The commercialization of the internet has been surprisingly good for amateurs and upstarts up until now. A couple of college kids with a well-managed bookmark list become Yahoo. A lone entrepreneur founds Amazon.com at a time when Barnes and Noble doesn't even have a section called "internet" on its shelves, and now he's Time's Man of the Year. A solo journalist triggers the second presidential impeachment in US history. Over and over again, smart people with good ideas and not much else have challenged the pre-wired establishment and won. The idea that the web is not a battle of the big vs. the small but of the fast vs. the slow has become part of the web's mystique, and big slow companies are being berated for not moving fast enough to keep up with their net-savvy competition. These big companies would do anything to find a way to use what they have -- resources -- to make up for what they lack -- drive -- and they may have found an answer to their prayers in lawsuits.

Lawsuits offer a return to the days of the fight between the big and the small, a fight the big players love. Ever since patents were expanded to include business models, patents have been applied to all sorts of ridiculous things -- a patent on multimedia, a patent on downloading music, a patent on using cookies to allow shoppers to buy with one click. More recently, trademark law has become an equally fruitful arena for abuse. Online, a company's URL is its business, and a trademark lawsuit which threatens a URL threatens the companies' very existence. In an adversarial legal system, a company can make as spurious an accusation as it likes if it knows its target can't afford a defense. As odious as Amazon's suit of Barnes and Noble is, it's hard to shed any tears over either of them. etoy and Leonardo, on the other hand, are both not-for-profits, and defending what is rightfully theirs might bankrupt them. If etoy cannot afford the necessary (and expensive) legal talent, the preliminary injunction stripping them of their URL might as well be a final decision.

The definition of theft depends on the definition of property, and in an age when so much wealth resides in intelligence, it's no wonder that those with access to the legal system are trying to alter the definition of intellectual property in their favor. Even Amazon, one of the upstarts just a few years ago, has lost so much faith in its ability to innovate that it is now behaving like the very dinosaurs it challenged in the mid-90's. It's also no surprise that both recent trademark cases -- etoy and Leonardo -- ran across national borders. Judges are more likely to rule in favor of their fellow citizens and against some far away organization, no matter what principle is at stake. The web, which grew so quickly because there were so few barriers to entry, has created an almost irresistible temptation to create legal barriers where no technological ones exist. If this spate of foolish lawsuits continues -- and there is every indication that it will -- the next few years will see a web where the law becomes a tool for the slow to retard the fast and the big to stymie the small.

Clay Shirky is a contributing editor at FEED and Professor of Media Studies at Hunter College.

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