Saturday, September 11, 2010

Social Pressure and the Law: Craigslist’s “Adult Services” and Zynga’s Business Practices

Living and working in the Bay Area, a place where you can find people who care deeply about anything and everything, offers a front row view of the impact social pressure can have, often despite the legal nature of the conduct at issue. Two different online companies are experiencing that pressure now, and their response to it may reflect the power such pressure can wield.

Craigslist, the popular online resources/classified ad site, has faced a steady stream of criticism for years over listings that critics claim are thinly disguised advertisements for sex for hire services by prostitutes (both male and female). Politicians like Rep. Jackie Speier (D-Hillsborough, CA) and possible South Carolina gubernatorial candidate Henry McMaster have launched investigations and threatened lawsuits over what they characterize as websites like Craigslist being used to “facilitate criminal activity”. Craigslist’s CEO, Jim Buckmaster, points out that censoring the postings on the site, or forcing it to close down its “Adult Services” pages, won’t really address the social concerns over this kind of activity. Rather, he points out, all a closure will do is cause the companies and individuals advertising to move their ads to offshore websites, or to other sections of Craigslist, such as the “Personals” section. Critics of the closure advocates also note that ads of this nature have run for over fifty years in alternative newspapers (see the Bay Guardian and SF Weekly in Northern California for examples), without drawing similar pressure.

Despite the fact that no one claims that the First Amendment doesn’t protect these listings, and that Craigslist only starting charging for these ads when it was pressured to do so by a group of attorneys general, and that it donated the funds received to charity (until charities started publicly refusing to accept the donations), the pressure on the company continued. In the spring of 2009, Craigslist started manually reviewing all of the Adult Services postings, and reported any that seemed to indicate the involvement of underage persons to the National Center for Missing and Exploited Children. Once again, these measures didn’t appease the critics, nor did they stop the media pressure and threats of litigation and criminal charges.

Finally, last week Craigslist threw in the towel, first slapping a “censored” label over the Adult Services section, and then removing the entire section from the site.

In a similar social pressure vein, SF Weekly, one of those alternative newspapers with a prominent “Adult Entertainment” section laden with ads for escorts, phone sex, massage services and strip clubs, featured in its September 8-14 issue, a cover story by Peter Jamison about Zynga, the creator of Farmville, a hugely popular online game. The cover illustration features a farmer in overalls, wearing a black Zorro-like mask, carrying a pitchfork and a bag of money, with a pink pig looking on with a caption over the pig’s head that reads “WTF?”, a reference I assume needs no translation. The title on the cover page reads: “Zynga Has a Simple Business Formula: Steal Someone Else’s Game. Change Its Name. Make Millions. Repeat.” A pull quote in the middle of a page of the article, attributed to a former employee, reads: “Zynga’s Motto is ‘Do Evil’. I Would Venture to Say It Is One of the Most Evil Places I’ve Run Into.”

This all sounds pretty ominous. It is only deep in the article that Jamison acknowledges that nothing that Zynga is doing is illegal or constitutes copyright infringement or any other violation of intellectual property rights. Rather, the accusation is that the company is very aggressive in exploiting unprotected ideas for games developed by competitors, and essentially building a better mousetrap by focusing on the social networking appeal of these games (virtually all Farmville players play the game through their Facebook connection). Its’ hard to tell what the goal of this attack piece is – other than to assert that Zynga has committed the sin of being aggressively capitalist, instead of fostering innovation in the game universe. If the point is to attempt to get Zynga to moderate its conduct via social pressure, despite the legal nature of that conduct, it is again a bit troubling, as are the efforts of the Craigslist critics.

All participants in these conflicts, of course, have the absolute right to make their divergent viewpoints known, and to use whatever media platforms are available to them to present those views. However, when the expression of those views spills over into threats of litigation, criminal prosecution and thinly supported attacks on business reputation, despite an absence of any evidence of a violation of IP or other laws, then we begin to cross the line from free expression into coercion – a line 1st Amendment protectors need to be vigilant to preserve – always reminding critics that the 1st Amendment isn’t in place to protect speech we like – rather it is there to protect speech we don’t like.

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