Last week, labor activist and writer, John Tasini pledged a vendetta against Arianna Huffington, co-founder of The Huffington Post. Not only did he claim to personally make her life “a living hell”, but he also threatened to make her “a pariah in the progressive community” after comparing Huffington Post bloggers “modern day slaves”.
Sounds completely sane, right?
Tasini’s comments were made in light of a lawsuit he filed on the 12th of April against Arianna Huffington, The Huffington Post and its new parent company, AOL. Tasini is under the impression that unpaid site contributors, including himself, deserve a slice of the pie from the site’s $315 million buyout from AOL. How much does he want, exactly? No less than $105 million of course, after all he’s a reasonable guy.
Weak Legal Theories
So what is the basis of this lawsuit exactly? Well it brings up an interesting question: Should all content creators be paid by the media sites they provide for? If the law rules that they should, how will lack of free content affect the creative market? How will it be enforced? Although the questions are valid, the means of answering them are not, as a trial court relies more so on weak legal theories than moral decision making.
The main legal theory that Tasini is riding on is unjust enrichment. The argument follows that The Huffington Post makes an enormous amount of revenue by allowing people to contribute to the site for free, in exchange for exposure. As the “entirety of the financial gain” goes to the site, while bloggers go unpaid, despite their content generating a portion of revenue, it can be argued that HuffPo has been unjustly enriched.
The theory of unjust enrichment is targeted at cases in which there is no binding contract between any of the parties involved. In such a case, the court can impose the obligation for one party to compensate the other, providing it is the just and fair thing to do and there is no formal contract.
According to the Southern District of New York, where the lawsuit has commenced, 3 things must be proven in order to impose unjust enrichment:
“(1) that the defendant benefited; (2) at the plaintiff’s expense; and (3) that equity and good conscience require restitution.”
Tasini has somewhat of a case with the first two elements of this theory. He could possibly prove that the defendant benefitted by providing evidence of HuffPo’s revenue due to free content. He could also argue that bloggers go out of pocket in order to provide content for HuffPo, although all unpaid content creators would have already been aware of this. However, there would be no evidence to support the claim that equity and good conscience require restitution by HuffPo to the bloggers. Thus the argument is flawed and we’d like to get this over with already.
Huffington Post Slaves?
At the end of the day, bloggers for The Huffington Post knew from the beginning that they would be writing for free, and it is unreasonable to assume that they expected to be reimbursed in some way. This does not make them “modern day slaves”, as Tasini would put it, in fact the very suggestion is embarrassing. We live in a digital-age where content providers are everywhere, it’s foolish to think that companies should pay for something that is being willingly provided for free. As Lauren Kirchner wrote in February, in the Columbia Journalism Review:
The thousands of unpaid bloggers…have signed no agreement with the site, and are under no obligation to submit their stories with any regularity. They do not receive assignments. If they have an idea for a post but then decide not to write it, they are not penalized by the site’s editors in any way…When bloggers no longer feel it’s in their interest — or that it’s disproportionately too much in AOL/HuffPo’s interest — then they’ll quit, which they have every right to do…Every individual writer has his or her own individual motivations for contributing for the site.
It is clear that Tasini is shooting in the dark with this one in a desperate attempt to jump on a wealthy opportunity. Unlucky for him, people aren’t as stupid as he thinks, and it’s quite clear that this entire controversy is unsubstantiated.
If you’re good at something, never do it for free – that includes you too, bloggers.