Nobody is Getting Paid for Unpaid Blogging
Nearly one-third of the content on the Huffington Post (or HuffPo, as its users call it) comes from thousands of bloggers contribute stories without pay. So when it was announced that HuffPo would be sold to AOL for $315 million, the Internet exploded with anger and betrayal from HuffPo’s contributors and stalwart fans alike.
Many bloggers, like the Guardian’s Douglas Rushkoff, complained that Arianna Huffington sold out progressives who were only contributing to the site for free because of its liberal spirit. One of these contributors, infuriated that Ms. Huffington “built a blog-empire on the backs of thousands of citizen journalists,” started a twitter meme, #huffpuff, asking bloggers to remove their content from the new AOL/HuffPo conglomerate and boycott the site in the future. Still others, like Dan Gillmor at Mediactive, suggested that Ms. Huffington share the wealth with the unpaid bloggers who helped create it.
On April 12 it was announced that a group of bloggers were backing up their blogosphere bravado by launching a class action against HuffPo, seeking compensation for their work to the tune of $105 million dollars (one-third of the site’s sale price). News of the lawsuit launched an Internet firestorm of its own, the consensus of which is best illustrated by this quote from Hamilton Nolan’s story in Gawker:
“We’re not lawyers, but we’re fairly certain that a group of people that freely and without coercion agrees to write for free cannot simply run to court years later and ask for a hundred million dollars just because they think they deserve it for blogging so well.”
LASIS looked into the law and it looks like the media guessed this one right. Even a blind squirrel finds a nut once in a while. Here’s why.
The lead plaintiff in the lawsuit, Joseph Tasini, is no stranger to controversial class actions. Mr. Tasini was also the lead plaintiff in a copyright case filed against the New York Times that made it all the way to the Supreme Court. In 2001 the Court ruled in favor Mr. Tasini and other New York Times freelance contributors, holding that the Times could not, under federal copyright law, sell entire editions of its paper to electronic publishers without either removing articles written by freelancers or obtaining freelancers’ permission.
But Mr. Tasini’s lawsuit against HuffPo won’t be as successful. In the HuffPo complaint, Mr. Tasini pursues what even he admits is a “novel claim” – that HuffPo was “unjustly enriched” from the services of the unpaid bloggers. In so doing, Mr. Tasini departs from the successful strategy used in the New York Times case – relying on stable federal laws that are protective of independent journalists’ rights.
Mr. Tasini and his attorneys are probably relying on the unjust enrichment argument because of the serious challenges a claim based on federal law would face. Back in February, Laura Kirchner of the Columbia Journalism Review hypothesized about a potential blogger lawsuit against HuffPo, writing that such a suit would follow the model set by AOL volunteer moderators who brought a lawsuit against the company in the 1990s. These volunteers moderated chatrooms, reported offensive behavior, and organized fantasy sports games in exchange for reduced connection fees. The AOL lawsuit alleged that since the site made these “volunteers” submit timecards, schedule shifts and work minimum hours, they were more like “employees” as defined by Fair Labor Standards Act (FLSA), and were entitled to the federal minimum wage. After years of litigation, in 2009 AOL finally buckled and settled with its 2,000 “volunteers” for $15 million.
As Ms. Kirchner correctly pointed out, HuffPo’s unpaid bloggers were never given assignments, editorial support or deadlines so it is unlikely that they could qualify as “employees” under FLSA or that the new AOL/HuffPo would be willing to consider a settlement.
Mr. Tasini and HuffPo’s unpaid bloggers chose not to pursue that legal argument. Instead, they are claiming that HuffPo was unjustly enriched by their contributions. Unjust enrichment is a quasi-contractual claim. Essentially, when there is an implied agreement that one person will be compensated for his work for another, and that person remains uncompensated, courts have deemed the benefitted party unjustly enriched and awarded the worker fair payment for his labor.
Traditionally, there are three elements in an unjust enrichment claim. First, the plaintiff must have provided something of value to the defendant. Mr. Tasini argues that unpaid bloggers have provided HuffPo with millions of page views that increased the value of the site such that Ms. Huffington was able to receive an additional $105 million dollars in the sale to AOL. Even though Nate Silver’s analysis for FiveThirtyEight disputes the degree to which unpaid bloggers increased the value of HuffPo, certainly their contributions added “something of value” to the site.
Next, the defendant must have acknowledged, accepted and benefitted from what the plaintiff provided. This element simply ensures that the defendant was aware that the plaintiff was providing him a service. HuffPo accepted stories from unpaid bloggers and posted them in hopes of generating more traffic. Clearly, it was aware unpaid bloggers were providing a beneficial service.
Lastly, the plaintiff must show that it would be inequitable for the defendant to receive the plaintiff’s services without paying for it.
And here the bloggers’ claim fails.
The agreement between HuffPo and its unpaid bloggers was clear: bloggers received national exposure for their articles, not payment. Many of HuffPo’s unpaid bloggers have already admitted that this agreement was perfectly equitable. Established writers who are usually paid for their writing use HuffPo as a forum to post less commercially viable pieces. Lesser known writers use the Huffington Post to gain credibility. Neither group of writers would lose copyright privileges on their stories and both are free to re-post them elsewhere online. In all, HuffPo and its unpaid bloggers had a symbiotic relationship, not an unfair, unjust or inequitable one.
No one is more bummed about this result than the unpaid bloggers here at LASIS. Looks like we’ll have to make our money in the booming legal job market.
[Editor's note: This piece originally ran with Mr. Gillmor's name misspelled. It also said that he'd demanded that Ms. Huffington change her treatment of policy, when he'd actually made a strong suggestion, not a demand. We apologize for the errors].