THE LAW AND POLITICS OF INTERNET ACTIVISM:
By ANITA RAMASASTRY
|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
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 (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.
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."
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 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.