monitored
and, ideally, strictly prohibited. The law functions as a form
of governmentality by shaping the appropriate use of commodity/signs
in mass mediated commercial culture. Its capacities to do this
are both provoked and challenged in digital contexts.
In The
World Wide Web and Contemporary Cultural Theory, Herman
and Sloop argue that processes of corporate branding of and
in cyberspace also territorialize the Web as a striated space
of corporate sovereignty and consumer desire - a highly regulated
and disciplined space for the performance of both corporate
and consumer personae. The Web provides technological means
and social and cultural conditions for members of the digital
public to take the commodity signs of mass culture and transform
these into popular culture. As they do so, they also encounter
the exercise of corporate legal power, and in collective responses
to these exercises of power, a popular legal culture has emerged.
By mass
culture we mean mass produced texts, images, and sounds - circulated
to a mass of consumers by centrally controlled media industries.
This culture is unidirectional, or in Bahktinian terms, monologic
- it speaks from a singular place with a singular voice - and
it doesn't let you talk back. If you do, your voice is unlikely
to be widely heard. You might strategically alter billboards
[IMAGE
1] or create art that uses and transforms trademarked and
copyrighted form. You might work more surreptitiously, changing
the voice boxes in fashion and action toy dolls to challenge
gender stereotypes as the Barbie Liberation Front did [IMAGE
2]. Interventions and interruptions of mass culture, however,
are difficult to make widely visible or widely audible; people
don't have the capacity to communicate with the same speed or
efficiency as corporate speech when they attempt to talk back.
Widespread
access to digital technology, at least in the overdeveloped
world, however, has fundamentally transformed the dynamics of
this field of communicative power. The Web provides unprecedented
opportunities for dynamic dialogues between corporate producers
and those who consume their products and imagery. A system of
proprietary control, hegemonic under modern conditions of mass
marketing is being transformed into a more dynamic ethics of
property and propriety in digital public spheres. This becomes
clear in battles over trademarks and struggles over domain names
- the very phrase evoking the symbolic processes by which property
and propriety converge in the construction of the digital corporate
persona. It is through the proper and exclusive naming of a
specific proprietary space that the site is becomes the symbolic
territory of the corporation - the nomadic, fluid, and potentially
"smooth" space of cyberspace is "striated,"
in Deleuze and Guattari's terms, and thus made "friction-free"
for capital. Such striated spaces are continually at risk in
digital environments - of being returned to "smooth"
space through the agencies of rhizomatic movements that challenge
the propriety of assuming possession of the proper name.
Critics
recognized early that the Web's capacities to serve as a communicative
medium Playboy magazine's 1981 Playmate of the Year, was sued
in 1998 for trademark infringement was challenged by trademark
disputes. Terri Welles [IMAGE
3] - because she referred to herself as a Playmate on the
website where she sold pictures of herself and advertised her
services as a model. Welles, a single mother, used the site
as her major source of income. The company sought damages and
an order for her to remove all references to Playboy and the
term Playmate; she was accused of hijacking Playboy's customers.
Despite the fact that Ms. Welles was accurately describing herself
and her credentials (and not confusing anyone by so doing),
the magazine would not permit her to use their marks on the
Internet. Playboy's request for a preliminary injunction was
denied on the basis that she was simply describing herself,
and the denial was upheld in the Ninth Circuit Court of Appeals.
The implications
for digital culture were not lost on the digerati. As one of
Salon's editors noted, simply by describing the facts of the
case, he was required to use the word "playboy." To
alert websurfers to his article he would need to use Playboy
and Playmate in the metatags for the page. If Playboy were to
have their way no such discussion of their activities could
take place on the Web.
The real
conflict here - and one that no single court decision can resolve
- is between competing visions of the Web. If you think the
Web is simply a "marketplace," a big mall where companies
compete for "brand identity" and "mindshare"
then Playboy's trademark protection makes sense. While many
large corporations have sunk piles of money into making this
vision of the Web a reality, vast numbers of individual people
are busy pursuing a different vision - one in which the Web
is a giant communications network in which we find one another
based on a shared interest, be it bottle-top collecting, Proust,
or Playboy bunnies. . . if the law ends up treating the Web
as one big business directory, then we shouldn't be surprised
if the medium ends up becoming as scintillating as a volume
of the Yellow Pages.
The threat
to bottle-top collecting was soon realized. A community of senior
citizens involved in trading vintage Coca Cola wares were donated
a website called Vintagecocacola.com to display their collections
by a web design company run by Randy Martin. No merchandise
was ever sold on this site and it contained a clear disclaimer
that "Coca Cola, Coke, the distinctive contour bottle and
all Coca-Cola images portrayed within this site are trademarks
of the Coca-Cola Co. All logos and references are used for identification
purposes only and remain property of their respective owners."
The company
brought suit nonetheless and demanded that all images of Coke
products be removed from the site. Senior citizens stopped sending
Martin pictures of their memorabilia. The site is no longer
a forum for people to find and communicate with new friends
who share interests. All digital images of Coca Cola goods must
come from the official source
[IMAGE 4] , despite their social role in contemporary life
worlds. Martin took down all logos, trademarks, and imagery.
He also posted the company's cease and desist letter, temporarily
transforming the site into a venue to protest corporate overreaching
on the Internet [IMAGE
5]. He invited consumer commentary, and educated the websurfing
public about their rights when threatened by trademark holders.
Vintage memorabilia junkies no longer use the Internet to share
their knowledge, their collections, and their fondness for Coca-Cola
packaging. Those who sought these wares in the spring of 2000,
instead found themselves in a sea of critical letters discussing
the multinational corporation's labor relations, its pricing
practices, and marketing strategies. In attempting to police
and maintain a closed circuit of imagery and connotation, the
company effectively opened it up to a wider field of critical
consumer opinion (for reasons we have not been able to ascertain,
the site is now password protected).
The use
of intellectual property to effect forms of online censorship
is also evident in the numerous cease and desist letters sent
by lawyers to fans holding tribute websites. In many cases these
were noncommercial sites that couldn't possibly be confused
with the official venues. Many of these sites simply left the
web, removed any proprietary content or slyly renamed themselves
- the "Unofficial" Elvis home page [IMAGE
6]. As Henry Jenkins and John Fiske have shown, fans actively
produce cultural meanings and create popular culture through
creative appropriations and recontextualizations of mass cultural
commodities. As Fiske argues, these practices create a "shadow"
symbolic economy through which fans stake alternative claims
to property and propriety in everything from particular celebrities
to television shows. Intellectual property holders are naturally
suspicious of this shadow economy [IMAGE
7 and IMAGE
8]. They seek either to reincorporate fan activity within
the symbolic economy of mass culture or they attempt to eliminate
it altogether, fearing the dilution of the symbolic value of
their marks through the corruption of their proprietary meanings.
Fan's passions for the commodity must be strictly territorialized
- channeled back into official web sites to promote the further
sale of trademarked goods, build brand identity, and nourish
the corporate persona.
The emergence
of the Web has intensified the conflict between fans and the
legal owners of mass cultural properties because the Web has
enabled fans to create more dispersed communities of popular
cultural commentary. For instance, a phenomenal profusion of
unofficial X-Files Web sites (over 900 of them in 1995
alone) where fans produced and circulated an elaborate alternative
discourse attracted the Fox Network's legal wrath. Corporate
property in mass media trademarks is in fact only legally protected
where there is evidence that the corporation is policing the
propriety of the practices in which these are consumed.
Fan subcultures
put great value on autonomous creativity. Not surprisingly,
many fan communities resent and resist corporate attempts to
incorporate or quash their Web activities. Just as corporations
have pursued Web sites for "cybersquatting," fan communities
have become irate about what they call "cyberbullying."
A recent example involves action taken by Warner Brothers against
a 15-year-old, Claire Field, for registering homemade Harry
Potter fan sites with URLs that contained the character's name
[IMAGE
9]. The Potter sites were wholesome labors of love by adoring
fans [IMAGE
10]. Indeed, Field took great pains to link her site back
to the official Web sites. The action against the teenager and
her family brought an almost instantaneous response from the
Harry Potter fan community. One group of British activists,
devoted to fighting corporate censorship on the Web created
another site to manage and coordinate the response to Warner
Brothers [IMAGE
11]. Site administrators accuse the company of ignorance
about the basis of their rights "corporate legal departments
don't really have a clue about the real world and some corporations
just don't understand the concept of 'goodwill.'"
The struggle
by fan communities on the Web to resist the stratagems of media
corporations recently took an ironic twist [IMAGE
12]. Fandom.com was founded in 1999 with the purpose of
providing a cooperative umbrella for independent fan domains
to protect them against corporate intellectual property assaults
- a shield against cyberbullying, so to speak. Although Fandom.com's
slogan is "for the fans, by the fans," it is actually
an enterprise financed by several prominent entertainment venture
capital companies. Fandom.com does appear to have provided some
legal protection to webmasters who affiliated themselves with
the venture, but its greater accomplishment has been to aggressively
incorporate and co-opt formerly independent fan sites under
a singular corporate brand name. It controls the style of fan
discourse and homogenizes its content as a means of maintaining
brand identity. Numerous fan domains under this new corporate
umbrella have found that postings that don't accord with the
desired corporate persona are simply deleted from their message
boards.
Like all
media corporations seeking to establish and maintain a distinctive
brand image, Fandom.com was soon invoking its own intellectual
property rights. Last October, Carol Burrell, the administrator
of a website called Fandom.tv, was hit with a cease and desist
letter from Fandom.com's lawyers. They claimed that the very
word "fandom" in digital contexts was their own trademark.
This action set off a firestorm of protest within the Web fan
community, prompting a boycott of Fandom.com and the establishment
of yet another web site [IMAGE
13] that once declared "Fandom is for Fans. Not for
Sale!!!" Fans insist that the word "fandom" -
used to describe fan community subcultures since the 1930s -
was the common property of the fan community, not a term susceptible
to private ownership. Burell ironically claims her own trademark
rights in a pre-emptive strike against any further corporate
commodification [IMAGE
14]. She claims the trademarks here as their guardian to
safeguard the terms propriety for a moral community of fans.
In doing so, she points to the recognition by fans that even
a site designed to protect fan activity could quickly become
a cyberbully in its own right and that the imperatives of protecting
brand identity soon take precedence once a corporate persona
emerges on the Web.
Conflicts
over the corporate persona as intellectual property are now
commonplace on the Web and there are now a number of sites linked
together in webrings that document instances of intellectual
property law being used as a form of censorship. Recording these
activities has created new communities - counterpublics that
archive corporate cultural power tactics. Cease and desist letters
were routinely sent by lawyers monitoring trademarks in the
past, but the Web provides an unprecedented opportunity to publicly
document this behavior while assessing its range, scope, and
intensity. Digital public domain defenders now routinely monitor
the Internet for instances of corporate censorship just as corporations
monitor it for unauthorized appropriations of their marks.
The Mattel
Corporation is known as one of the most vociferous and energetic
of corporate censors in cyberspace. A recent Google search for
Mattel Lawsuits and Barbie turned up over 1250 items, including
sexual appropriations, critical commentary, and creative cultural
reworkings of the cultural icon. For instance, Barbie Doll Benson,
former Miss Nude Canada, used the Barbie Doll stage name for
16 years; only when she produced a web page did Mattel complain.
Mattel's opposition here seems obvious enough (the children
interested in their dolls might stumble across a semi-pornographic
site) but their delay in taking action has given her strong
enough grounds to continue to use her stage name. Barbie doll
collectors, on the other hand, hold dozens of websites as well
as online Barbie auctions
[IMAGE 15]. Mattel has tried to shut dozens of these collector's
sites down and to usurp the collector community by offering
officially licensed 'nostalgia dolls' for sale. According to
the president of the largest collector's organization, "Barbie
doll collecting is in danger of becoming what Mattel wants it
to be rather than what you, the collector, choose to make it."
Mattel's legal rights to try to use its trademark ownership
to prevent collector's activities are actually rather limited
(to the extent that the use of the Barbie name in these instances
is either referential or laudatory). Legally, Mattel should
be concerned if the Barbie name were in danger of becoming a
generic term for fashion dolls. To the extent that the dolls
traded on the Web are, in fact, Mattel products, there is no
trademark rationale for the corporation's attempts to prevent
these online uses of the Barbie name. Nor is it clear how such
activities 'dilute' the value of the famous mark.
The company's
attempts to usurp collector's activities by producing "collectors'
editions" provoked a new wave of outrage. One quarterly
fanzine that critically reviewed the quality of the dolls Mattel
produced (and featured the occasional satire upon the collectors'
shared addiction to the ten inch icon) was confronted with a
federal copyright and trademark infringement lawsuit, prompting
a month long boycott. Facing this storm of protest from faithful
customers (many of whom buy 50 Barbies a year), Mattel CEO Jill
Barad vowed not to give an inch. "What I do in my job,
first and foremost," Barad said, "is protect Barbie."
In 1997,
protecting Barbie was an especially aggressive activity with
a barrage of lawsuits launched against clubs, publications,
and websites. One site hit with Mattel's legal wrath was dedicated
to the Barbie icon's semiotics and deconstruction
[IMAGE 16]. Mark Napier, an innovative Web artist, altered
the famous doll's face to explore Barbie's role as an icon of
American life [IMAGE
17].
Barbie says
a lot about the world. I can't think of any other icon that
is more widely accepted as an image of femininity. Barbie is
a defining force for both women and men, for the culture in
general. We have chosen this image, voted for it with our dollars,
promoted it unconsciously or consciously ... But I think it's
about time this icon diversified a little. What about all those
aspects of our society that are not represented by Barbie? Let's
open up the closet doors and let out the repressed real-world
Barbies; Barbie's extended family of disowned and inbred rejects;
politically correct Barbies that celebrate the ignored and disenfranchised."
Mattel sent
a cease-and-desist letter to his Internet service provider (ISP)
who put pressure on the artist to strip the site of the images.
Mattel still considered his use of the Barbie name to be a dilution
of their trademark
[IMAGE 18]. Napier's site was featured in Enterzone, an
online arts journal that received a similar letter. According
to Enterzone's editor: "What's being silenced is any reflection,
any meta-conversation about Barbie," He pointed to an interactive
section of Napier's site that allowed viewers to submit their
own stories about what Barbie meant to them as they were growing
up. "Dolly Parton Barbie," "X-Files Barbie"
and most of Napier's morphed Barbies are still available to
us thanks to the zine's archives [IMAGE
19 and IMAGE
20].
Controversy
over Mattel's action quickly spread. Before Napier took down
his Barbies others duplicated them to create "The Distorted
Barbie Meme." A meme (also known as a free-floating meme)
is a Web site that can be completely copied and reduplicated
at any other Web location. The original Distorted Barbie Web
site was reproduced at www.detritus.net - a site to house endangered
art works. The accompanying "Meme Manifesto" made
it clear that the intention was to subvert Mattel's legal action
by encouraging the proliferation of these images [IMAGE
21]. As Michael Strangelove argues, unlike the unidirectional
control over its commodified signifiers and images that Mattel
was accustomed to maintaining in mass culture, corporate capacity
to maintain monopolies over the flow of symbols or control the
meanings of their signs is severely compromised in digital contexts.
Mattel is simply "incapable of suppressing every redefined
image of Barbie in cyberspace" - users of the Web can "reproduce
disputed and illegal material faster than the legal system can
respond." Strangelove's thesis is borne out by the dozens
of Barbie images, satires, parodies and commentaries that are
now available on the web. These sites also link readers quickly
to more and more domain disputes involving Mattel, and, in critical
and satirical response, more and more alternative "Barbies."
[IMAGE
22]. Trademarks.org/Barbie, for example, takes the visitor
to several instances of Mattel's overbearing conduct [IMAGE
23]. Moreover, links to gay Barbie appreciation sites, recollections
of Barbie's role in lesbian self-realization stories, as well
as a book featuring both "Safe-Sex Barbie," and -
in honor of her 40th birthday - "Hot Flash Barbie"
(accessorized with tiny estrogen supplements) are all only clicks
of the mouse away.
The Web
provides a powerful medium for more serious criticism; unhappy
customers and former employees of particular corporations have
created dozens of interlinked "suck" sites, such as
those with homepages titled "IntelSucks," "Anti-Intel,"
"Big Brother Inside," [IMAGE
24] "FaceIntel (Former and Current Employees of Intel),"
[IMAGE
25] "Boycott Intel," and "Intel Secrets."
These sites document the company's alleged anti-competitive
practices, intimidation of competitors, inflated prices, the
technical inferiority of its products, its invasion of consumer
privacy, exploitation of workers, discrimination on the basis
of work related disabilities, labor unrest due to arbitrary
shift changes and threats to job security, fraudulent benefits
to employees, letters from former employees attesting to misrepresentations
made in hiring practices, testimonies about the culture of fear
that characterizes the workplace, the company's potentially
lethal uses of hazardous and toxic materials, the industrial
fire hazards it condones, employee suicides from job related
stress, and the sweatshop conditions that prevail for engineers
in its Malaysian factories. Readers also find specifications
for alternative computer chips that are more efficient, less
expensive, and less energy-hungry than those made by Intel.
Many rogue
sites contain parodies of the corporation's logos in addition
to constant evocation of company brand names - grist for further
legal action. Corporations are even more concerned about the
use of the corporate name in metatags for these pages, which
opens up the likelihood that people using search engines to
find the company will likely encounter its detractors (along
with dozens of stories of consumer and employee dissatisfaction)
on their way to the \official site. For this reason, ironically,
corporations are actually buying up domain names that insult
them. These purchases are a form of preemptive strike against
those who might use such sites to provide an alternative perspective
on the corporate persona. Bell Atlantic, after its merger with
GTE became Verizon Communications and quickly registered "verizonsucks.com."
Nonetheless, they quickly encountered a Web publisher who registered
"verizonreallysucks.com." When ordered by the company
to hand the name over to it, the Web publisher relinquished
it and proceeded to register yet another name: "VerizonShouldSpendMoreTimeFixingItsNetworkAndLessMoneyOnLawyers.com
[IMAGE
26]. Verizon appears to have dropped the dispute.
More prescient
companies have appropriated the information provided by these
Agripe-sites to assist their own public relations efforts. The
proliferation of anti-Iomega sites served as a wake-up call
to the Utah-based corporation during a period of rapid growth;
the horror stories posted on the Web helped the company to pinpoint
problems and to identify those customers they could assist.
This corporation sensibly used these appropriations of its trademarks
to maintain, improve, and develop goodwill amongst its customers.
To reiterate, goodwill is a legal concept that represents a
complex relationship between a corporation as the authentic
source of the product, the symbolic values associated with a
brand name, the positive feelings these evoke in consumers,
and the corporation's interests as the guardian and trustee
of both. By focusing upon their consumers, engaging in dialogue
with them, and attending to the actual social meanings being
generated around their commodities, the corporation properly
kept intact the closed circuit of money and desire that links
the corporation, the commodity, and the individual consumer
that intellectual property law is ideally designed to protect.
The point here is quite simple; the goodwill upon which proprietary
rights in trademarks were traditionally premised is based on
a relationship. Relationships need to be established rather
than assumed, as one corporation has recently discovered to
its peril.
As many
of you probably know, MIT Press publishes a journal called Leonardo
on behalf of a non-profit scholarly arts association [IMAGE
27]. The Association (ISAST) was sued in 1999 for trademark
infringement by a French finance company - Transasia - who had
registered the term Leonardo as a trademark. Claiming that search
engine requests were turning up ISAST and the journal ahead
of the finance company - and that they were thereby losing customers
and suffering trademark dilution - they are asking that the
Association cease using the term Leonardo on the web or with
the delivery of any services. The suit was launched abruptly.
Eight armed police arrived without notice at the home of the
founder's widow, searched her home, and seized association records
(Transasia's legal position is weak; the arts organization had
used the term for over 30 years and clearly has acquired prior
rights).
Leonardo
immediately invited a worldwide protest on the web and sought
donations for a legal defense fund [IMAGE
28]. Letters of support came from all over the world and
were posted to the site. The letters of support they continue
to receive now form a body of evidence - indicating that the
organization had acquired extensive goodwill in the term, and
that it had acquired "secondary meaning." Some of
the letters comment upon the propriety of anyone attempting
to claim property in the term. Many of them decry the company's
extortion, the encroachment of corporate proprietary interests
into the public domain, and the importance of maintaining terms
of significance in European cultural heritage. Often the letters
are forwarded to the company as well. These correspondence activities
and their publication, would, of course, be less than feasible
without digital technology.
Many of
the writers make trademark arguments about the validity of the
mark, and assert the lack of any possible confusion amongst
the web-linked public. Many point to the hundreds of Leonardo
di Capria fan sites, as well as the Leonardo da Vinci hospitals
and museums that come up with any search on the Web. They show
the sophistication of this public's understanding of the web's
organization and the behavior of search engines. In publicizing
the law suit and inviting comment on the web, the arts organization
makes a topography - inviting performative speech acts that
simultaneously map and in the process create a territory - one
that may be legally used to defeat the very rights the corporation
claims to have as well as its attempts to striate cyberspace
so as to maintain "friction free" operations.
Some letters
are from website administrators who create mirror sites of the
original Leonardo and/or use their own sites or online magazines
to further advertise their opinion of the company's immorality,
its harassment, and the culture of greed they see it to represent.
This further increases the friction that anyone searching the
web will potentially encounter when attempting to find the corporation's
financial services. The company has, inadvertently, created
a situation in which even those searching for Leonardo Finance
or Transasia are as likely to find ardent and articulate criticism
of the corporation as they are to find its products. Indeed,
once our favorite digital provocateurs RTMARK got wind of the
suit, they staged a Web contest [IMAGE
29] inviting the creation of new protest sites with Leonardo
Finance in the URL
[IMAGE 30]. As a consequence, the corporate persona is located
further and further down the list of search engine results [IMAGE
31]. The corporation's properties are thus submerged by
the protest against its propriety - as well as parodies of its
behavior [IMAGE
32] that undermine any goodwill the company might hope to
achieve on the World Wide Web.
Many companies,
however, no longer intervene in the digital public sphere, and
even bypass the more public process of adjudication to go directly
to arbitration. Today, trademark holders can go directly to
one of four recognized dispute resolution arbitrator panels
under ICANN's Uniform Domain Name Dispute Resolution Policy,
foregoing any dialogue with the website administrator, or the
surfing public and demand a transfer of the name. International
Arbitrators' obligations under this policy do not include any
respect for the meaning of goodwill or free speech concerns.
The First Amendment, after all, is a local ordinance. The perception
that these arbitrators favor corporate trademark holders regardless
of the expressive intentions of those using marks in domain
names, and see all uses of trademarks as evidence of good faith,
is the source of much hostility on the Web [IMAGE
33]. Some arbitrators have gone so far as to suggest that
all uses of trademarks, even on entirely different top-level
domains, might confuse users. This would render the existence
of more than one top-level domain useless, because it would
suggest that anyone with trademark rights in one domain should
have preemptive rights over the term in all other domains. Such
a policy would have the effect of treating trademark rights
as absolute properties, rather than temporary privileges dependent
upon the state of contemporary consumer knowledge and the positive
regard in which a company is held. It would render the Web an
even more monologic space of corporate connotations, striating
it so as to preempt its unique capacities to serve as a dialogic
or smooth space for debates about property and propriety - as
well as its capacities to serve as a rhizomatic means to measure
and influence the goodwill actually felt towards a corporation.
Some culture jammers deliberately court Web users' potential
confusion to deliver the surfer into a field of connotations
directly contrary to those propounded by corporations and those
institutions upholding intellectual property laws that are seen
to limit expressive and communicative uses of the Web. As Mark
Dery describes it, jamming is a kind of "semiological guerilla
warfare" against an "an ever more intrusive, instrumental
technoculture whose operant mode is the manufacture of consent
through the manipulation of symbols":
Part artistic terrorists, part vernacular critics, culture jammers,
like Eco's "communications guerillas, introduce noise into
the signal as it passes from transmitter to receiver, encouraging
idiosyncratic, unintended interpretations. Intruding on the
intruders, they invest ads, newscasts, and other media artifacts
with subversive meanings; simultaneously they decrypt them,
rendering their seduction impotent."
The widespread
circulation of satirical advertisements, of various degrees
of seriousness, which attempt to undermine the trademarked persona
of specific commodities, is a typical tactic [IMAGE
34]. Most subvertisements target corporations who market
mass consumer goods using mass media imagery that culture jammers
believe contributes to poor self esteem, eating disorders, obesity,
and environmental damage
[IMAGE 35]. The knowledge that most of this activity violates
intellectual property laws has animated new debates about property
and propriety in an emerging popular legal culture. For instance
(and there are many) one rogue site - the World Intellectual
Piracy Organization
[IMAGE 36] explains to readers how the international organization
has misused its power over trademarks for anti-competitive purposes
and to muzzle freedom of expression.
Ultimately,
however, effective culture jamming in digital environments requires
more than the semiotician's repertoire of skills. It also requires
technological abilities to intervene in closed circuits of striation
so as to continuously reconfigure relationships between property
and propriety as these threaten to become calcified in digital
environments. This is one of the objectives of RTMARK [IMAGE
37], an arts organization whose very name illustrates that
it has taken the exploration and subversion of the cultural
power of the trademark as a focal point for activity. They territorialize
as a dot.com rather than a dot.org. Registered as a corporation,
they sell shares, and offer various mutual funds for those who
would like to invest in their anti-corporate activities. They
take the corporate form seriously, as they subvert corporate
personas with reckless and infectious humor - last year they
successfully maneuvered enough toy soldiers to bring an overbearing
corporation to its knees [IMAGE
38].
Most of
you already know this story, and so a brief history is all that
is necessary here. The arts group etoy chose their name in 1994
and put up their site in 1995; they were unable to get a trademark
in the United States for technical reasons (but through use
common law rights are acquired). The corporation Etoys wanted
to sell toys online; they were unable to get a registered trademark
(probably because the mark was too descriptive of their goods
and services). Nonetheless they did business from Etoys.com,
but found that they were losing 20,000 hits a day to the arts
group, and customers "hijacked" to the arts site complained
about the pornography and profanity they found there. After
attempting to buy the domain name from etoy, the toyseller sought
and received a preliminary injunction on dilution grounds (their
mark was arguably being tarnished by the arts group) at the
end of November, 1999. The court imposed $10,000 per day in
fines for continuing use of the domain name. A hearing was set
for December 27, but in the meantime an incredibly well orchestrated
counteroffensive was launched. Eventually the corporation both
dropped the suit, paid the arts group's legal defenses, and
allowed the two etoys to co-exist in cyberspace without insisting
upon any change in the content of the site.
For our
purposes, the dispute is significant because of the sophistication
of the tactics developed by etoy and its allies. The debate
shared a number of the features of others we have looked at.
Online forums, protest sites, petitions, chat room lobbying,
boycott threats, free advertising for competitors, and the use
of interlinked subscribers lists to provide publicity and send
protest mail to the corporation, and the use of feedback to
get press attention. However, this protest was provoked using
the rhetoric of civil society; the Web community was exhorted
to see themselves as members of a public who needed to engage,
as a movement, in a struggle for "freedom of expression"
and "equal rights" for art and commerce on the Web.
It was estimated that between 1,800 and 4,000 users were involved.
Over 130,000
digital "agents" were deployed in the ensuing "Toywar"
which involved encoded datasets that operated virtually, as
simulacra of the company's own toys [IMAGE
39]. Any one of us could have assumed the persona of a toy
soldier doing war with the corporation who sought to control
etoys on the Web - an act of mimicry that commented on the very
anonymity of the forces behind the corporate persona and the
fetishized trademarks that animate the fiction of goodwill between
a faceless corporation and the faceless consumers who are expected
to fall into position. These virtual agents were sent email
"orders" to launch toy-missiles to pressure the company
into dropping the suit: "No one will get hurt. This is
only a toywar!! But it affects the way people think and the
way corporations will operate in the future . . . if we act
now . . . therefore you need to send smart email-toy-bombs."
The struggle
involved more than text communications, however. Toywar used
both technical and legal means to target forms of corporate
territorialization on the Web while simultaneously exposing,
commenting upon, and undermining the fictions which uphold the
corporate persona - unworking the forms of commodity fetishism
in which the virtual values and personas are made and marketed
while scandalizing the legal means by which identities are established
and attain value. For example, goodwill accrues at the point
at which a transaction occurs in trademark law, it registers
the symbolic afterglow of a series of completed transactions.
In acts of mimicry, Toywar commented upon the fantastic nature
of this value in a number of ways. First they intervened at
the point of potential purchase - establishing a hacked webpage
on the corporate site to stoke desire for faux products that
delivered a satirical political alternative [IMAGE
40]. Many forms of denial of service attacks were launched.
Most effective, perhaps, was Killertoy.html, which would fill
visiting protestors' cookie based shopping carts to the brim,
over and over again. These phantom shopping carts would disappear
at the potential moment of closing the purchase. Goodwill was
always fantastic in mass marketing environments, given the separation
of means of production and conditions of consumption and the
trademarks that acted as prosthetic surrogates for the corporation's
presence in monologic fields of communication. Ironically, the
nature of those communications is more easily exposed in digital
contexts where the virtual nature of the relationship can be
mimicked with equally fantastic digital surrogates in the act
of consumption.
Targeting
the market value of the corporation's shares highlighted another
set of corporate fabulations. The etoy fund online game was
organized to play with the fantasies of the new economy stock
indexes and valuations set on the basis of virtual promises
of future returns. "A New Toy for You" was a mirror
site designed to make the moves by etoy.arts and its partner,
etoy.politics, appear as losses in the market value of Etoys
stocks [IMAGE
41]. Speculating upon the speculation they knew would drive
the share value, the arts group provided further hype to the
hype, and used their own projections of their own impact on
the share value to flood financial message boards with negative
information about the losses Etoys was suffering in terms of
goodwill due to the ongoing Web protests. Investors did in fact
dump stock and a 70% drop in share value was recorded.
Finally,
etoy and their supporters pierced the corporate veil and took
the protest directly to the shareholders, delivering shareholder
email addresses to protestors and making it clear to shareholders
that they held a share in and responsibility for actual corporate
activities - rather than an absolute right to a percentage of
profit. Etoy and Rtmark used the practice of corporate shareholding
(and mutual funds) in their own activities, putting the emphasis
upon what was shared and what was mutually held as value amongst
those who held stakes in their enterprises. All toywar agents
were given shares in a corporation, which, as etoy put it, merely
delivered a different form of revenue. Shares represented a
commitment to a form of citizenship and a loyalty to an alternative
"brand" that cultivated political goodwill. Etoys
and etoy, then, were positioned in this digital performance
space as competitors for potential market share - "just
brands with projected values of huge revenues somewhere in the
future." Etoy could celebrate a huge increase in goodwill,
in terms of actively involved participants, positive publicity,
and financial investments in the brand of politics it advocated
[IMAGE
42]. They made it clear that they were not involved in,
and did not countenance, terrorist attacks, and that the objective
was not to bring down the Etoys site, but to open virtual spaces
of corporate power to the voices and interests of others with
interests that went beyond neoliberalism as well as to new means
of calling corporate power to account in digital environments.
Although
many of the toywar agents were apathetic or burnt out - many
were symbolically buried at sea in Lego coffins - there is still
an army to call upon [IMAGE
43]. Toywar did not simply dissolve with the trademark victory.
It remains poised as a "war-machine" to do further
battle in cyberspace. The Toywar weapons and secret knowledge
are locked into high security codes, but the generals are able
to decide on a reactivation of the Toywar bombs within minutes
and put out new orders to attack. More sophisticated forms of
distributed denial of service weapons have been developed, that
will enable multiple "zombie" PCs to be activated
from a single site. Although these were not approved weapons
in the Toywar, they may well be called to duty in future battles
on digital terrain.
The object
of a war machine, in Deleuze and Guattari's terms, is not war
but the creation of conditions of mutation and change in interventions
designed to effect lines of deterritorialization. Its synthetic
relation to war comes by virtue of its antipathy to the striated
space of apparatuses of capture. Here, that involved bringing
virtual social connections to bear upon the conjunction of the
apparatuses of corporate capture through propagation of smooth
spaces of displacement. Smooth spaces, however, are never sites
of absolute freedom and they offer no ultimate salvation.
As one of
Rtmarks lawyers put it, even if activists are successful in
intimidating companies to behave with more propriety when considering
their properties in cyberspace, there are larger objectives.
A fear of web activists doesn't help the victims of toxic waste
dumping, the chilling of scientific research, or the poisoning
of our foods and the destruction of our ecosystems. Only when
the corporation is no longer treated as a person, and its real
agents of destruction no longer protected by legal fictions
enabling limited liability, can we anticipate accountability.
Web activism, with respect to corporate propriety then, must
engage in a politics that goes beyond Enlightenment concerns
with individual rights of expression and free speech - linking
forms of civil disobedience with forms of affiliation that provide
platforms for publicizing more dispersed sites of global corporate
misconduct.
In this
vein, one of Rtmark's earliest projects remains one of its most
effective. From a spoof on Taco Bell's crass appropriation of
Mexican revolutionary iconography [IMAGE
44] the corporate creation of a liberation army seeking
the People's Republic of Gorditas - they link us to a real Mexican
village, Popotla, a small fishing town in Baja, just twenty
minutes south of San Diego [IMAGE
45]. The villagers' struggles for livelihood and liberation
have been gravely undermined by the creation of one of digital
technology's latest and greatest works in contemporary mass
culture.
People here
have lived from the sea for decades, engaged in small-scale
fishing for subsistence and local restaurant use. Just 300 meters
from the village in the Pacific Ocean lay a unique underwater
garden with giant kelp plants that exist in only two places
on the globe. Each plant provides a home to over two and a half
million creatures and distinctive species that cannot survive
in any other environment. One day, just a few years ago, official
government cars accompanied armed strangers into the fishing
grounds. Local people's boats were sunk and thunderous underwater
explosives were set off, destroying life forms for miles. A
huge wall was built locking the local peoples out as well as
cutting off their access to the sea. Large warehouse-like buildings
were erected; [IMAGE
46] a huge pool was constructed and filled with seawater
treated with massive amounts of chlorine. The pool water was
dumped directly into the Pacific Ocean, on top of the kelp beds,
every week for months on end. Laboratory tests done for the
indigenous peoples (with the help of sympathetic NGOs) revealed
chlorine, toxic chemical solvents, and untreated human waste.
Sea urchins disappeared, fish populations dropped, and species
vanished. Not a single local person was employed in this great
new enterprise. As a consequence of all this, the copyright
industry now possesses a grand new digital product [IMAGE
47] - a film called Titanic - and a powerful trademark
to link to a variety of merchandising rights. The people of
Popotla, however, have lost their livelihood resources and a
whole way of life. We have all lost an irreplaceable ecological
landscape of forever-unknown value.
The promotional
tagline for the film was "Nothing on Earth Could Come Between
Them" (referring to the romance between the main characters)
yet the very existence of this romantic union as a celluloid
mythic narrative and cultural commodity required, as Rtmark
revealed, a very real and impenetrable boundary - a firewall
if you will - between the production of the film and the surrounding
environment. Paramount Pictures, Twentieth Century Fox, and
James Cameron did everything possible to come between the people
of Popotla and their way of life with devastating results. The
wall of Popotla is a literal wall and boundary that protects
the capitalist culture industry from the consequences of its
actions as well as from the needs and lives of the marginalized
who most definitely do not possess the socio-economic characteristics
of the target market. It is also, and no less significantly,
a figural boundary that represents the restricted symbolic and
moral economy of property and propriety in the digital era.
On one side of the wall is the strategic logic of mass media
commodity fetishism, embodied in trademark and copyright law,
which guarantees goodwill towards the corporate persona and
its products but shelters it from critical considerations of
corporate practice. On the other side is the guerrilla logic
of the popular, embodied in transformations of cultural meaning
that subvert the coherent identity of the corporate persona
and comment on the conditions of its production.
Villagers
in Popotla sought to remake the symbolic meaning of the wall
that separated them from their way of life. They transformed
the wall from blank and mute space that marked a no trespassing
zone into a brilliant mural [IMAGE
48] that told the story of their subjugation to corporate
capital and their will to survive the disaster that the film
Titanic visited upon them. One of their murals cries "Mariscos
Libre," [IMAGE
49] extending the language of liberation to appeal to our
interconnection with natural ecosystems and the need to break
down walls that divide the natural world into zones of private
resources for corporate exploitation. Similarly, Rtmark attempted
to rupture the firewall between the strategic logic of mass
culture and the tactical logic of popular culture by using the
Web as a medium and form for the subversion of the corporate
persona. They did so by putting the story of the Titanic's production
and thus the story of the people of Popotla into circulation
in the very realm of publicity where goodwill is generated.
Few forms
of freedom exist without other forms of control; all cultural
relations are also relations of power and this is no less so
in digital environments. As John Perry Barlow has suggested,
we do have some leverage as the first ancestors in a digital
era. We are indeed seeing a field of power shifting in digital
terrain. As systems of univocal proprietary control give way
however unevenly, to more interactive ethics that interrogates
the claims of property with questions of propriety we have a
unique opportunity - to challenge the impositions of corporate
privilege, interrupt the corporate assumption of goodwill, and
insist upon new forms of responsibility and social accountability
in digital environments.
END NOTES
Rosemary Coombe holds the Canada Research Chair in Law, Communication
and Cultural Studies at York University. Professor Coombe would
like to thank Lara Tessaro and Louise James for their research
assistance. Andrew Herman is associate professor of Sociology
and director of the Center for the Humanities at Drake University.