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Summary:

Jonathan Tasini’s name will always have a place in the history of media law because of his role in one of the most famous digital-age media…

Jonathan Tasini
photo: Wikimedia / Thomas Good

Jonathan Tasini’s name will always have a place in the history of media law because of his role in one of the most famous digital-age media lawsuits, Tasini v. New York Times. Now it looks like Tasini’s going for a second entry in the history books. Today, Tasini became the lead plaintiff in a proposed class-action suit against The Huffington Post and parent company AOL (NYSE: AOL), arguing that HuffPo’s habit of filling its pages with content from upaid bloggers is actually illegal and seeking $105 million in damages.

HuffPo has a paid newsroom staff of about 150, but the issue of the thousands of unpaid bloggers keeps coming up in public forums. Ariana Huffington has often said-and said again at pC2011-that exposure is the great reward for these unpaid bloggers.

But in his lawsuit, Tasini says that the content of unpaid bloggers on HuffPo is worth at least $105 million, and that the publication should be forced to pay that amount to them. The lawsuit goes on to say that HuffPo’s activity has actually hurt the whole market for online writers, “having a serious depressing effect on the value of intellectual content being created” by Tasini and other class members, which has hurt their ability “to support themselves as creators of high quality, engaging, digital content.”

The Huffington Post continues to assert that “it, alone, should be enriched by the valuable content” provided by Tasini and other bloggers — and that goes against the founders’ intent in writing the copyright clause of the constitution, according to the lawsuit. But Huffington Post doesn’t take exclusive rights to the content provided by unpaid bloggers, so Tasini still could have pursued other methods of making money off his content. Tasini wrote 216 articles for HuffPo between 2005 and 2011, which are all listed in the complaint.

Speaking of copyright, it’s worth noting that there’s no actual copyright claim in this lawsuit (embedded below). Rather, Tasini claims that AOL and HuffPo violated New York state laws on deceptive marketing laws. Tasini and his lawyers argue that HuffPo acted deceptively by not sharing how many page views their content got, and by “presenting themselves as a free forum for ideas while actually building a product with substantial value.”

HuffPo spokesman Mario Ruiz responded to the filing by email:

“The lawsuit is without merit. As we’ve said before, our bloggers use our platform – as well as other unpaid group blogs across the web — to connect and help their work be seen by as many people as possible. It’s the same reason hundreds of people go on TV shows to promote their views and ideas. HuffPost bloggers can cross-post their work on other sites, including their own. Aside from our group blog, to which thousands of people from around the world contribute, we operate a journalistic enterprise with hundreds of staff editors, writers, and reporters, all of whom have commensurate responsibilities — and all of whom are paid.”

Tasini’s suit against The New York Times became one of the most important digital-age copyright cases, but there are big differences between that lawsuit and this one. First and most obviously, Tasini sued the newspaper on behalf of paid freelancers. He argued that freelance writers need to get paid again when the NYT puts their work into databases like LexisNexis. That argument was successful in an appeals court, although it had the somewhat perverse effect of causing some newspapers to simply remove freelance content from those databases.

But Tasini’s argument here is wholly different. He has no copyright claim, and is instead arguing that HuffPo violated New York state laws on deceptive business practices. The proposed class in the HuffPo suit composed of thousands of bloggers and if the lawsuit were to be successful, it’s hard to see how it wouldn’t open up a Pandora’s box where other sites that rely on unpaid contributors to create value would be subject to litigation.

Facebook is perhaps the most famous of many web businesses that have created huge advertising value out of the free contributions of millions of contributors. Is it deceiving them? It seems like in this case Tasini’s lawyers will be hard pressed to show that he didn’t know what the deal was for HuffPo bloggers before he started writing for them.

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  1. @steveplunkett Tuesday, April 12, 2011

    As long as there are people willing to write for free and they have talent, it’s their decision if they want to get paid or not. Don’t WORK FOR FREE!

  2. Katherine Lewis Tuesday, April 12, 2011

    The analogy of HuffPost to FB is right on. I’ve long thought of HuffPost as more of a social network than a journalism organization — a place where anyone can post a press release or op-ed or product announcement in hopes of publicity. No matter that HuffPost is NOW hiring journalists too beef up that part of its identity, the site’s history cannot be denied.

  3. I would love to see what half-ass reputation HuffPo would have without its freelance contributions over time. I highly doubt it would have been a $305 million cashout, nor would Huffpo have half its reputation today without all those contributions.

    Is it worthy of a lawsuit? Perhaps not, but then again HuffPo is now sullied by AOL and its relevance is dissipating as we speak. You could have done something cool with your contributors Ariana after such a huge winfall and shown some class, but you show your true colors and demonstrate that you are undeserving of not only all the contributions but also any reverence your readers may have had. Glad I never paid much attention to you, makes me look wise at this point. Adios punk.

    1. Staci D. Kramer Ric Tuesday, April 12, 2011

      The sale was $315 million and Arianna Huffington got a percentage (25
      percent of her payout was in AOL stock).

  4. A few thoughts.

    If the bloggers were okay with working for free, they should have at least asked/negotiated some share of possible future profits.

    Huffington, as a supposed leftist, should also have created some sharing model for the content creators. It’s not that difficult and other websites/businesses do it. It’s her ethical/moral obligation even if the bloggers were silly not to deman/negotiate it.

    Tasini’s role in this is downright odd.If anyone should have known how to negotiate for writer’s rights, it’s him. WTF was he thinking?

    The conspiracy theorist in me thinks he was just biding his time, waiting for the opportunity to launch a class action suit.

    Now, I think I’ll go read about the legal definition of unjust enrichment.

  5. Ariana Huffington one of the worlds most progressive democrats does not want to share the wealth with her supporters, I just can not beleive this!! In true progressive fashion what is good for the goose is not good for the Ariana.

  6. Unfortunately, Huffington Post is not the only villain. There are so many media outlets providing people with opportunities to upload their own content. These “bloggers” are used for free content and receive very little notoriety amidst the mass of user-supported content. However, this suit is a desperate attempt to save the profession of journalism in the era of the ‘citizen journalist’. I am a graduate student in J school, and we struggle with this idea all the time. How can we expect to get paid for doing what others will do for free? It is up to journalists to show our value, and we must maintain the merits of our profession by not giving away our content. Let bloggers blog. We know the value of journalism and will be paid accordingly once these current standards of media-borrowing fail.

  7. Prattle On, Boyo Wednesday, May 25, 2011

    deleted by POB

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