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There’s been plenty of discussion of Jonathan Tasini’s recent lawsuit against The Huffington Post and AOL (NYSE: AOL), much of it critical.…

Jonathan Tasini
photo: Wikimedia / Thomas Good

There’s been plenty of discussion of Jonathan Tasini’s recent lawsuit against The Huffington Post and AOL (NYSE: AOL), much of it critical. When Arianna Huffington replied late yesterday, saying that the suit was nonsense and that the vast majority of HuffPo’s bloggers “are thrilled to contribute,” she had no shortage of sympathetic essays to link to. And there’s good reason for the criticism-Tasini not only agreed to HuffPo’s terms, but went on to write for publication for over five years. So what was Tasini thinking in filing his lawsuit? I caught up with him today to find out why he wrote for HuffPo in the first place, why he waited so long to sue, and whether he believes that his legal argument applies to other “user-generated” sites Facebook and YouTube (NSDQ: GOOG). Excerpts of our interview follow.

paidContent: You knew going in to this arrangement that you wouldn’t get paid. So why is there now a legal dispute?

The whole legal theory is clear. For unjust enrichment it’s almost irrelevant what agreement was done up front. Unjust enrichment is irrelevant to whether I blog for free or not.

But then, why blog for HuffPo for several years? Why did you wait more than five years to file this suit?

On a moral basis, there’s no question there’s unjust enrichment. People were misled about the nature of The Huffington Post. A lot of people were shocked by the notion that once sold, everything we wrote was [owned by HuffPo]. Essentially what we’re doing is saying, look, you should share that wealth [that came from the sale].

Did you ever just ask HuffPo to pay you?

Nope.

Why not?

People believed that at some point there would be money forthcoming. They believed that once this was a profit-making venture, people would get paid. More and more people are coming forward with examples-they believe promises were made to them.

From a legal point of view, it’s not important-for what we’re arguing-whether people agreed to write for free or not. I will say this-we do want to set up a system going forward that does set a standard [for when writers should get paid].

So when you started writing for HuffPo, and you weren’t getting paid, why did you do it?

In part, I was running for U.S. Senate at the time, against Hillary Clinton. She [Arianna Huffington] disliked Hillary Clinton, or at least said that, and she said, ‘You should blog here and promote the campaign that way.’ That was the reason I started there.

What about other sites, like Facebook or YouTube, where the value of the business has been enhanced by content contributed by users? If you were successful, wouldn’t this open a kind of Pandora’s box where every site could be asked to make payouts to its users?

We should separate places like a social-networking site from a commercial site that’s about creating content. Facebook is not the same thing in my mind as The Huffington Post. We’re mixing apples and oranges. You referred to this as a Pandora’s box. I would consider this economic justice.

Publishers think they should make all the money, and it’s fine for them to exploit people. When I began as a writer in the early ’80s, this was how people thought. This chatter going on now about the lawsuit is no different from the stuff I used to hear. Writers and other creators, they absorb the crap put out by Arianna Huffington-that you should just be happy to have your material seen and published. I don’t think that’s a good economic argument, and I don’t think it’s good for society. Having a vibrant creator class is good for society.

But you knew going into this what the deal was. And so did other HuffPo bloggers. Some of them are testifying to that now, going out of their way to say they were happy with how they were treated.

Did those bloggers know that The Huffington Post was going to get sold for $315 million?

The whole notion that there would be this “promotion” was questionable. Also in general there was a deception-and I’m being very careful about how I say this-there was a deception about what the ultimate purpose of this site was. What would be the disposition of it, who would benefit from that, and what the profits would be.

About the “deception” claim-you say in the lawsuit you weren’t able to get page-view records. But the HuffPo Bloggers’ Index pretty clearly marks page views.

Honestly, I think you should ask the lawyers how they drafted it, why they framed it that way.

Did you know how many views you were getting when you blogged?

I knew how many people were commenting, but I don’t believe I knew how many page views I was getting.

Most of the public discussion of your lawsuit seems pretty negative. Is that your sense of it? How do you feel about the response to lawsuit?

I disagree. I think there’s a lot of support out there. I keep getting emails from a whole variety of writers who want to join on as plaintiffs, who are giving us all sorts of inside information. There still is a lot of fear out there. Some of the people expressing opposition to what we’re doing are just bootlickers.

I think people fear being blacklisted-which I was when I sued The New York Times. And I understand that fear.

What do you think your chances are?

I think I was honest in my post [responding to Arianna Huffington]. I don’t know if we’re going to win the legal argument. It’s a novel claim, using some creative thinking by a couple smart young lawyers. You never know how a court is going to rule. When I filed in 1993, people thought we were crazy. It was considered a first-impression case. I think this case is a similar situation. We, in fact, did win.

Ms. Huffington has made, I think, a blunder. Her arrogance and her clear bile, partly towards me but towards all the people who created the content–that’s working against her. People would have been very reasonable and it would have bought her a lot of good will if she had said, I just got fabulously rich-again-let’s sit down and figure out how I help the people who made this a valuable company. Instead she said, screw you. It’s a totally Marie Antoinette approach.

  1. This is really lame. Think of all the commercial websites that have some sort of community as a part of what they do. Only a fool would post there expecting to get paid somewhere down the line. If this lawsuit were to somehow be successful, the internet would be crippled by lawsuits.

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    1. It’s important to be clear on the difference between making comments, such as this one, on a website, and creating original content, such as Tasini’s blog posts, on a commercial website such as HuffPo. The two things are not the same. Nobody, including Tasini, is arguing that commenters should be compensated.

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  2. Oh, so to paraphrase, he wants to cash in even though he had no ownership stake in the business or any arrangement in place that would actually pay him. To accomplish this he went and found “a couple smart young lawyers” to rationalize these spurious claims (sorry, “novel claim” + “creative thinking”). For a substantial cut of any winnings/settlement, no doubt. Sounds fair.

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  3. Judging from other media reviews of this lawsuit they portrayed him to be an absolute mad man. I think he’s right when he says those who are defending Huff Post’s model are Bootlickers.

    I can’t imagine how frustrating it must be to be a journalist that doesn’t kiss ass these days. But apparently according to him back in the day it was even harder.

    He seems like a rational, sane and very calculative man. Personally I think he can win if the Lawyers don’t completely give in to their youthful optimism.

    Perhaps now instead of ambulance chasers we will now see more interest in labor law when it comes to freelancers getting paid adequately.

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  4. There are two different issues here.

    First, I agree wholeheartedly that Arianna Huffington had several choices and she chose one that exclusively benefited her. My last submission as a Huffington Post blogger (which wasn’t published) said as much: http://www.comradity.com/comradity/2011/02/an-open-letter-to-arianna-and-tim.html

    Second, I know nothing about the legal precedence for this claim of “unjust enrichment.” If I were a publisher of “Paid Content” I think delving into this would be good assignment for a writer and would attract a lot of readership, (i.e., worth paying someone for).

    Just saying.

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  5. From a labor standpoint, I salute Tasini for taking on this case. US laws are very specific on most labor issues. For instance, an unpaid internship at a for-profit company falls under drastically different rules than volunteering for a non-profit organization. So you may walk into a food bank and volunteer without the food bank having to justify its relationship with you, but you couldn’t volunteer for Kraft Foods under the headline of it helping build up your resume. I have volunteered at food banks and hired [paid] interns. In both cases, THANK YOU goes a long way. Huffington comparing her volunteer workforce to individuals appearing on TV to promote themselves, doesn’t even pass the sniff test.

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  6. If one goes to the HuffPo website and acts as a contributor in the comments section, one’s “work” is monitored and categorized with badges and labels such as “moderator”, superuser” and “networker”; thus quanitifying and qualifying the work contributed. Why not pay for the contribution?

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  7. Regardless of this specific case, I wonder how much due diligence AOL did before purchasing HuffPo? It seems like the site could have several legal problems. There was the article in Vanity Fair a couple of months ago, and they always have copyright issues regarding how the aggregate and link, and now this. It just seems like if someone was really determined to get a slice of pie, they could tie it up in court and be able to settle for a decent amount.

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  8. These claims have no chance of winning.

    And they shouldn’t. The terms for blogging were made clear. That he wants people to believe that he had no idea that the content was helping build economic value in the enterprise and that he had some vague unagreed upon, but legaly enforceable expectation that when the company turned a profit, HuffPo would simply turn around and share in the proceeds — is a complete joke. He clearly had his own agenda and incentives for wiritng the blog. Among other things I’m sure that it pumped up his ego to have an outlet to publish his musings. To pretend years later that he was duped and victimized lacks credibility. I’m not saying that content creators shouldn’t be compensated for their work or that someone else can simply use it without the author’s authorization. But if he wants to get paid, he needs to sell it to an outlet that is willing to pay him for it. You can’t do what he did, which is to agree to give it away for free, reap the non-economic benefit of having your name and work published and then claim that you were ripped off. That is total b.s.

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