On Reading Civil Complaint No. 11-2472, Tasini v. AOL Inc. et al.
A week ago the labor writer and activist Jonathan Tasini filed a $105-million lawsuit in United States District Court, in New York’s Southern District, against HuffPost’s new owner AOL Inc., and HuffPost co-founders Arianna Huffington and Kenneth Lerer, seeking to “vindicate the fundamental principle that creators of value deserve to be compensated.”
The Creators of Value in this case are the “carefully-vetted” unpaid bloggers of The Huffington Post—that is, some 9,000 writers, including Tasini himself, although these people aren’t called “bloggers” in the document but rather “content providers.”
That HuffPost specifically “selected” or “sought” well-known people or so-called experts to blog on its platform for free is at the very crux of the complaint; “select” is a popular verb used throughout. The authors—two attorneys—separate those websites that use unsolicited unpaid work from those that “select” or “recruit” unpaid content providers based on a perceived marketplace value and an ability to drive web traffic to their sites, thus increasing exposure for the publication and boosting advertising dollars for the property and its owners.
In making this distinction, the complaint focuses on The Huffington Post squarely, because HuffPost has sought, since its inception in 2005, to fill its stable of “content providers” with unpaid experts (and celebrities, it might be added) as a means to drive revenue-generating traffic to its now very popular site, so says the Plaintiff.
Tasini’s own blog, Working Life, which focuses on economic and labor issues, is immune from this charge, according to the complaint, because until 2010 Tasini did not “select” contributors but rather allowed the general public to contribute “without regard for the ability to realize revenue.” (In non-legalese, Tasini makes a little moolah himself from Working Life.)
Tasini wasn’t compensated for the 216 articles he—a writer hand-picked by Arianna Huffington herself to contribute to the site—posted to The Huffington Post, between December 2005 and February 2011, when AOL bought HuffPost for $315 million and Tasini ended his five-year affiliation with the online publication, and soon after filed his lawsuit.
But why now? Why didn’t he launch this complaint earlier, before AOL moved to acquire HuffPost? Or why didn’t he just stop posting altogether in protest? These are some of the early criticisms of the lawsuit. Surely other so-called content providers, recognizing the inequity of their arrangement, have quit HuffPost for the reasons stated in the complaint, or never joined. But Tasini has stated in interviews that HuffPost content providers believed eventually “there would be money forthcoming.” If his class-action suit succeeds, they might be in line for thousands of dollars apiece.
Tasini has sued media companies before. When he was president of the National Writers Union, he famously took The New York Times et al.to the Supreme Court on behalf of freelancers whose print-only articles were then being added without payment into electronic databases in violation of copyright—a case he won.
In addition, AOL has been sued before for using unpaid content providers. Back in 1999, when the company was still known as America Online, but before AOL became Aol, a group of so-called Community Leaders sued America Online, but the circumstances were significantly different. The plaintiffs claimed their “volunteer” work had been directed and regulated by AOL and, under terms of service, they were not volunteers or independent contractors—as freelance writers are—but employees with all the workplace rights of employees. The suit never got to trial, according to the Columbia Journalism Review, and AOL eventually settled out of court with the plaintiffs (ten years later). In comparison, the Tasini complaint doesn’t claim that HuffPost bloggers are HuffPost employees and makes no reference to violations of national labor law. That 1999 AOL suit claimed that AOL’s practices then were in violation of the Federal Fair Labor Standards Act.
But to date none of HuffPost’s 9,000 bloggers have received payment for their “high quality, engaging” content, so says the complaint. Among these mostly “quasi-professional” writers—meaning those whose primary income comes from non-writing work—almost half are “published authors,” according to the suit. But unless further evidence comes out at trial—if there is a trial—it appears that these “content providers” were not under contract. And once they were given their HuffPost blogger credentials, they weren’t asked what they planned to write about or when they planned to publish. The Huffington Post simply gave its unpaid content providers a password and a platform and allowed them to fire away, it seems, under the pretense that the sheer enjoyment and prestige of expressing oneself on HuffingtonPost.com was payment enough. Content providers also received invaluable “exposure” that might—and sometimes did—lead to paid writing/speaking/tv appearance etc. opportunities elsewhere. Huffington has said that no contracts were broken; consenting adults of their own volition can decide whether they want to publish or not publish on HuffPost.
So-called exposure is another focus of this complaint. While HuffPost claims its bloggers receive substantial benefit from the publicity of posting to its popular website, Tasini’s suit claims the reality is precisely the opposite: that it is HuffPost that gains from the “exposure” generated by the “high-quality content” provided by its well-known and talented unpaid content providers; that the resultant web traffic creates “substantial” ad revenue for the for-profit company.
It was this unpaid-for content that in fact made HuffPost an attractive property to AOL Inc., so says the complaint, and though HuffPost employs a writing staff, its unpaid content providers are the ones who created the most popular part of the site: the Blog section. In addition, the complaint states, HuffPost encouraged its content providers to drive traffic to HuffingtonPost.com by promoting their own work on social networks, by using personal Facebook, Twitter, and email accounts etc., to attract as large an audience as possible to the HuffPost blog platform.
Tasini says that he did as asked for his HuffPost pieces, e.g. he reposted for his 4,000 Facebook “friends”—in no small irony—articles titled “A Worldwide Revolt Against Poverty Wages” and “The State of Labor – Now Take to the Streets”, among many others. But he doesn’t know how much traffic he actually brought to the site, nor how much revenue he raised for HuffPost by reposting or tweeting or emailing his stories to his “friends” and friends. The reason, according to the suit, is that HuffPost doesn’t release these figures and it claims that it doesn’t track such statistics for its content.
Tasini et al. charge that The Huffington Post does in fact track this information and “hides” page views from its “content providers” and this constitutes a deceptive business practice. Further, citing published reports, the complaint states that almost half of HuffPost’s visitors view only a single page, and this could likely be because users are being directed to the site by external links peppered around the web by the very content providers who are writing those posts for free.
So to summarize: The Huffington Post got a lot of famous or semi-famous people—some of them authors and journalists, i.e. professional and “quasi-professional” writers—to write posts for free, publicize for free those HuffPost articles they’d written for free, and implore their “friends” and friends and “followers” to read those articles, while HuffPost counted the advertising dollars as they rolled in, simply by providing a platform on which all of this free labor might occur. Hmm. Regardless of its intentions, or a person’s political leanings or views on labor history, one must concede that The Huffington Post created a clever little so-called business model. It’s really quite fantastic. And it is also very likely legal, so says The Columbia Journalism Review. But the same article poses a question: is it right?
This issue of fairness is a theme running through the “Factual Allegations” section of the complaint and, really, the entire document. It quotes from Arianna Huffington’s book Third World America and accuses her, in effect, of saying one thing and doing the opposite—naturally, right and legal not being the same concept. But the complaint states that HuffPost “marketed” itself as a forum of news and ideas—a new “progressive” venture—in order to lure well-known content providers to write for the site for free but all along the company “intended to realize substantial revenues from the free content provided.” And this constitutes a deceptive business practice, according to the complaint. Therefore: a lawsuit was born.
Now whether or not this lawsuit has merit is, as they say on television, something for the courts to decide. Most lawyerly analysis puts its chances for legal success somewhere between dubious and slim. But the complaint also asks the court to address the following: in a digital age, should profitable media sites “be required to compensate the creators of valuable content from which sites derive substantial revenues” and, if so, how should they be compensated? (My emphases.)
The court might never answer these questions but they are worth exploring anyway, it seems, and not in the typical to and fro of web chatter, nor on cable news shows, nor by posting links to Facebook or by tweeting, although this is all fine. Real-world, old-fashioned action might be better. Tasini’s motivations are his own, but his Civil Complaint No. 11-2472 reads more like manifesto than legal objection, more call to action than viable class-action lawsuit.
The most egregious effect of the HuffPost business model, according to the complaint, is that it broadly and artificially sets a “low price for valuable digital content.” It also has a “serious depressing effect on the value of intellectual content” as well as inhibits the ability of content providers to “support themselves as creators of high quality, engaging, digital content.” The complaint also describes the leaked AOL Way document and AOL’s move toward a content farm-like model. It quotes from an equity research report that AOL expects in the next twelve months that HuffPost will realize operating margins of 30%—a percentage almost unimaginable back before the quality of journalism began its long downward trajectory.
This revenue-versus-quality part seems very familiar. There is nothing wrong with earning money, of course, but remove references to “content providers” and “page views” and “Arianna” and “Tasini” and so forth and these events could almost be a case-study template for corporate-labor relations in the United States over the past few decades. Company A is attracted to Company B because Company B has figured out a way to pay its valuable creators less, in a way that Company A cannot, so Company A attempts to acquire Company B and a lucrative deal is struck. Some of those creators of value get to keep their jobs, others must go create value elsewhere, all perfectly legal, the bottom line is boosted, and that’s the end of the story. To which most American value-creators might reply, Well, that’s capitalism for you, bub, what did you expect? Or they might use that old standby: it is what it is. This might all be true. But right? Or does right even matter?
*** I was asked or “selected” but not paid to write this piece. To my knowledge The Rumpus is hardly profitable. (If The Rumpus is one day acquired by a giant media conglomerate, I’d prefer stock.) To my knowledge The Rumpus doesn’t derive “substantial” revenue from its content, nor from anything else. I also doubt that they refer to the writing on The Rumpus as “content.” “Value” has a number of meanings. As for editorial value, well, that’s not for me to decide.