Etoy: It's Not Over Yet

Yesterday, while the management of eToys was faxing, calling, and emailing the media to get its story out, its legal team had sent a very different message. You probably saw our pointer to the Wired story which claimed the toy company had "given up." No such luck. The story behind the scenes was a little different. Click for more.

It's one thing to drop a lawsuit. It's another to "move away" from it. According to Chris Truax, the lawyer for the Etoy art group, which version the media heard depended on what time they were in touch with the eToys management. The initial version, he claims, was that eToys was dropping the suit. A later version was that they were "backing away" from the suit. A third version reassured the press that a precondition specified in the legal document was never intended to be a demand - only a request.

To see how the coverage changed throughout Wednesday, see the first Wired story, then the NYT/CNET story, the Yahoo/TheStandard story, and then the second Wired story.

The problem was that eToys.legal was not working from the same playbook as eToys.PR. The precondition, clearly a showstopper, also calls into question whether the giant toy firm has a clue about what is really at stake.

That precondition was:

"to give good faith consideration, as our neighbor on the Internet, to concentrating the profanity, nudity and violence that is sometimes part of the etoy corporation message on etoy corporation's other websites."

Asking artists to censor their work, of course, flies like a lead wheelbarrow. At the same time the company spokesman was saying "our intent was never to silence free artistic expression," their legal team was doing precisely that. The entire short letter in which this request was made was focused on finding a resolution to the perceived problem of "profanity, nudity, and violence," and concluded by noting that co-existence was possible if "etoy corporation will respond favorably to this proposal."

The later Wired story quotes eToys management as putting this spin on it:

"This is a simple, straightforward, good-faith effort on our part to resolve this matter. We are asking that they make good-faith efforts to put some of the material that kids and parents might find offensive on another part of the site."

They can repeat the words "good faith" all they like, but that doesn't make this any less censorship. Imagine operating as an artist, knowing that for the rest of your tenure with the Etoy art group you must work very carefully not to put material inappropriate for children too close to your homepage. One use of the F-word already led to this lawsuit; how hair-trigger would the lawyers be the second time around? You'd want to tone down your message, lest you be accused of working in "bad faith."

But maybe this letter was just badly worded; perhaps there was a miscommunication somewhere between the PR and the legal departments.

Or, maybe this whole episode was a cynical attempt to calm down the activist community and get the story out of the public eye.

Think about what eToys is really saying. They have cost the art group a fair amount of money in legal bills and have shut down their website for (to date) a month. Now they say they want to walk away as long as Etoy does the same.

If someone came onto your property, stole your computer - and then a month later, after you'd spent thousands of dollars trying to get it back, offered to return it on the condition that you promised not to sue - would you be inclined to accept that condition?

How would you feel if they asked you to make a "good-faith effort" not to use your computer to write any "profanity"?

Chris Truax stopped short of saying whether Etoy would or would not continue their defensive countersuit if eToys' original suit were dropped, saying only "if the suit is dropped unilaterally, that's a very positive step." In my talks with him, he has seemed committed to finding a way to settle this matter without resorting to a knock-down, drag-out court battle, and he has said he'd like to help eToys management to educate themselves about being good netizens.

But he also pointed out several times that "the devil is in the details." And, of course, he's right. This whole mess won't be over until it's over.

It's a shame that the courts are still seeing issues like these at the end of 1999; those in positions of power should have learned about being good netizens by now. Etoy's story isn't all that unusual. While the art group has been under fire, there have been simultaneous attacks on the scholarly arts organization Leonardo and a computer club which happens to share the same initials as the BBC. Stay tuned.

Comments

required additional viewing:

[bons]

What remains of ETOY
Protest.net's overview of this mess
RTMarks's etoy page
ETOYS stock value in the past month accoring to Alta Vista
A better stock picture from yahoo.

At this rate, ETOYS will be worthless soon enough. How low does it have to fall before it simply ceases to exist in it's current form? In this age of internet stocks being so highly valued how can ETOYS not realize the damage this has caused them? How can they be so blind?

Perhaps they have forgotten that we talk to each other. Perhaps they have forgotten that we can hear all sides of the stories. perhaps they have forgotten that we could have been their market and their investors had they not done this.

Perhaps they're just blind.

The Virtual Suburbs?

[MAXOMENOS]

eToys apparently still doesn't get it. Internet was never meant to be a shopping mall. Yes, commerce can succeed in this medium, but that does not neccesarily make this a shopping mall.

Internet is a neighborhood. This means that there's a great variety of resources here. Sure, there's stores, and some of them make a lot of money. There are also gathering places, theatres (some of them pretty bleeding-edge, like etoy), workshops, and homes. This neighborhood has been here, and has grown, long before eToys ever came on the scene. Now, eToys is saying, "We want this neighborhood to become a shopping mall." And they'll tear down the whole damn neighborhood to do it.

Ultimately what these companies want is not a bazaar, not a whole new world, not a new medium of communication; but a virtual suburb. Where everything is clean (or else), there are no angry people, no controversial opinions or expressions, and everyone is free, so long as what they want to do is make money. A virtual suburb that is safe for sheltered suburban children raised in good Mayburyish homes, where they can learn that Internet is safe, inoffensive, secure, protected. A virtual suburb where you don't find anything that might even vaguely disturb you. Where the music is soothing, the pictures are pretty, and you can make your dreams come true by entering your credit card number and expiration date. Don't worry, that information, along with all your other information, won't be handed off to anyone who might hurt you (just to other people who want to sell to you).

There's just one problem. Even if they get their way, it's all pure bullshit. Internet is not secure, will never be secure. Real life is full of controversey, different ideas, and shocking truths. If they get shoved off of Internet, they'll just move to another network, albeit perhaps a more exclusive one (think back to the BBS days). Moreover, the information you hand out is not safe. The difference is, today, if it's not safe, you'll find out quickly. Tomorrow, if it's not safe, you may never find out. Not unless you're on one of those BBS'es. Or unless it's already too late.

It doesn't have to turn out this way. We can win this fight. We're smart enough; together, we're rich enough; and we have enough to lose to keep us motivated in this fight.

As a note, I noticed today that eToys stock is at a 52-week low. Maybe it's time eToys figured out a new strategy?