Wednesday, Jun. 05,
2002
On May 21, I received an email informing me that the World Trade
Organization (WTO) was going to dissolve itself and create a new
organization that would "have human rights rather than business
interests as its bottom line." Why? Because of "recent studies which
indicate strongly that the current free trade rules and policies
have increased poverty, pollution, and inequality, and have eroded
democratic principles, with a disproportionately large negative
effect on the poorest countries."
I read the message and laughed. I knew it was a joke - some would
say a clever one at that. The message had originated from the Yes
Men, a group of Internet activists who have used the web and other
tools to spoof and protest various aspects of globalization.
Not everyone thought it was a spoof, however. Members of the
Canadian Parliament debated the issue on the floor. One MP inquired
about the impact that the WTO's dissolution would have on Canadian
lumber, agriculture and other trade disputes.
In response, the WTO informed the public that the "WTO
representative" who had issued the announcement was actually an
imposter. No dissolution was contemplated; the WTO was alive and
well.
While parodies such as the email may be meant to be funny, it
turns out that the WTO takes them very seriously. Could it sue the
Yes Men, on the basis of this or similar parodies, arguing that they
have violated copyright and trademark law? The First Amendment's
strong protections for parody suggest the answer should be no, but
the WTO may still try.
The Yes Men and the WTO: A David and Goliath Story for the
Internet Era
Who are the Yes Men? They describe themselves as "a genderless,
loose-knit association of some three hundred impostors worldwide."
What do they do? In past appearances, the Yes Men have attempted
to startle and shock audiences by proposing "solutions" built on
free-trade ideas. For instance, they have proposed selling votes
to the highest corporate bidder, making the poor recycle
hamburgers to cure world hunger, and permitting countries to
commit human rights abuses with a system of justice vouchers modeled
after pollution vouchers. Offering contemporary versions of Jonathan
Swift's "Modest Proposal," the Yes Men use satire in an attempt to
wake us up to some of the logical consequences of globalization.
This is not the first time that the Yes Men have taken on the
WTO. They maintain a website (http://www.gatt.org/), which is a
parody of the WTO website. (Its name refers to the GATT - the
General Agreement on Tariffs and Trade, the treaty that was a
precursor to the WTO.)
The website was created in 1999, as a response to the WTO
ministerial meeting in Seattle. Its creator was RTMark.com, another group
of Internet activists, who sponsor so-called "mutual funds" and
invest in Internet activism projects.
In 1999, the WTO protested the creation of the website and issued
a press
release denouncing such websites as false and misleading. And
later, in 2001, prior to its ministerial meeting in Qatar, the WTO
attempted to shut down the website. It issued another
press release - this time specifically aimed at Gatt.org.
In the second press release, the WTO described the parody site as
"A fake WTO website [that] has been created to deceive Internet
users." And it suggested illegality, noting that "the use of WTO
designs, logos and materials is strictly unauthorized. . . "
Finally, in November 2001, the owner of the Gatt.org website
received a call from the host of its webpage, Verio. The WTO had
contacted Verio and asked them to shut down the gatt.org site for
copyright violations.
The Yes Men Strike Back: Parody-Creating Software Anyone Can
Use
The Yes Men, however, did not cower in the face of the WTO's
demand. Indeed, rather than shut down their site, they developed a
new software tool to create more parody sites: open-source
"parody-ware" that allows any Internet user to create a parody.
For example, if you want to spoof the website of CNN or Nike, you
could acquire a domain with a similar or related name such as
CNNN.com or Neeke.com and use the software to create the parody. The
software duplicates the website, and then changes words and images
as desired.
A parody of the CNN website replaced the words "United States"
and "Afghanistan" with the words "good" and "evil". The software was
originally called "Yes I Will," but is now labeled "Reamweaver" - a
play on the name of the popular web publishing tool Dreamweaver.
The Parameters of Parody on the Internet: Can the WTO
Sue?
The WTO alleged in its press release that the Yes Men's use of
the WTO logo and images are an unauthorized use, and thus a
violation of copyright laws. But the Yes Men believe that gatt.org
is a legitimate form of parody - and thus that it falls within the
"fair use" exception to the copyright law. In addition, they have
argued that parody is also protected as a form of free speech under
the First Amendment. But what is a parody, legally speaking?
It has been a long-standing practice in the U.S. to spoof our
cultural icons, public figures and celebrities. A parody - a very
popular variety of criticism, and of humor - exists when one
imitates a serious work for a humorous or satirical effect.
Parodies must inevitably make use of someone else's work in order
to critique it. This use of another's work, symbols, logos or
language creates a conflict between the creator of the work that is
being parodied and the creator of the parody. No one likes to be
criticized or ridiculed.
Why does the law protect parody? First, as the Yes Men have
argued, parody can considered a legitimate form of speech protected
by the First Amendment.
Second, without such protection, it would be difficult, perhaps
impossible, for parody to exist as a form of expression. Can you
imagine having to ask permission from the copyright/trademark owner
of the work you wish to parody, in order to use their work in your
parody? Would they ever say yes?
What Is, and Is Not, A True Parody
Copyright law prohibits the substantial use of a copyrighted work
without permission of the copyright owner. But the "fair use"
defense exempts true parody from the copyright law. Accordingly,
several recent decisions have had to cope with the question of what
a true parody is.
In 1994, in Campbell v.
Acuff-Rose Music, Inc., the Supreme Court held that 2 Live
Crew's rap song "Pretty Woman" was a parody of the Rob Orbison song
"Oh, Pretty Woman," and thus could not be the basis for a copyright
suit. The rap song counted as a true parody, according to the Court,
because it "reasonably could be perceived as commenting on the
original or criticizing it, to some degree."
More recently, the owner of the domain name and website PETA.org
argued that his use of the domain name was a lawful parody.
Animal-rights activists know PETA as an acronym for People for the
Ethical Treatment of Animals. But in cyberspace, the letters briefly
stood for People Eating Tasty Animals. The site described itself as
"a resource for those who enjoy eating meat, wearing fur and
leather, hunting and the fruits of scientific research (and more!)."
PETA sued, and the domain name
owner, and claimed parodist, lost in court. He was found to be
in violation of the U.S. anti-cybersquatting law, and to be liable
for trademark infringement.
He was also ordered to give up the web address to PETA. He could
criticize PETA, the court suggested, but from another website. Using
the peta.org domain name caused many readers to initially assume
that they were accessing an authentic PETA website, and resulted in
confusion rather than a legitimate satire.
Under the same logic, it seems possible that the Yes Men might be
forced to give up their gatt.org domain name, though the case is not
as clear-cut as if they had the domain name wto.org.
The PETA decision's logic, however, is flawed. Confusion is part
of parody. It may take some time for a reader or viewer to
understand that what he or she is viewing is a parody. In fact, the
beauty of parody is when one does realize that one has been fooled.
The Politics of Internet Parody: Websites Receive Threats to
Shut Down
The Yes Men is not the only group to feel the heat. Within the
past few years, several other websites have received legal notices
asking them to shut down their parody sites, or risk being in
violation of U.S. copyright and trademark laws.
For example, Reverend Jerry Falwell is not happy with the parody
sites JerryFalwell.com and JerryFalwell.com - both of which were
launched by an Illinois resident who was angered by Falwell's
accusations relating to the September 11th terrorist
attacks and their purported connection to gays and lesbians. The
homepage shows Falwell sticking his foot in his mouth repeatedly. In
October 2001, Falwell's lawyer sent a cease-and-desist letter to the
websites' owner, charging him with trademark infringement.
More recently, The Republican Party of Texas threatened to file a
lawsuit against the website Enronownsthegop.com. The
site, modeled after http://www.texasgop.org/,
lampoons several state GOP incumbent candidates for refusing to
return tens of thousands of dollars in PAC money contributed by
Enron employees.
As Internet activists take to the web to create parody sites that
critique social, cultural and economic policies, it is no surprise
that the object of such parodies - be it the WTO, Jerry Falwell or
the Republican Party of Texas - will attempt to stifle such speech.
What the Yes Men (and 2 Live Crew before them) have proved, however,
is that it is possible to fight back.
