Tuesday, April 19, 2011

That HuffPo Class Action Suit

Former Huffington Post blogger Jonathon Tasini has filed a class action lawsuit against HuffPo and AOL. His claim is that HuffPo has been unjustly enriched by luring bloggers to contribute in exchange for exposure (rather than paychecks) and then selling the website to AOL for $315 million dollars.

My areas of legal expertise are not class action suits, but many commentators seem to think this case is a slam-dunk loser. Although, it should be noted that those providing such conclusions have rarely provided much in the way of legal analyses beyond iterating some sort of trusty argumentum ad gastrum that this lawsuit is dumb. Thus, these analyses don't deserve to be linked to.

One of the more compelling legal arguments I've read was from this guy, who noted that class action suits are proper only when all members of the class "are governed by the same rules." And so unfortunately for the HuffPo bloggers, nationwide unjust enrichment class actions "typically don't go anywhere, because unjust enrichment laws from state-to-state simply vary too much"- meaning the class action status (and claim for $105 million) would be denied.

Okay, I'll buy that.

I also think it's worth drawing attention to Tasini's over-the-top-ness in reference to this suit. He recently claimed:

“'In this case, blogger-creators are slaves on Arianna [Huffington's] plantation -- one that she built on the backs of thousands of creators,' Tasini told FoxNews.com in an email. 'She marched away with her loot, and her Marie Antoinette response to polite requests that she share a portion of the value created by thousands of workers was, essentially, “screw you.”'

Even though I can't say for certain how this case will turn out, I am 99.9% confident in predicting one spoiler that discovery is bound to reveal: Huffpo bloggers weren't really slaves!

As a blogger-for-free myself, I am sympathetic to the plight of these bloggers. Yep, it certainly feels icky that HuffPo made a lot of money at least in part off of content its bloggers provided without providing the bloggers monetary compensation.

Yet, at the same time, the bloggers knew going in that they were not going to get paid in anything other than potential page views for their contributions. I remember receiving several email invites myself to become a HuffPo blogger, invites that I ultimately ignored because I didn't have an interest in contributing to a commercial website for free.

In fact, when I was somewhat new to blogging, I would regularly be asked to write guest posts or become a contributor to other (oftentimes commercial) blogs. At first, I was flattered. People liked me, they really really liked me! And so I did.

What I gradually came to realize was that emails from random people asking "will you write a guest post?" really often meant "I don't read your blog much but will you provide free labor to help my blog become more popular?" or "why don't you provide content for me to make money off of?"

*Farting noise*

I can and do write guest posts in collaboration with non-commercial, progressive bloggers who I have pre-existing bloggy relationships with. But, I think it's a good idea for bloggers to be aware of how they feel about other people making money off of their content who don't fork over a fair share of the profits. In general, if I know and trust a siteowner and blog community, I am okay (and honored) to guest post in exchange for wider exposure. If the request is a form email that feels like the blogging-equivalent of a Nigerian Prince scam, not so much.

This is internet. Many laws have not kept pace with the ever-evolving ways people are communicating now. At the same time, people and companies are going to exploit the gray areas, try to leach money from other people's talent, and/or take advantage of many writers' desire Get Discovered at a Hot Blog. I mean, my blog isn't even Big Time, but on a near-daily basis I receive emails asking if I'll put advertisements on my blog, to use and review random products (including dresses, make-up, and sex toys), or to provide links to commercial websites.

See what I spare ya'll from!

But seriously, I have consciously kept this space commercial-free because (a) many of us are bombarded enough with various forms of advertising and (b) I can write whatever I want without worrying about offending advertisers' delicate anti-feminist-anti-progressive sensibilities.

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