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Shutting Down an Entire Artists Network over an Unresolved Complaint about One Site Sets a Worrisome Precedent for Corporate Control over the Work of Artists
NEW YORK CITY, NY -- In the contemporary Internet climate of consolidation, it is increasingly difficult for artists and arts organizations to find a safe harbor where they are free to create and where what they create is protected from the limitations and chilling effects of Internet filters, server content restrictions, and corporate dominance.
The legendary THE THING has been an Internet Presence Provider for activist and arts organizations primarily in the New York area for ten years. It hosts arts and activist groups and publications including P.S.1 Contemporary Art Center; ARTFORUM; Mabou Mines; Willoughby Sharp Gallery; ZINGMAGAZINE; JOURNAL OF CONTEMPORARY ART; and Tenant.net. Among many others, artists and projects associated with thing.net have included Sawad Brooks, Heath Bunting, Vuk Cosic, etoy, John Klima, Jenny Marketou, Mariko Mori, Prema Murty, Mark Napier, Joseph Nechvatal, Phil Niblock, Daniel Pflumm, Francesca da Rimini, Beat Streuli, and Beth Stryker. It also offers dial-up access; authoring and design services; arts-oriented newsletters, and online conversation spaces. Vistors can log on as a guest and visit discussions such as undercurrents: a forum about the interrelations of cyberfeminism, new technologies and globalization, moderated by Irina Aristahrkova, Maria Fernandez, Coco Fusco, and Faith Wilding.
But in December, after receiving legal threats from the Dow Chemical Corporation, thing.net's Internet access provider, NTT/Verio, temporarily shut of all the sites which thing.net hosts and subsequently gave notice that it will unilaterally terminate thing.net's contract on February 28.
In the letter to Verio, Dow's lawyers asserted that in a parody site, the Yes Men -- a group who infiltrate "the fortified compounds of commerce" to call attention to corporate/political abuses -- had violated the Digital Milenium Copyright Act (DMCA) by using copyrighted texts and images and had also violated the Anticybersquatting Consumer Protection Act, which makes it unlawful for a person to register a domain name incorporating the famous trademarks of another and provides for statutory damages of up to $300,000.
The Yes Men site was implemented online by thing.net-hosted RTMark which publicizes corporate subversion of the democratic process and fosters art work which investigates corporate activities. Yes Men's parody looked like a real communication from Dow on the 18th anniversary of the disaster in which thousands of people died as a result of an accident at a Union Carbide plant in Bhopal, India. Union Carbide is now owned by Dow. In part, the fake press release read:
"'We are being portrayed as a heartless giant which doesn't care about the 20,000 lives lost due to Bhopal over the years,' said Dow President and CEO Michael D. Parker. 'But this just isn't true. Many individuals within Dow feel tremendous sorrow about the Bhopal disaster, and many individuals within Dow would like the corporation to admit its responsibility, so that the public can then decide on the best course of action, as is appropriate in any democracy. "Unfortunately, we have responsibilities to our shareholders and our industry colleagues that make action on Bhopal impossible. And being clear about this has been a very big step.'"
Parody and the use of corporate-owned images in artworks have been found to be protected in some cases. For instance, last year a federal court dismissed toymaker Mattel's lawsuit which sought to stop artist Tom Forsythe from using the Barbie doll in a series of photographs commenting on the doll and the values it embodies.
"The intellectual property laws do not grant corporations the right to control all artistic speech concerning the role of products and corporations in our society," Annette L. Hurst, Lead Counsel from the law firm Howard, Rice, Nemerovski, Canady, Falk & Rabkin, which represented Forsythe in Mattel v. Walking Mountain Productions, commented about that case.
In the Dow case -- if, as the Yes Men put forth on their web site, they filed for the domain name dow-chemical.com using the name and the home address of James Parker, the son of the Dow CEO -- the situation may be complicated because of compounded cybersquatting issues.
However, Verio's shutting down of an entire network over an unresolved complaint about one site sets a worrisome precedent for corporate control over the work of artists -- making it possible to intimidate a provider to the point where the existence of challenging art on the Internet could be in jeopardy.
"If we could afford a good legal team I think we could challenge them on the grounds that they didn't have to shut down thing.net's complete c-class network (256 IPs) to get rid of the RTMark site. (which occupies only one out of the 256 addresses). To shut down the complete network is not something they were required to do by the DMCA," artist Wolfgang Staehle, Executive Director of thing.net, emphasized.
THE THING -- which since 1991 has fostered network artists, critics, curators, and activists and in the shifting Internet climate of the last decade, has sought ways to interconnect their diverse interests and activities -- now seeks to locate on a system which will be hospitable to art and activist content.
In response to a question from CURRENT about what kind of systems thing.net would implement if it were to set up its own autonomous network, Wolfgang Staehle commented that "Our intention is to build redundancies into the system by setting up backup servers with cooperative ISPs in Europe and elsewhere. Another solution we've been discussing is to purchase a block of 4096 IPs from ARIN [American Registry for Internet Numbers] and have two upstream providers. This won't solve all the problems but it could give us a bit more room to maneuver in similar future situations, should they arise."
Meanwhile, a lot of people have offered some kind of support -- including donations from two to 200 dollars, Brian Boucher, Editor of THING.REVIEWS, told NYFA Current. "We've been around for ten years. People really do appreciate what we do; it's very encouraging -- a matter of raising some money; evaluating offers; seeing how things work out with Verio." Boucher also noted that in response to articles in THE NEW YORK TIMES and WIRED, many people have contacted Verio. "Verio originally told us that they would work out a timetable. We are going on the assumption that we have until February 28, but they have not yet followed up on the timetable," he commented.
Although the Yes Men parody site now bounces to the real Dow Chemical site, many mirror sites have sprung up, including: www.dowethics.com www.dowindia.com and www.mad-dow-disease.com
Trying to suppress such a site "is like the proverbial fight with the Hydra," commented Wolfgang Staehle. "For the Yes Men and their supporters, the site is a parody, and I personally tend to agree. If they were to put a disclaimer on the page it wouldn't work -- it wouldn't have the same effect. So for the parody to be effective, they had to use the logos and the corporate lingo and so on. What the Yes Men are doing is really performance art. Only they prefer the arena of the real world to the theater or the gallery."
Sources/resources:
THING.NET -- bbs.thing.net
THE YES MEN -- www.theyesmen.org
RTMARK -- www.rtmark.com
NTT/VERIO -- www.nttverio.com
EDUCAUSE -- www.educause.edu _DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) -- www.educause.edu/issues/dmca.html
ELECTRONIC FRONTIER FOUNDATION -- www.eff.org _ANTICYBERSQUATTING CONSUMER PROTECTION ACT -- -- www.eff.org/GII_NII/DNS_control/s1255_1999_bill.html
"First Amendment Protects Criticism of Barbie Doll and the Values it Represents, Federal Court Affirms" Arts Wire CURRENT -- www.nyfa.org/current_archive/2001/cur091101.html September 11, 2001
"The Lawsuit Against etoy is Dropped" Arts Wire Current -- www.nyfa.org/current_archive/2000/cur020800.html February 8, 2000 Volume 9, No. 6
Matthew Mirapaul "Cyberspace Artists Paint Themselves Into a Corner" THE NEW YORK TIMES -- www.nytimes.com/2002/12/23/arts/design/23ARTS.html December 12, 2002
Michelle Delio "DMCA: Dow What It Wants to Do" WIRED - www.wired.com/news/politics/0,1283,57011,00.html
December 31, 2002
Posted by Brian Stefans at January 13, 2003 09:58 AM