Dow v. Thing

A Free-Speech Infringement That's Worse Than Censorship

When 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 www.dow.com.

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.

Thing.net founder Wolfgang Staehle: The Internet exists "to make the world safe for corporations and e-commerce."
photo: Robin Holland
Thing.net founder Wolfgang Staehle: The Internet exists "to make the world safe for corporations and e-commerce."

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 Projectat 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."

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