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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. 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?
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.
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.