21 Comments

Summary:

Web 2.0 has grown up and is calling in the lawyers. A blogger for The Huffington Post has launched a class-action arguing that writers — who agreed to provide content without pay — should get a share of the $315 million it got from AOL.

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When AOL bought The Huffington Post for $315 million, some saw it as a validation of the Web 2.0 model of new media: aggregation, curation and providing a platform for bloggers, many of whom donated their services in return for the attention of readers. Others, however, seem to feel that founder Arianna Huffington owes those unpaid writers something for her success, and now one blogger has put that idea to the test with a class-action lawsuit that claims The Huffington Post is guilty of “unjust enrichment” for profiting from the labor of others. Web 2.0 has grown up, it seems, and decided to call in the lawyers.

The blogger behind the lawsuit, Jonathan Tasini, is no stranger to this kind of legal battle. He was also involved in a landmark suit against the New York Times a decade ago, in which a group of freelance writers argued publishers were using their work illegally by distributing it online and through various electronic services. The argument in that case was that writers had been paid freelance rates, but they had only given up their rights for print publication, not electronic publication. The case was settled for $18 million in 2001.

Tasini also happens to be a union leader, and he is dragging out every piece of classic union lingo he can muster in defence of his class-action claim (which is embedded below). “In my view, the Huffington Post’s bloggers have essentially been turned into modern-day slaves on Arianna Huffington’s plantation,” he told Forbes magazine. Tasini vowed to picket the founder’s home and make her life “a living hell,” and said that “anybody blogging for the Huffington Post now is a scab” and a “strike breaker.”

Tasini — who wrote sporadically for Huffington Post for the past several years, knowing he wouldn’t be compensated — isn’t the only one to pull out the strike talk. The Newspaper Guild endorsed the idea of a strike against the site shortly after it was acquired by AOL, saying “working for free does not benefit workers and undermines quality journalism,” and that writers were being asked to “honor this electronic picket line.”

Arianna Huffington by World Economic Forum

Tasini admits that his lawsuit isn’t about The Huffington Post breaching any contract with writers, since the freelance writers and bloggers who worked for the site didn’t have a contract, and most apparently understood they would never be compensated other than in pageviews. But he argues the huge sums that the company made by selling itself to AOL justify paying writers something anyway — as much as $100 million. In effect, he and others are saying The Huffington Post may not have a legal duty to pay them, but there is some kind of moral obligation to do so.

This argument has come up in virtually every case where a “Web 2.0″ company has been acquired for large sums of money. YouTube was criticized by some for not paying those who created and uploaded videos after it was bought by Google for $1.6 billion in 2006, and Flickr was also the subject of similar criticism from some users after Yahoo bought it for $35 million in 2005. The only reason sites such as Wikipedia aren’t hit with similar criticisms, apparently, is that they don’t actually make any money and therefore they can’t pay anyone anything.

Is there any real merit to Tasini’s claim? Not really, as Jack Shafer at Slate and others have pointed out. The reality is that many people donate their services on the web and they are compensated in all kinds of non-monetary ways. But in every case, they do so knowing there will be no direct compensation from the site they are using.

Tasini made the same deal when he agreed to write for The Huffington Post. Why did he do so? He hasn’t said, but presumably for the same reason others did — in order to gain visibility, and because writing for the site was easier or more productive than writing posts for his own blog (where he tries to defend his claim).

Did Arianna Huffington build hundreds of millions of dollars in value in part based on the work of others? Yes, and those freelancers and bloggers volunteered to do this. Not only that, but Huffington has been actively pushing AOL to hire more professional journalists and use freelancers less since she took over as the head of AOL’s content operations, something Tasini and the various writers’ unions should theoretically support, since it means full-time jobs and benefits. She said recently she plans to hire as many as 800 journalists to man the local bureaus AOL has been opening as part of its Patch.com hyper-local media operation.

Those are far larger numbers of writers and journalists than any other traditional or new media outlet has been hiring lately. In other words, Huffington may be the best friend that online writers have right now, whether they like it or not.

Post and thumbnail photos courtesy of Flickr user Corey Balazowich

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  1. While I hardly think Tasini is an ideal spokesperson for this suit, I absolutely, 100% am behind it, and I’m shocked that any journalist isn’t.

    The “800 journalists” Arianna Legree wants to hire will be content-farm paid, if that. Odds are, they will make the same slave wages in rev share as Examiner “freelancers” do.

    The rapid devaluation of freelance writing over the past five years is staggering. Much of it has been due to the “free for notoriety” and content farm gigs, but at least with HuffPo, writers felt like it was a give-and-take: They gave HuffPo free labor to keep a fledgling new media site going, and in turn, got the pageviews HuffPo was serving up. The idea that it would be sold, and for such a large amount of money, didn’t enter into the mindset. Call it false pretenses, or whatever, but when you make money on the backs of your workers’ free labor, when you benefit, the classy and ethical thing to do is to pay them back for that assistance, not pocket the change and keep right on going.

    Shoot, when Blogger was acquired by Google, those of us who’d given money for premium services (and to help keep the site going) got sweatshirts for our trouble and support. And oh wait… who used Blogger back in the day? None other than Arianna herself: http://www.bizjournals.com/sanfrancisco/stories/2003/02/17/daily2.html

    A gesture of good will would have gone a long way here, instead of continuing to send the message that content has no value. The number of freelancers who have left writing because they can no longer make a living wage is staggering. Most of the writers I’ve worked with have moved into other sectors. And even I left the constant stress of finding living-wage freelance work to take a full-time position. If this continues, we’ll soon find the web filled with poorly-written, amateur garbage instead of thoughtful analysis and quality news reporting. You get what you pay for.

    1. Thanks for the comment, Cyndy — I’m a fan of quality writing and professional journalism too, and I want them to succeed wherever possible. But in terms of false pretenses, blogging for free and then claiming later that you deserve to be paid isn’t really ethical either. I like your idea of getting sweatshirts though :-)

    2. Strangely, even I don’t see the merit (on the surface, at least) of this lawsuit. The deal was the deal, even though it was a bad one.

      What I don’t get is why once HuffPo started to take off, contributors concerned about getting paid didn’t unite and demand a piece of the pie then. You gotta be willing to walk if she doesn’t fork over, but you walk away with your pride. Someone has to kickstart the better-pay-for-freelancers revolution.

      1. To be honest, I’d want to see what kind of contract was in place between HuffPo and their freelancers. If the whole thing was done with a handshake and a smile, then what? As a previous commenter said, some of that content consisted of reprints with writers holding the copyrights HuffPo didn’t own the rights to the content, which was then sold to AOL. Still think there’s no basis for a suit? You know how tricky contract transference to a third party can be, Derrick. :)

        @Mathew, at the VERY least, I think Arianna should give HER sweatshirt back to Google. She had to have gotten hers when I got mine.

  2. Francine McKenna Wednesday, April 13, 2011

    Mathew,

    I posted 19 entries to Huff Post form March of 2009 to June of 2010. I never posted anything original there – I posted reprints form my own blog – and they never asked me to do anything “for hire” or at their request. I did it primarily as an experiment to see if I could enlarge my audience to general business or political news consumers.

    I knew I would not be paid and I never requested pay. They never offered. In fact, typically when I write for hire, the purchaser of the content tries to extract some types of rights to the content, for a length of time, for a number of platforms, in general and, often, in perpetuity. The Huffington Post FAQ clearly says that bloggers retain all rights to their content. That’s your first clue.

    If I am not giving up anything, I do not get anything in return. I used the Huffington Post as a distribution channel and my experience was generally negative. It got worse during 2010. First there was some kind of platform or technical change and, as a result of their full-feed RSS settings, every time I posted I ended up with tons of spam back at my own site. Scraper sites would take the whole post almost immediately – my posts have lots of links back to my other posts – and put it on their sites to generate google ad revenue. Sometimes they would do so with no links retained. The only way I knew that was happening is because my content is focused and somewhat unique. My Google Alerts would signal someone was writing about a Big 4 audit firm that was not familiar to me. I’d look at the post and it was mine from Huffington Post, stripped of all identification and links.

    Then, starting in the spring of 2010, I started having trouble getting my posts published at all on a timely basis. Huffington Post employs a limited number of “editors” to double check there is nothing egregious in the posts. (Only once did I get a semi-editorial suggestion to make it shorter with less lengthy excerpts.) This screening process got bogged down and I had to complain twice to get posts published. I often wanted to put time sensitive posts there, such as when the decision came down from the US Supreme Court on the PCAOB – the audit regulator. I submitted a post in anticipation of the decision and asked in a separate email for it to be posted on a particular day a few days hence. It was ignored, never posted, but one by Cindy Fornelli, the Director of the CAQ, the audit industry lobbying organization, was published on the day of the decision.

    Once I heard about the sale to AOL. I decided to discontinue my posting for good. I have not posted anything since June 2010. I had some discussions with a business editor there after I twittered that sentiment. He encouraged me to continue of it met my needs, but I told him I honestly didn’t see how it could. I had a paying gig at Forbes now and did not want to spread myself or my brand too thin. I also am uncomfortable about the lack of communication about the sale to AOL to this with a blogging ID and the lack of any information about the fate of our content or our place in the universe.

    The suit will be decided on the basis of law. These kinds of things are tricky and the rules in the US vary state by state. What’s fair or reasonable may not matter if it’s allowed under law or we find out that in some states it’s not.

    In any case, I asked yesterday to have my posts deleted – I own them – and to have my profile deleted also. I have not yet heard back from anyone at AOL/HuffingtonPost HQ.

  3. So…. Are these bloggers pink? They thought that they are red but they are really not?

  4. While there is definitely no legal obligation to pay out, selling to AOL for a stratospheric dollar value pretty much goes directly against what that the Huffington Post was about.

    I would feel pretty gutted if it had happened to me, but not coming from America I probably wouldn’t have reached for a lawyer.

    Honestly, this is exactly what can be expected to happen as people give up control of how their ideas are presented (HuffPo are more than happy to censor/edit out meanings etc) in search of the feeling that people are listening to them.

    1. I disagree, Simon — the deal with Huffington Post seemed pretty straightforward from the beginning: you write for us, and we will give you a share of the attention that we are able to gain by virtue of having a large platform. They kept their end of the bargain.

  5. Good article but I am always amazed by how Huffington is treated with kid gloves by other journos. She and her team take articles and content without attribution and with only some link to somewhere on the hosting site (usually the main page, not the relevant one). So there is no click-thru benefit for the content creator, there is no bye-line for the originating journo. The benefits she uses as justification for not syndicating content are specious and wrong.

    And as for Huffington’s claims to be hiring journalists, she has fired most of those who produced content at AOL, and any hiring is new graduates who work for peanuts and they are focused on content curation not creation. Spend time on sourcing a story, getting quotes, checking facts, assessing vs the law, and understanding the backstory and any potential vested interests – heck no. Instead it’s to summarize with a dose of op-ed puff and then include a link to the actual hardworking journo’s creation. Without attribution.

    I cannot see HuffPo-AOL going anywhere. And to be honest I don’t mind. If I want celeb fluff I can go to Gawker, TMZ. If I want news I go to NYT, OM, Daily Beast, Al Jazeera, BBC. HuffPo-AOL is the news industry’s equivalent of the content-free aggregation sites that Google and Bing are working so hard to get out of their search engine results. Maybe one day HuffPo-AOL will be treated the same. Actually it’s quite likely that its so-called viewership is already treating it as a ‘don’t click’ result in Google. Insufficient signal to noise.

  6. Comparing a person who employees people (voluntarily, I might add) to a slave owner is distasteful at best, insulting at worst.

    1. Completely agree, Jeff.

      1. To the fainting couches! Clutch those pearls, oh, the vapors. Such hyperbole is an affront to the calm, measured, discourse which is the standard in the bogosphere.

      2. I thought such trashy headlines was saved for techcrunch.

        Dear Om, this is a stain on your nice site.

      3. Ben, the headline is based on the language used by the person who launched the claim, which is described in the post.

  7. Should facebook users get paid? They freely built that platform’s reach.

  8. Mike from Indianapolis Indiana Thursday, April 14, 2011

    Why would anyone post original content on a site like this without compensation or some opportunity for the reader to click through to their own website?

    I wouldn’t even post this question as a comment on this site (or any other site) if I didn’t, at least, receive a link to my own website.

  9. Matthew’s (and Huffington’s) argument is that the bloggers’ posting and Huffington’s use of the posts were a mutual agreement and that both sides achieved their desires.

    But society has a set of safeguards that have been put in place over the last hundred or more years to protect people from entering into mutual agreements that society doesn’t like. The most obvious (and pertinent to this case) is the minimum wage. Even if I want to work for $3 an hour and some employer wants to pay me that, that deal is not allowed.

    Similarly society does not allow theatrical and TV productions to hire anyone they want for any wage. There are probably 100,000 people who would agree to write for the David Letterman show for free (for the exposure), but society (through the agency of unions) does not allow this.

    Huffington is now acting in the nature of an employer, and society has a legitimate interest in regulating her interactions with others.

    1. Thanks for the comment, Patrick. I have a problem with your thesis that we need to protect people from submitting their content to sites like Huffington Post for free if they wish. I’m not talking about low-paid freelancers, I’m talking about the people — like Tasini — who submitted their blog posts knowing full well they would not be paid. Why would society want to prevent people from doing that? Am I going to have to join a blogging union now?

  10. Strikes me as another whiney Winkelvoss lament. He sold himself short. No one did it to him.

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