hen it started, the
Internet was our playground, Wild West, and virtual bohemia. So we
thought. Turns out it just took a while for the cybercops to show
up. Last month's shutdown of
Thing.net, a service provider for
many artist and activist organizations, could be a harbinger of
policing to come—namely, an insidious new way to quash free
expression on the Web.
This story begins with The Yes Men, a self-described
"genderless, loose-knit association of some three hundred impostors
worldwide." On December 3, the 18th anniversary of the toxic gas
leak at a Union Carbide plant in Bhopal, India, that killed
thousands, these pranksters with a cause e-mailed (to thousands of
journalists) a press release purporting to be from Dow Chemical,
which now owns Union Carbide. The phony release explained why Dow
would not clean up the site or help the hundreds of thousands in
Bhopal still suffering health problems. "We understand the anger and
the hurt," went one quote attributed to a Dow spokesman. "But Dow
does not and cannot acknowledge responsibility." The Yes Men
included a link to their own Dow-Chemical.com, a Web site designed
to look very much like the corporation's real site at http://www.dow.com/homepage/index.html.
The Yes Men called this a parody, but Dow called it
defamation, trademark infringement, and cybersquatting. That
difference of opinion won't be argued, much less resolved, however.
Dow's lawyers complained immediately that The Yes
Men's Web site violated the Digital Millennium Copyright Act, and
they demanded that Verio, an Internet access provider, disable it.
Verio (part of Nippon Telephone and Telegraph) is an upstream
provider with many small service providers feeding into it—among
them Thing.net, which housed the offending server.
On December 4, Thing.net's founder and executive
director, Wolfgang Staehle, happened to be en route from Paris to
Berlin, and the technician on duty in the Chelsea office told Verio
he was not authorized to act. That night after business hours, Verio
shut down Thing.net's entire network, all 256 IP addresses,
including Artforum, P.S.1, Tenant.net, Mabou Mines, and RTMark.
Staehle didn't even know about The Yes Men site,
which had been brought online by the kindred spirits at RTMark,
another group of sophisticated culture jammers. (They are probably
best known for implementing GWBush.com, which gave the
president to be's minions fits during the campaign.) Staehle points
out that Verio had the technical ability to close down RTMark's
server and leave everyone else alone. Instead, the whole network
stayed down for 16 hours while Thing's customers screamed for their
e-mail. Meanwhile, The Yes Men had outsmarted themselves by
registering Dow-Chemical.com in the name of James Parker, son of
Dow's CEO. This allowed Dow to claim and redo it, but not before it
popped up on numerous mirror sites (see theyesmen.org) and mushroomed over
the land in articles like this one.
Contacted by e-mail in Paris, Andy Bichlbaum of The
Yes Men confirms that no one from Dow or Verio has been in touch.
"Dow chose to address not the ISP hosting us, but the entity
providing bandwidth. The gist of that aim seems clear." Control the
infrastructure and you control the Web.
In this case, bigger and smaller service providers
duke it out while the parodists and their target sit on the
sidelines. The very structure of the Web lends itself to this, with
so many layers of connectivity between poster and reader, most of it
controlled by large corporations.
In a December 13 telephone conversation, Verio
informed Staehle that they would be terminating Thing.net's
contract, citing the Digital Millennium Copyright Act—though when
the termination notice arrived, it referred only to repeated
violations of Verio's acceptable use policy. Staehle says he knows
of only one other problem, or unacceptable use. In 1999, Electronic
Disturbance Theater, a Thing client, launched a virtual
demonstration against eToys, sending numerous cyber shoppers through
the site all the way to the checkout counter where they disappeared.
Verio did not shut down the network then, just the one computer
where the attack had originated.
Whether or not the Internet was ever an autonomous
zone, it exists now "to make the world safe for corporations and
e-commerce," Staehle points out. "Artists like us, because we try to
get as much wiggle room for their projects as we can." But the Dow
incident has already damaged his business, and Staehle, a digital
artist himself, remains worried that his small operation will lose
customers during the transition to another upstream provider. He's
wondering if he should try using some European ISPs. There is no
DMCA in Europe. Yet.
Martha Wilson, director of the online arts
organization Franklin
Furnace, and a veteran of the culture wars, says she is reminded
of the pornography crackdown. "Giuliani and other mayors were
successful in prosecuting the people selling porn to create a
bottleneck," she says. "If they could not get to the producers, they
would get to the vendors."
Svetlana Mintcheva, coordinator of the Arts Advocacy
Project at the National Coalition Against Censorship, says that
technically, however, what's happened to Thing.net is not
censorship. It's worse. "What we have here is something that doesn't
even go to court," says Mintcheva. "They were just preemptively
closed. It sets a kind of precedent where corporations can take away
free speech, no matter what kind of First Amendment protections we
have, and there isn't much to be done legally." Verio reps declined
to comment.
The DMCA seems set up to encourage exactly the sort
of policing done in this case by Verio. The law has a safe-harbor
provision that says an ISP isn't liable for the infringing behavior
of its customers—as long as the ISP responds quickly when a
copyright holder claims its rights are being violated. And who wants
to leave the safe harbor to become a test case? Last year the Church
of Scientology was able to force the search engine Google to block
links to Web sites critical of the church, claiming copyright
infringement.
"Censorship is changing to include some of these
intellectual property issues," says Wendy Seltzer, a staff attorney
with the Electronic Frontier
Foundation and founder of Chillingeffects.org, a
clearinghouse related to online rights. "Copyright is now being used
as a tool of censorship. Trademark. A lot of what we see at Chilling
Effects is people using the intellectual property laws as a cudgel
to shut down speech they dislike."
Seltzer points out that there is now a "strange
difference" between intellectual property law and defamation law.
"Service providers are absolutely immune from liability for
defamatory content posted by people using their servers," she says.
"We allow them to look the other way while people post their message
boards. There we recognize the importance of preserving a free space
for speech and commentary, yet as soon as somebody throws a
copyright allegation into the mix we seem to be giving the service
providers more responsibility to police."
Everyone has the crucial right not to be
misrepresented, but for individuals that is rarely a copyright
issue. This seems to be another example of corporate rights growing
and individual rights shrinking. The DMCA is a new law (passed in
1998), and it needs fine-tuning. Unfortunately, the climate for that
couldn't be worse. As George W. Bush famously remarked when he found
out about RTMark's GWBush.com: "There ought to be limits to
freedom."
