Huffin'n'puffin' for Arianna and nuthin' to show for it
April 12, 2011 6:03 PM Subscribe
Thank you for visiting HuffingtonPostLawsuit.com. On April 12, 2011 Plaintiff Jonathan Tasini, individually and on behalf of all others similarly situated, filed a federal class action lawsuit against The HuffingtonPost.com, Inc., AOL Inc., Arianna Huffington and Kenneth Lerer for unjust enrichment and deceptive business practices. For more information, please see a copy of the complaint or contact Kurzon Strauss LLP.
When Matt sells the Meta, i wanna get paid for every worthless post I've taken the time to type....
posted by tomswift at 6:18 PM on April 12, 2011
posted by tomswift at 6:18 PM on April 12, 2011
When Matt sells the Meta, i wanna get paid for every worthless post I've taken the time to type....
The bill comes to $5.
posted by furiousxgeorge at 6:18 PM on April 12, 2011 [8 favorites]
The bill comes to $5.
posted by furiousxgeorge at 6:18 PM on April 12, 2011 [8 favorites]
No one forced Jonathan Tasini to work for free. Why'd he agree to provide content to The Huffington Post for free if he wanted to get paid?
posted by MegoSteve at 6:24 PM on April 12, 2011 [1 favorite]
posted by MegoSteve at 6:24 PM on April 12, 2011 [1 favorite]
I can actually see this gaining traction if, and pretty much only if, Arianna strung some of these people along with a volunteer-now-for-X-down-the-road.
Its nice that she got people to help but... uh... free labor -> mega profit for one person? I think we already had a thread on how this was (not) going to be the future.
posted by Slackermagee at 6:26 PM on April 12, 2011 [2 favorites]
Its nice that she got people to help but... uh... free labor -> mega profit for one person? I think we already had a thread on how this was (not) going to be the future.
posted by Slackermagee at 6:26 PM on April 12, 2011 [2 favorites]
I's got a tip for ya: if you don't want to do something for free, don't do it for free. And if you do, don't bitch about it later.
More seriously, dude, there was never any promise to pay here. There was, rather, a pretty clear indication that you wouldn't get paid. But now you want to change the deal because it just ain't fair.
Look, no one's arguing that you didn't get a shitty deal. But seriously now... You didn't have to make that deal. You did. Cry me a river.
posted by valkyryn at 6:26 PM on April 12, 2011 [1 favorite]
More seriously, dude, there was never any promise to pay here. There was, rather, a pretty clear indication that you wouldn't get paid. But now you want to change the deal because it just ain't fair.
Look, no one's arguing that you didn't get a shitty deal. But seriously now... You didn't have to make that deal. You did. Cry me a river.
posted by valkyryn at 6:26 PM on April 12, 2011 [1 favorite]
I'm all for writers getting paid, but this is a frivolous lawsuit.
posted by brain_drain at 6:27 PM on April 12, 2011
posted by brain_drain at 6:27 PM on April 12, 2011
Well, it worked last time. You would think all the lawsuits would start to cut into his freelance gigs at some point though.
posted by Horace Rumpole at 6:28 PM on April 12, 2011 [2 favorites]
posted by Horace Rumpole at 6:28 PM on April 12, 2011 [2 favorites]
Well, it worked last time
Well, that wiki says " The freelance writers charged copyright infringement due to the use and reuse in electronic media of articles initially licensed to be published in print form"
Which is quite different to me than "I worked for free, but now I want to get paid retroactively". The complaint here basically says they don't think sites should be able to use free content to generate revenue, which is quite different than violating the terms of a license.
posted by wildcrdj at 6:32 PM on April 12, 2011
Well, that wiki says " The freelance writers charged copyright infringement due to the use and reuse in electronic media of articles initially licensed to be published in print form"
Which is quite different to me than "I worked for free, but now I want to get paid retroactively". The complaint here basically says they don't think sites should be able to use free content to generate revenue, which is quite different than violating the terms of a license.
posted by wildcrdj at 6:32 PM on April 12, 2011
Which is quite different to me than "I worked for free, but now I want to get paid retroactively". The complaint here basically says they don't think sites should be able to use free content to generate revenue, which is quite different than violating the terms of a license.
Oh, clearly there's a lot of difference in the merits between the two lawsuits. I was just pointing out Tasini's history in lawsuits against media organizations for some added context.
posted by Horace Rumpole at 6:36 PM on April 12, 2011
Oh, clearly there's a lot of difference in the merits between the two lawsuits. I was just pointing out Tasini's history in lawsuits against media organizations for some added context.
posted by Horace Rumpole at 6:36 PM on April 12, 2011
I think the lawyers should be paid. In raspberries.
posted by Blazecock Pileon at 6:46 PM on April 12, 2011
posted by Blazecock Pileon at 6:46 PM on April 12, 2011
Eugene Volokh doesn't think Tasini has a case.
posted by Chocolate Pickle at 6:47 PM on April 12, 2011
posted by Chocolate Pickle at 6:47 PM on April 12, 2011
Huffington should give him a lifetime supply of homeopathic remedies for his troubles.
posted by TrialByMedia at 6:58 PM on April 12, 2011 [4 favorites]
posted by TrialByMedia at 6:58 PM on April 12, 2011 [4 favorites]
Can you get in on the Huff'n action if you had an account and commented on the content there?
How about if it was on the Cobuffington repost?
posted by rough ashlar at 6:59 PM on April 12, 2011
How about if it was on the Cobuffington repost?
posted by rough ashlar at 6:59 PM on April 12, 2011
I wonder if this guy thinks Daily Kos diary writers would sue if that website were sold to Media Matters.
If not, perhaps it is safe to say "Christ, what an asshole."
posted by shii at 7:01 PM on April 12, 2011
If not, perhaps it is safe to say "Christ, what an asshole."
posted by shii at 7:01 PM on April 12, 2011
Writers worked for free ...here, lawyer-like comments on the case--posted for free.
Pardon me if I wait till the case is heard and a judgement rendered.
posted by Postroad at 7:06 PM on April 12, 2011
Pardon me if I wait till the case is heard and a judgement rendered.
posted by Postroad at 7:06 PM on April 12, 2011
I don't think we're commenting on the legal merits of the case, just the moral merits.
posted by shii at 7:11 PM on April 12, 2011
posted by shii at 7:11 PM on April 12, 2011
If some dude started a restaurant started with uncompensated people, and sold it to McDonalds, pocketing the money, I think the IRS and state tax board and state labor board would all be breathing down the seller's and buyer's throats. Even if everyone had agreed in writing to work for free in exchange for, I don't know, being seen in the local food service community and maybe placed in restaurant advertisements in local papers and getting modest fame as a result.
Why does Huffington Post get a pass? I'm not snarking, I'm actually interested, from a labor law or contracts perspective, in how the two differ.
posted by zippy at 7:35 PM on April 12, 2011 [7 favorites]
Why does Huffington Post get a pass? I'm not snarking, I'm actually interested, from a labor law or contracts perspective, in how the two differ.
posted by zippy at 7:35 PM on April 12, 2011 [7 favorites]
Not so much the state labor board ads the federal Wage and Hour Division of the US Labor Department. It has stopped companies from asking people to work on promises of future pay, I know.
posted by raysmj at 8:08 PM on April 12, 2011
posted by raysmj at 8:08 PM on April 12, 2011
Anyone heard from Mayhill Fowler? Arianna and her minions did sort of promise/imply that writing for free at HuffPo could possibly lead to greater fame, glory and pay, although not from her. HuffPo was providing a server, bandwidth, and hosting. As far as I know, and I've been a paid blogger who was approached by HuffPo, no one was ever promised future pay from the site. Not that I admire Arianna, AOL or Huffington Post, but I'm with Dr. Johnson.
posted by Ideefixe at 8:12 PM on April 12, 2011
posted by Ideefixe at 8:12 PM on April 12, 2011
Tasini is a pretty damn good guy, people. His politics are terrific and he was president of the writers' union for a while.
But I guess it's more fun to assume his case is BS and that he's some kind of crank.
posted by Joseph Gurl at 8:21 PM on April 12, 2011
But I guess it's more fun to assume his case is BS and that he's some kind of crank.
posted by Joseph Gurl at 8:21 PM on April 12, 2011
From MediaIte, March 29, 2011 — Do HuffPost Bloggers Feel Exploited? Survey Says… Results are due from participating HuffPo writers sometime in April, but the survey questions include:
posted by cenoxo at 8:26 PM on April 12, 2011
- Do you feel you should receive part of the $315 million AOL used to purchase the Huffington Post?One cadre of HuffPo contributors has gone On Strike from the Huffington Post. Visual Art Source publisher/co-editor Bill Lasarow explains:
- Do you feel that the Huffington Post’s brand has changed since the merger with AOL?
- How would you compare the conditions at the Huffington Post to other sites you have blogged for?
- Some have raised concerns about the labor arrangement bloggers have with The Huffington Post. In your opinion, what do you think is the best way for bloggers to address the issue of compensation for digital labor?
When we were invited to become a Huffington Post blogger last year I understood that the company paid nothing. We surveyed our writers’ reaction to assess their willingness to have their material reposted there for no additional pay. Visual Art Source, ArtScene and Art Ltd. form an umbrella art publishing company that is actually quite large by the standards of our very specialized field. The tens of thousands of readers and online users that we boast, however, are miniscule compared to the 26 million visitors per month that the Huffington Post currently draws.Bloggers to the barricades.
Yet we are now going on strike. For now, at least, no more content from us will appear on the Huffington Post.
...we shall remain on strike until these two demands are met. First, a pay schedule must be proposed and steps initiated to implement it for all contributing writers and bloggers. Second, paid promotional material must no longer be posted alongside editorial content; a press release or exhibition catalogue essay is fundamentally different from editorial content and must be either segregated and indicated as such, or not published at all.
I am also calling upon all others now contributing free content, particularly original content to the Huffington Post to also join us in this strike.
posted by cenoxo at 8:26 PM on April 12, 2011
"But I guess it's more fun to assume his case is BS and that he's some kind of crank."
I'm not seeing anything presented that states a contract was broken (or even an informal promise).. find me someone in the creative arts fields that hasn't busted his/her butt to get a door open, some exposure, or some experience... everyone works for free, or next to nothing at some point... and most people are happy for the return they get.
If he worked longer in that capacity than he should have, I don't see how someone else is at fault...nice guy or not..
posted by tomswift at 8:26 PM on April 12, 2011
I'm not seeing anything presented that states a contract was broken (or even an informal promise).. find me someone in the creative arts fields that hasn't busted his/her butt to get a door open, some exposure, or some experience... everyone works for free, or next to nothing at some point... and most people are happy for the return they get.
If he worked longer in that capacity than he should have, I don't see how someone else is at fault...nice guy or not..
posted by tomswift at 8:26 PM on April 12, 2011
tomswift, disagreeing with his claim is one thing, but unless you're a labor lawyer, it's just speculation--and much of this thread is more point-and-laugh than research-and-analyze.
The guy is not a frivolous person or chronic litigator, which means his case is probably worthy of some actual analysis.
Do you know something about labor law? Any relevant precedents that could help us actually understand the case rather than just snipe?
posted by Joseph Gurl at 8:32 PM on April 12, 2011 [1 favorite]
The guy is not a frivolous person or chronic litigator, which means his case is probably worthy of some actual analysis.
Do you know something about labor law? Any relevant precedents that could help us actually understand the case rather than just snipe?
posted by Joseph Gurl at 8:32 PM on April 12, 2011 [1 favorite]
My question is, whose bright idea was it to "hire" this guy at HuffPo in the first place? Talk about a freelance track record.
posted by gottabefunky at 8:55 PM on April 12, 2011
posted by gottabefunky at 8:55 PM on April 12, 2011
zippy: they differ because there's a fundamental difference in US law between employees and independent contractors. Employees are under the direct control of their employers, and in return they are entitled to the usual wage and hour regulations and they might get benefits. Independent contractors are basically small businesses that come to their own agreement with another party to determine what work will be done and how they are compensated. In return, they get to deduct business expenses and do other things employees cannot do, like choose the way they want to work or even subcontract the work out.
When you hire a plumber to come unclog your drain on Tuesday afternoon in exchange for a $150 flat rate, you're hiring an independent contractor. When you hire a plumber to show up at your office at 9am, drive to 10 different sites in a van you provide according to your dispatcher's direction, complete various tasks using the tools you provide and company proscribed methods, wear a uniform and identify himself as a representative of your plumbing company, and you pay him on an hourly basis for the entire time from 9-5 even though that period includes travel time and gaps between appointments, you've obviously hired an employee.
Similarly, you've hired a contractor when you hire Superior Cleaning Service to clean your office every night for the next year in exchange for a flat monthly fee, but you've hired an employee when you hire Jon Smith to be your janitor every night from 5-9pm for an hourly wage and you get to directly tell him what to do and how to do it. Superior Cleaning is free to fulfill the terms of your agreement any way they want and they don't generally have to provide any services not covered in that agreement. If they want to send robots to clean your office, that's fair game. Unless the agreement says otherwise, Superior can send 30 janitors or 10 and they can use any vacuum and cleaning chemicals they want, as long as the job gets done as originally promised. Jon Smith must personally appear at the times you specify and perform the tasks you assign according to the instructions you give. He doesn't have the automatic right to send his brother Wayne in his place and he can't refuse (without quitting) to sweep out the parking lot because that isn't part of his job.
It's a bit of a complex distinction, and certainly a number of companies abuse contractors in all sorts of unpleasant ways, but the overall concept is a pretty solid part of labor and tax law. I'll point you at the IRS page on the subject for more info.
The long and the short of it is that a bunch of freelance writers who are asked to contribute blog posts on their own schedules using their own computers and internet connections on the topics of their choosing with limited supervision or editorial control, they are very clearly acting as independent contractors and not as employees (not a lawyer, contact one if you want to start your own HuffPo). This is an entirely different situation from the dude who hires employees to staff his restaurant. The guy at the cash register is not a small businessman working as a service provider to the restaurant; he's an employee working under the control and direction of the restaurant manager.
So, while a HuffPo freelancer blogging for free seems like the unpaid restaurant worker, US law treats them as significantly different cases, and wage and hour laws don't apply to contractors.
posted by zachlipton at 8:57 PM on April 12, 2011 [8 favorites]
When you hire a plumber to come unclog your drain on Tuesday afternoon in exchange for a $150 flat rate, you're hiring an independent contractor. When you hire a plumber to show up at your office at 9am, drive to 10 different sites in a van you provide according to your dispatcher's direction, complete various tasks using the tools you provide and company proscribed methods, wear a uniform and identify himself as a representative of your plumbing company, and you pay him on an hourly basis for the entire time from 9-5 even though that period includes travel time and gaps between appointments, you've obviously hired an employee.
Similarly, you've hired a contractor when you hire Superior Cleaning Service to clean your office every night for the next year in exchange for a flat monthly fee, but you've hired an employee when you hire Jon Smith to be your janitor every night from 5-9pm for an hourly wage and you get to directly tell him what to do and how to do it. Superior Cleaning is free to fulfill the terms of your agreement any way they want and they don't generally have to provide any services not covered in that agreement. If they want to send robots to clean your office, that's fair game. Unless the agreement says otherwise, Superior can send 30 janitors or 10 and they can use any vacuum and cleaning chemicals they want, as long as the job gets done as originally promised. Jon Smith must personally appear at the times you specify and perform the tasks you assign according to the instructions you give. He doesn't have the automatic right to send his brother Wayne in his place and he can't refuse (without quitting) to sweep out the parking lot because that isn't part of his job.
It's a bit of a complex distinction, and certainly a number of companies abuse contractors in all sorts of unpleasant ways, but the overall concept is a pretty solid part of labor and tax law. I'll point you at the IRS page on the subject for more info.
The long and the short of it is that a bunch of freelance writers who are asked to contribute blog posts on their own schedules using their own computers and internet connections on the topics of their choosing with limited supervision or editorial control, they are very clearly acting as independent contractors and not as employees (not a lawyer, contact one if you want to start your own HuffPo). This is an entirely different situation from the dude who hires employees to staff his restaurant. The guy at the cash register is not a small businessman working as a service provider to the restaurant; he's an employee working under the control and direction of the restaurant manager.
So, while a HuffPo freelancer blogging for free seems like the unpaid restaurant worker, US law treats them as significantly different cases, and wage and hour laws don't apply to contractors.
posted by zachlipton at 8:57 PM on April 12, 2011 [8 favorites]
Something can be unjust without being a tort.
posted by Chocolate Pickle at 9:02 PM on April 12, 2011 [1 favorite]
posted by Chocolate Pickle at 9:02 PM on April 12, 2011 [1 favorite]
From the February 10, 2011 Columbia Journalism Review article, AOL Settled with Unpaid “Volunteers” for $15 Million: Why the HuffPost bloggers won’t be so lucky, and why that matters:
posted by cenoxo at 9:37 PM on April 12, 2011 [3 favorites]
Tim Rutten, writing in the Los Angeles Times on Wednesday, wrote that the real loser in the deal will be journalism itself. He likened The Huffington Post’s business model, which emphasizes aggregation and unpaid contributors, to “a galley rowed by slaves and commanded by pirates.” He writes:AOL fought a similar battle before, and almost waited it out:
“The fact is that AOL and the Huffington Post simply recapitulate in the new media many of the worst abuses of the old economy’s industrial capitalism—the sweatshop, the speedup and piecework; huge profits for the owners; desperation, drudgery and exploitation for the workers. No child labor, yet, but if there were more page views in it….”
In the 1990s, America Online established a Community Leader Program within its membership service; community leaders were trained members who would do tasks like moderating chatrooms, reporting offensive behavior, answering questions from other subscribers, and organizing fantasy sports games. In exchange for working a certain number of hours a week, these “volunteers” would get discounts on their monthly AOL connection fee. Thousands of members took part in the program. But in 1999, a group of those Community Leaders asked the Department of Labor to investigate whether the program violated the Federal Fair Labor Standards Act.The article concludes:
...
But the AOL litigation, at least, was a tricky case nonetheless. The court denied AOL’s requests for dismissal, but it didn’t move to bring the case to trial, either. Hallissey et al. v. America Online sat in the court for years before AOL finally moved to settle the case in 2009. The payout was reportedly for $15 million...
...The Huffington Post is under no legal obligation to give them anything more than that forum. Under current labor law—unless we’re missing something here—The Huffington Post’s business model is perfectly legal. But is it right?Buy low, sell high: have we got a deal for you (and you, and you...)
Even though the writers don’t feel that they are being used, that doesn’t mean that they aren’t. The Huffington Post reaps actual direct financial rewards from all this free labor, whereas the bloggers’ rewards are indirect, and primarily emotional. That has always been true, but the contrast is thrown into much sharper relief when we suddenly learn the extent of those financial rewards, to the tune of $315 million.
posted by cenoxo at 9:37 PM on April 12, 2011 [3 favorites]
The guy is not a frivolous person or chronic litigator, which means his case is probably worthy of some actual analysis.
I'm not a lawyer of any sort, but I did read his complaint and I'm simply scratching my head. Here's my summary interpretation of his argument:
By basically the same logic, any open source software contributor could sue after the fact for a share of the revenues derived from the use of their code. What about Wikipedia contributors? Heck, I could sue Metafilter for profiting off my comments and posts, and unlike Tasini, I'm $5 down on that deal.
The only potentially valid point he makes is that HuffPo was apparently pretty coy with its contributors about their pageview statistics, going so far as to tell writers in one case that "unfortunately we don't keep stats on all our pages." While this is probably untrue and is a silly thing for them to say, no one promised Tasini any statistics. It seems he got the "exposure" he was promised by virtue of being included on the site, and if he wanted more exposure or specific guarantees as to how he would be promoted, he should have requested them as a condition of submitting his content.
Fundamentally, two parties willingly entered into an agreement. It turns out that one party made money from that agreement, while the other didn't, but he wasn't promised any either. Why should a court break that agreement now?
posted by zachlipton at 9:47 PM on April 12, 2011 [1 favorite]
I'm not a lawyer of any sort, but I did read his complaint and I'm simply scratching my head. Here's my summary interpretation of his argument:
- TheHuffingtonPost.com selected me as a writer. They did so because they thought people who like me might come to the site to read my blog there.
- They never said I'd get any money, but they said I could get "exposure" by having my writing on the site
- I spent a bunch of time and effort writing things for the site. My writing was high quality.
- This exposure was worth less than I thought it would be, but it turned out that my writing was valuable to HuffPo.
- They said they were providing a "free forum for ideas," but they never told me they could make any money. Thus they deceived me.
- HuffPo made a whole bunch of money. The reason they made this money is because people like me gave them content for free.
- This is unfair!
- HuffPo should pay me a big chunk of their whole bunch of money because this is unfair.
- They are making money and I'm not. Unfair!
- Did I mention this is unfair?
- I knowingly and willingly gave a bunch of stuff away for free without any promise of monetary compensation. It was good stuff too.
- They sold that stuff and made a lot of money.
- That's unfair! They should pay me too!
By basically the same logic, any open source software contributor could sue after the fact for a share of the revenues derived from the use of their code. What about Wikipedia contributors? Heck, I could sue Metafilter for profiting off my comments and posts, and unlike Tasini, I'm $5 down on that deal.
The only potentially valid point he makes is that HuffPo was apparently pretty coy with its contributors about their pageview statistics, going so far as to tell writers in one case that "unfortunately we don't keep stats on all our pages." While this is probably untrue and is a silly thing for them to say, no one promised Tasini any statistics. It seems he got the "exposure" he was promised by virtue of being included on the site, and if he wanted more exposure or specific guarantees as to how he would be promoted, he should have requested them as a condition of submitting his content.
Fundamentally, two parties willingly entered into an agreement. It turns out that one party made money from that agreement, while the other didn't, but he wasn't promised any either. Why should a court break that agreement now?
posted by zachlipton at 9:47 PM on April 12, 2011 [1 favorite]
I'm not a lawyer (who really is?) but let's say .....
Your a poor widow and you own a crappy house. The house isn't worth much really and one day a kindly handyman harkens to your plight and comes over and decides to paint your windowsills . He doesn't ask you for any pay but he asks that you tell your friends about hi and you do. Your pretty happy with his work especially when he comes over the next week and repaints your garage door so it looks like new. "Thank you!" you say . "Tell all your friends!" he says.
The week after that he brings over a few friends and they replace all your old shoddy windows with double pane insulated siding. Your heating bills go way down. "Tell all your friends about us!" they say. And you do whenever you can.
The week after that you ask them if the can replace your badly leaking roof. And they do! The week after that you ask them if they can do something about your yard maybe and they landscape your front and back lawns. You tell all your friends about these guys and it goes on and on, week after week , with you making more and more requests that the kindly handymen are all too happy to do for you - just "tell all your friends about what we did for you!" they ask. And you do.
On an on it goes until one day.....
You find that you have a freaking awesomely built house now and someone makes an offer on it for 315 million dollars, five hundred times what your house was ever worth , which you gladly accept!
The next week the handymen come back to visit after hearing about your incredible sale . "Screw you guys !" , you say and you don't even throw then a few thou for all their time and trouble acceding to your requests over the months that past.
I am no lawyer .... but I can;t help but wonder how sympathetic a jury would be to the nice handymen who helped you so much over the years.
posted by Poet_Lariat at 10:43 PM on April 12, 2011 [1 favorite]
Your a poor widow and you own a crappy house. The house isn't worth much really and one day a kindly handyman harkens to your plight and comes over and decides to paint your windowsills . He doesn't ask you for any pay but he asks that you tell your friends about hi and you do. Your pretty happy with his work especially when he comes over the next week and repaints your garage door so it looks like new. "Thank you!" you say . "Tell all your friends!" he says.
The week after that he brings over a few friends and they replace all your old shoddy windows with double pane insulated siding. Your heating bills go way down. "Tell all your friends about us!" they say. And you do whenever you can.
The week after that you ask them if the can replace your badly leaking roof. And they do! The week after that you ask them if they can do something about your yard maybe and they landscape your front and back lawns. You tell all your friends about these guys and it goes on and on, week after week , with you making more and more requests that the kindly handymen are all too happy to do for you - just "tell all your friends about what we did for you!" they ask. And you do.
On an on it goes until one day.....
You find that you have a freaking awesomely built house now and someone makes an offer on it for 315 million dollars, five hundred times what your house was ever worth , which you gladly accept!
The next week the handymen come back to visit after hearing about your incredible sale . "Screw you guys !" , you say and you don't even throw then a few thou for all their time and trouble acceding to your requests over the months that past.
I am no lawyer .... but I can;t help but wonder how sympathetic a jury would be to the nice handymen who helped you so much over the years.
posted by Poet_Lariat at 10:43 PM on April 12, 2011 [1 favorite]
PL, it won't reach a jury. Huffington's lawyers will move to dismiss with prejudice and the motion will be granted. Huffington may even be granted her legal fees.
posted by Chocolate Pickle at 10:50 PM on April 12, 2011
posted by Chocolate Pickle at 10:50 PM on April 12, 2011
If they're contractors, then what's the consideration (the thing of value) they received in order to make the contract valid? Was it attention? Would that be valid as consideration? Was it free hosting?
There are certain circumstances that make signed contracts invalid, and I'm curious how "unfair" a contract can be and still be valid. Like, I know I could legally buy a car for cheap from a seller who is clueless about the car's worth and I happen to know it's a one of a kind worth millions. But do things get different when you have an ongoing, work-like relationship and only one side is even able to measure things like traffic, as alleged above? The information disparity in an ongoing work-like relationship seems different than the car example.
posted by zippy at 10:55 PM on April 12, 2011
There are certain circumstances that make signed contracts invalid, and I'm curious how "unfair" a contract can be and still be valid. Like, I know I could legally buy a car for cheap from a seller who is clueless about the car's worth and I happen to know it's a one of a kind worth millions. But do things get different when you have an ongoing, work-like relationship and only one side is even able to measure things like traffic, as alleged above? The information disparity in an ongoing work-like relationship seems different than the car example.
posted by zippy at 10:55 PM on April 12, 2011
Fundamentally, two parties willingly entered into an agreement. It turns out that one party made money from that agreement, while the other didn't, but he wasn't promised any either. Why should a court break that agreement now?
zachlipton, in your earlier comment, you correctly pointed out the distinction between employees and independent contractors and why this really isn't a question of wage and hour law, as many upthread had assumed. But this isn't exactly a breach of contract case, either. If you read all the way to the end of the complaint, you'll see that the lawsuit states two causes of action: (1) deceptive business practices under a NY statute, and (2) unjust enrichment as a result of the deceptive practices, presumably under NY common law.
Unjust enrichment, in a very small nutshell, is a principle of liability that requires that (1) the defendant benefits (2) at the plaintiff's expense, and (3) principles of "equity and good conscience" require restitution to the plaintiff. No tort or breach of contract is required. Here, the theory is that good conscience requires that they disgorge any profits they made as a result of the deceptive business practice.
So really, the question is not "were they employees?" or "did they have an expectation of receiving payment?" but "were the plaintiffs actually misled, to their detriment, by the defendants' actions?" and "were HuffPo's actions egregious enough to merit compelling them to disgorge their profits?"
And whether the case will survive summary judgment on these facts is another question.
posted by c lion at 10:57 PM on April 12, 2011 [4 favorites]
zachlipton, in your earlier comment, you correctly pointed out the distinction between employees and independent contractors and why this really isn't a question of wage and hour law, as many upthread had assumed. But this isn't exactly a breach of contract case, either. If you read all the way to the end of the complaint, you'll see that the lawsuit states two causes of action: (1) deceptive business practices under a NY statute, and (2) unjust enrichment as a result of the deceptive practices, presumably under NY common law.
Unjust enrichment, in a very small nutshell, is a principle of liability that requires that (1) the defendant benefits (2) at the plaintiff's expense, and (3) principles of "equity and good conscience" require restitution to the plaintiff. No tort or breach of contract is required. Here, the theory is that good conscience requires that they disgorge any profits they made as a result of the deceptive business practice.
So really, the question is not "were they employees?" or "did they have an expectation of receiving payment?" but "were the plaintiffs actually misled, to their detriment, by the defendants' actions?" and "were HuffPo's actions egregious enough to merit compelling them to disgorge their profits?"
And whether the case will survive summary judgment on these facts is another question.
posted by c lion at 10:57 PM on April 12, 2011 [4 favorites]
Why should the handymen be legally entitled to any of the proceeds of the labor they voluntarily performed for free? If they wanted a stake in the value of the house in exchange for their work, they could have made that deal with the widow, just as employees in a startup get equity as part of their compensation. If they didn't make an agreement up front, they are merely depending on the widow to compensate them out of the goodness of her heart, and you can't really sue someone for unfairness.
Also, Huffington Post contributors weren't writing out of altruism for the poor old widow Ariana; they were writing because they thought they'd look more impressive if their work was published on her site. A closer analogy would be that the handymen did the work for free in exchange for getting to hang advertisements on the front of the widow's house, but later they insist that they should have gotten paid too.
Fundamentally, this case is about assigning value to services rendered.
posted by zachlipton at 11:00 PM on April 12, 2011
Also, Huffington Post contributors weren't writing out of altruism for the poor old widow Ariana; they were writing because they thought they'd look more impressive if their work was published on her site. A closer analogy would be that the handymen did the work for free in exchange for getting to hang advertisements on the front of the widow's house, but later they insist that they should have gotten paid too.
Fundamentally, this case is about assigning value to services rendered.
posted by zachlipton at 11:00 PM on April 12, 2011
c lion, it all hinges on the "deception" claim. So how, then, were they deceived? I sure don't see anything.
posted by Chocolate Pickle at 11:05 PM on April 12, 2011
posted by Chocolate Pickle at 11:05 PM on April 12, 2011
PL, it won't reach a jury.
I suppose we'll see what we shall see. The OP makes reference to AOL's use of community unpaid volunteers in their chatrooms and those guys ended up with 15 million.
A few things to consider - these unpaid "bloggers" (writers? journalists??) were operating to some standards as defined by HuffPo. At some point the unpaid writers almost certainly had to have been referred to some sort of HuffPo style guide and required to conform to it. In other words they were not completely independent. Furthermore I would bet a tidy some that the Huffpo editors were directing many of the bloggers as to what they wanted them to write about - and rejecting many articles they didn't want. I;d just about bet that if a writer missed enough deadlines or requests he would be turned away from further writing for the HuffPo.
Now I don't know any of the above for a fact byt all of the above are probably very likely in view of the way that the HuffPo has been organized over the years.
If indeed some of the above are true (probably a good bet) than the writers would almost certainly fall under the classification of workers rather than independent contractors under California and Federal law and is such is the case then the workers are owed appropriate wages. Microsoft had to bite a similar bullet when it was found in court that much of it's contractor workforce - employed there for years at a time - had to be considered employees and were owed back compensation for things like vacation time , healthcare etc.
I think this is far from decided yet :)
posted by Poet_Lariat at 11:06 PM on April 12, 2011 [1 favorite]
I suppose we'll see what we shall see. The OP makes reference to AOL's use of community unpaid volunteers in their chatrooms and those guys ended up with 15 million.
A few things to consider - these unpaid "bloggers" (writers? journalists??) were operating to some standards as defined by HuffPo. At some point the unpaid writers almost certainly had to have been referred to some sort of HuffPo style guide and required to conform to it. In other words they were not completely independent. Furthermore I would bet a tidy some that the Huffpo editors were directing many of the bloggers as to what they wanted them to write about - and rejecting many articles they didn't want. I;d just about bet that if a writer missed enough deadlines or requests he would be turned away from further writing for the HuffPo.
Now I don't know any of the above for a fact byt all of the above are probably very likely in view of the way that the HuffPo has been organized over the years.
If indeed some of the above are true (probably a good bet) than the writers would almost certainly fall under the classification of workers rather than independent contractors under California and Federal law and is such is the case then the workers are owed appropriate wages. Microsoft had to bite a similar bullet when it was found in court that much of it's contractor workforce - employed there for years at a time - had to be considered employees and were owed back compensation for things like vacation time , healthcare etc.
I think this is far from decided yet :)
posted by Poet_Lariat at 11:06 PM on April 12, 2011 [1 favorite]
Chocolate Pickle, see paragraphs 101-105 of the complaint. I agree, at a glance, the deception claim seems very weak, and I'm not sure they even allege enough facts to survive SJ.
posted by c lion at 11:11 PM on April 12, 2011
posted by c lion at 11:11 PM on April 12, 2011
Re paras 101-105, I'm not impressed. I'll be very, very surprised if this suit survives pretrial motions.
posted by Chocolate Pickle at 11:20 PM on April 12, 2011
posted by Chocolate Pickle at 11:20 PM on April 12, 2011
If they're contractors, then what's the consideration (the thing of value) they received in order to make the contract valid? Was it attention? Would that be valid as consideration? Was it free hosting?
Zippy, no consideration is necessary because they are not bringing a contract claim. But to answer your question, yes, intangible things such as attention are valid as consideration.
posted by c lion at 11:26 PM on April 12, 2011 [2 favorites]
Zippy, no consideration is necessary because they are not bringing a contract claim. But to answer your question, yes, intangible things such as attention are valid as consideration.
posted by c lion at 11:26 PM on April 12, 2011 [2 favorites]
Most of the text of the lawsuit is just background the toclaimed at the end staring around #100.
1- Huffington Post and the writers had an agreement wherein the writers joined a community and would receive visibility and exposure. Huffington post represented itself as a community, but it was really a content publisher making money of the writing services provided above.
2- Huffingtonpost deceived its writers in the agreement. It refused to provide exposure data/metrics, which the writer would be reasonably entitled to under the agreement. In fact they denied having this data, even though they were actually using this data to monetize the content. This deception that they could only provide limited info on exposure and that the value was in the larger community being created was a lie to get profession writers to provide free services. This lie prevented writers from getting fair compensation for their work.
3- along with deceiving writers about the nature of the business, Huffingtonpost received Unjust Enrichment from the services see #106-116 -- The basis of the claim seems to be the original agreement was I give your community some content in exchange for exposure. This agreement wasn't fulfilled and was deceptive. You never quantified "exposure" as I would expect, and even lied to keep me contributing for free because it was minting money for you. Also the thing I was contributing to was a big lie, you just wanted to sell my free content, the community was not your aim. Since I wouldn't have agreed to do this absent the fraud, and you unjustly profited from my services which we all agree had value you should pay up.
posted by humanfont at 11:33 PM on April 12, 2011 [3 favorites]
1- Huffington Post and the writers had an agreement wherein the writers joined a community and would receive visibility and exposure. Huffington post represented itself as a community, but it was really a content publisher making money of the writing services provided above.
2- Huffingtonpost deceived its writers in the agreement. It refused to provide exposure data/metrics, which the writer would be reasonably entitled to under the agreement. In fact they denied having this data, even though they were actually using this data to monetize the content. This deception that they could only provide limited info on exposure and that the value was in the larger community being created was a lie to get profession writers to provide free services. This lie prevented writers from getting fair compensation for their work.
3- along with deceiving writers about the nature of the business, Huffingtonpost received Unjust Enrichment from the services see #106-116 -- The basis of the claim seems to be the original agreement was I give your community some content in exchange for exposure. This agreement wasn't fulfilled and was deceptive. You never quantified "exposure" as I would expect, and even lied to keep me contributing for free because it was minting money for you. Also the thing I was contributing to was a big lie, you just wanted to sell my free content, the community was not your aim. Since I wouldn't have agreed to do this absent the fraud, and you unjustly profited from my services which we all agree had value you should pay up.
posted by humanfont at 11:33 PM on April 12, 2011 [3 favorites]
So really, the question is not "were they employees?" or "did they have an expectation of receiving payment?" but "were the plaintiffs actually misled, to their detriment, by the defendants' actions?" and "were HuffPo's actions egregious enough to merit compelling them to disgorge their profits?"
I understand that, at least to a point. That's the argument Tasini's lawyers will make. HuffPo will undoubtedly say that Tasini freely entered into a contract, that no one misled him as to the material facts surrounding that contract, and that his failure, in hindsight, to negotiate a better contract is his own fault.
The key part there is whether Tasini was misled as to what he was agreeing to. As far as I can see in the complaint, the deception took the following forms (line 102):
I understand that, at least to a point. That's the argument Tasini's lawyers will make. HuffPo will undoubtedly say that Tasini freely entered into a contract, that no one misled him as to the material facts surrounding that contract, and that his failure, in hindsight, to negotiate a better contract is his own fault.
The key part there is whether Tasini was misled as to what he was agreeing to. As far as I can see in the complaint, the deception took the following forms (line 102):
- HuffPo didn't tell Tasini how many page views his articles were getting. - So? They never said they would tell him this. Shouldn't it up to Tasini to either decide that he's getting enough exposure or to request more data as a condition of publishing his writings? The New York Times doesn't automatically have to give me their circulation data because they published my letter to the editor.
- HuffPo said that pageview data isn't available, but it really is. - This is inappropriate conduct by HuffPo (assuming that a comment in a single email represents the overall communications they provided), but since I don't see how Tasini is entitled to the data, I don't see how this is particularly material. Is there any evidence that Tasini requested traffic data before he started writing
- HuffPo didn't tell Tasini that his exposure would decrease over time as additional content was added - Meanwhile HuffPo was getting more visitors over time, so is this really even the case? In any event, Tasini never asked for nor was he ever promised any kind of exclusivity or top billing in exchange for his content. Why would be believe that the site would stop growing?
- The kicker: HuffPo "present[ed] themselves as a free forum for ideas while actually building a product with substantial value." - They can't do both? It would be deceptive if they said "we'll never make any money off your writing" or "we won't show any ads on the site" when their intent was to do the opposite. Why exactly did Tasini think HuffPo (a for-profit company) was in business? Was he unfamiliar with the idea that websites could be sold, sometimes for millions of dollars? Did he have some reason to believe that HuffPo intended to only create a product with minimal value? Finally, I have to wonder about a failure to mitigate damages here. Even if we accept all of the above, SoftBank invested $5 million in August 2006. This was followed by a $15 million round in November 2008. Here's a 2007 analysis that it's worth at least $60 million (though I very much kick myself for citing Henry Blodget on such matters). Yet Tasini contributed content from December 5, 2005 to February 10, 2011. If he was so deceived by the fact that anyone planned to make money from the site, why didn't he come to that realization in 2006 when a prominent VC firm decided HuffPo was worth millions of dollars? Why didn't he come to that realization on February 7, 2011 when AOL announced its $315 million acquisition, three days before his last post? It's simply not credible to claim that Tasini was deceived to believe that HuffPo was acting as some kind of charitable enterprise that couldn't potentially make millions of dollars, and it's certainly not credible that he continued to be deceived by this despite all the press coverage of HuffPo's increasing valuation and investment activity.
There seem to be a lot of brutal comments here, over and above whether this holds any legal water. No sympathy for the fact a multi-million pound business based its business model on slave labour? And seems not only uncontrite about that, but continues to do it?
If we'd had the 'well, they knew what they were getting into' argument when labour laws were being devised we'd never have got anywhere.
posted by Summer at 1:52 AM on April 13, 2011 [3 favorites]
If we'd had the 'well, they knew what they were getting into' argument when labour laws were being devised we'd never have got anywhere.
posted by Summer at 1:52 AM on April 13, 2011 [3 favorites]
There seem to be a lot of brutal comments here, over and above whether this holds any legal water. No sympathy for the fact a multi-million pound business based its business model on slave labour? And seems not only uncontrite about that, but continues to do it?
Slave labour. What utter bilge.
I don't much care for the use of "contractor" relationships to circumvent labour laws, but it is not quite the same as slavery, is it?
posted by atrazine at 3:46 AM on April 13, 2011 [2 favorites]
Slave labour. What utter bilge.
I don't much care for the use of "contractor" relationships to circumvent labour laws, but it is not quite the same as slavery, is it?
posted by atrazine at 3:46 AM on April 13, 2011 [2 favorites]
Why does Huffington Post get a pass? I'm not snarking, I'm actually interested, from a labor law or contracts perspective, in how the two differ.
Because there's a difference between what this guy is doing and working at McDonald's. There's a categorical difference between not paying people enough and not paying them at all. Minimum wage laws don't tend to kick in until at least some money is on the table, otherwise volunteerism would be entirely illegal.
This is a little stickier in that Tasini was effectively volunteering for a for-profit business, but that just makes him a schmuck. The appropriate response to a legitimate business that asks you to work for free is, and I quote, "Make it rain, bitches."
Also note that this is different than internships, which is something a lot of labor departments are starting to take a serious look at. Not only do businesses sometimes use interns to do the work of full-time employees, but interns are frequently indistinguishable from full-time employees in every respect except pay. This is the one place where labor laws are starting to be applied to workers who don't make anything at all. But Tasini has no work area, no regular hours, no requirements, and no deadlines. He writes what he wants to write, when he wants to write it. If he decides he isn't writing anything this week, no one can say shit to him. HuffPo is, effectively, his blog hosting service.* So it's not as if HuffPo is somehow staffing its office with unpaid workers rather than regular employees. It's just making creative use of very part-time volunteer labor.
You'll note that unlike Ceglia v. Facebook, which is being prosecuted by DLA Piper, one of the most prestigious firms in the world, this case is being prosecuted by a couple of guys no one's ever heard of before. That's almost certainly because no more reputable firm would take the case, and that's because this is as big a loser of a case as I've ever seen.
And yes, I am a lawyer.
*A similar case would be the user base of Blogger suing the company because they didn't get paid as part of the Google buyout. The mind boggles.
posted by valkyryn at 4:15 AM on April 13, 2011 [3 favorites]
Because there's a difference between what this guy is doing and working at McDonald's. There's a categorical difference between not paying people enough and not paying them at all. Minimum wage laws don't tend to kick in until at least some money is on the table, otherwise volunteerism would be entirely illegal.
This is a little stickier in that Tasini was effectively volunteering for a for-profit business, but that just makes him a schmuck. The appropriate response to a legitimate business that asks you to work for free is, and I quote, "Make it rain, bitches."
Also note that this is different than internships, which is something a lot of labor departments are starting to take a serious look at. Not only do businesses sometimes use interns to do the work of full-time employees, but interns are frequently indistinguishable from full-time employees in every respect except pay. This is the one place where labor laws are starting to be applied to workers who don't make anything at all. But Tasini has no work area, no regular hours, no requirements, and no deadlines. He writes what he wants to write, when he wants to write it. If he decides he isn't writing anything this week, no one can say shit to him. HuffPo is, effectively, his blog hosting service.* So it's not as if HuffPo is somehow staffing its office with unpaid workers rather than regular employees. It's just making creative use of very part-time volunteer labor.
You'll note that unlike Ceglia v. Facebook, which is being prosecuted by DLA Piper, one of the most prestigious firms in the world, this case is being prosecuted by a couple of guys no one's ever heard of before. That's almost certainly because no more reputable firm would take the case, and that's because this is as big a loser of a case as I've ever seen.
And yes, I am a lawyer.
*A similar case would be the user base of Blogger suing the company because they didn't get paid as part of the Google buyout. The mind boggles.
posted by valkyryn at 4:15 AM on April 13, 2011 [3 favorites]
Minimum wage laws don't tend to kick in until at least some money is on the table, otherwise volunteerism would be entirely illegal.
That's one of the things I was wondering about. If I were a great con artist, perhaps I could get people to volunteer to work on my farm for free. Let's say I'm a great con artist and I manage to convince a bunch of farm laborers (as opposed to trust fund kids looking for an experience) to work all summer in return for, I don't know, a nice reference for their next job.
Wouldn't volunteerism there be not OK? I guess I'm wondering what counts as legal volunteerism and what counts as 'figuring out a way to avoid paying and paying taxes on labor.' Are there any guidelines?
posted by zippy at 4:40 AM on April 13, 2011
That's one of the things I was wondering about. If I were a great con artist, perhaps I could get people to volunteer to work on my farm for free. Let's say I'm a great con artist and I manage to convince a bunch of farm laborers (as opposed to trust fund kids looking for an experience) to work all summer in return for, I don't know, a nice reference for their next job.
Wouldn't volunteerism there be not OK? I guess I'm wondering what counts as legal volunteerism and what counts as 'figuring out a way to avoid paying and paying taxes on labor.' Are there any guidelines?
posted by zippy at 4:40 AM on April 13, 2011
I shouldn't have used con artist in my hypothetical. Let's say charismatic and devilishly handsome fellow instead.
posted by zippy at 4:43 AM on April 13, 2011
posted by zippy at 4:43 AM on April 13, 2011
It seems to me that every hosting service on the planet that sells ads on your content would be susceptible to a suit like this if it goes forward.
posted by empath at 4:57 AM on April 13, 2011
posted by empath at 4:57 AM on April 13, 2011
Slave labour. What utter bilge
Slave labour is a commonly used term that means free or exploited labour, or at least it is in the UK. I obviously don't literally mean slave labour.
She might have saved all this trouble if she'd given something to her writers as a gesture of good will. But no.
posted by Summer at 5:04 AM on April 13, 2011 [1 favorite]
Slave labour is a commonly used term that means free or exploited labour, or at least it is in the UK. I obviously don't literally mean slave labour.
She might have saved all this trouble if she'd given something to her writers as a gesture of good will. But no.
posted by Summer at 5:04 AM on April 13, 2011 [1 favorite]
I guess I'm wondering what counts as legal volunteerism and what counts as 'figuring out a way to avoid paying and paying taxes on labor.' Are there any guidelines?
The Department of Labor has developed a six-factor test to determine whether an unpaid internship is permissible under federal labor laws. Your example starts to sound like it would be a problem, as 1) the facts you've given don't suggest that there's any kind of educational benefit, 2) the experience isn't of all that much benefit to the workers, 3) the workers are arguably replacing paid employees and not under close supervision of paid staff, and 4) you would derive immediate benefit from their work. You'd be okay on 5) because there's no job in the offering, and 6) because you haven't promised to pay, but you're 2 for 6, which looks bad.
And that's really the question: how does this look? Labor relationships are pretty fuzzy things, increasingly so the farther you get from traditional wage jobs. In Tasini's case, where he has no specified duties, no designated work place, no required hours, and no assignments, all of which even unpaid interns have, it's really hard to argue that labor laws apply to him at all. He is, essentially, writing for his own benefit using a platform provided to him for free. The fact that the provider of the platform uses his writing to make money is incidental to what he does, and if he wanted to be paid, he was entirely capable of saying so up front.
posted by valkyryn at 5:15 AM on April 13, 2011 [2 favorites]
The Department of Labor has developed a six-factor test to determine whether an unpaid internship is permissible under federal labor laws. Your example starts to sound like it would be a problem, as 1) the facts you've given don't suggest that there's any kind of educational benefit, 2) the experience isn't of all that much benefit to the workers, 3) the workers are arguably replacing paid employees and not under close supervision of paid staff, and 4) you would derive immediate benefit from their work. You'd be okay on 5) because there's no job in the offering, and 6) because you haven't promised to pay, but you're 2 for 6, which looks bad.
And that's really the question: how does this look? Labor relationships are pretty fuzzy things, increasingly so the farther you get from traditional wage jobs. In Tasini's case, where he has no specified duties, no designated work place, no required hours, and no assignments, all of which even unpaid interns have, it's really hard to argue that labor laws apply to him at all. He is, essentially, writing for his own benefit using a platform provided to him for free. The fact that the provider of the platform uses his writing to make money is incidental to what he does, and if he wanted to be paid, he was entirely capable of saying so up front.
posted by valkyryn at 5:15 AM on April 13, 2011 [2 favorites]
dude. there's no reason to get all Huffington about it.
posted by quonsar II: smock fishpants and the temple of foon at 5:20 AM on April 13, 2011
posted by quonsar II: smock fishpants and the temple of foon at 5:20 AM on April 13, 2011
Valkyryn, notice that the plaintiffs aren't asking for unpaid wages, they're asking for damages for unjust enrichment as a result of unfair business practices. They never allege an employer/employee relationship.
posted by c lion at 5:33 AM on April 13, 2011 [1 favorite]
posted by c lion at 5:33 AM on April 13, 2011 [1 favorite]
I'm in no position to judge the merits of Tasini's lawsuit, but it looks like it's at least as much a publicity exercise as a genuine case. "Blogger sues Huffington Post" is news; "blogger writes furious rant on new, non-Huffington Post blog" is not. Hell, I've seen this story linked to on Australian news sites mostly read by people who have never heard of, much less read, the Huffington Post. He can't set up a picket line outside a website so he's trying to do the next best thing.
posted by A Thousand Baited Hooks at 6:22 AM on April 13, 2011
posted by A Thousand Baited Hooks at 6:22 AM on April 13, 2011
They never allege an employer/employee relationship.
Yeah, I was just trying to answer zippy's question.
posted by valkyryn at 7:25 AM on April 13, 2011
Yeah, I was just trying to answer zippy's question.
posted by valkyryn at 7:25 AM on April 13, 2011
Agreed they simply imply that both parties had a contract based on exchange of content for recognition/visibility of the writer and to enable community development at Huffpo.
This was the terms under which the content was offered. However huffpo then unfairly benefitted by using the content as the basis of ad selling. Thus undermining the fair market for services which ought to have arisen based on the additional mowntary benefit. The refusal to provide the original expected stats on traffic and page views and denial that this was used by Huffpo fitter undermined the ability of the plantif to get a fair agreement. Ths isn't a labor law issue, it is a simple dispute of fraudulent and deceptive contracts creating a unjust relationship. In essence contract specified a for b to create x, but huffpo never delivered on b and never meant to do x, instead they meant to do z which was make a ton of money off free content. Since the didn't negotiate on those terms the authors are entitled to a cut of the revenue from z instead of b. Also since b wasn't provided a still belongs to the author.
posted by humanfont at 8:26 AM on April 13, 2011 [2 favorites]
This was the terms under which the content was offered. However huffpo then unfairly benefitted by using the content as the basis of ad selling. Thus undermining the fair market for services which ought to have arisen based on the additional mowntary benefit. The refusal to provide the original expected stats on traffic and page views and denial that this was used by Huffpo fitter undermined the ability of the plantif to get a fair agreement. Ths isn't a labor law issue, it is a simple dispute of fraudulent and deceptive contracts creating a unjust relationship. In essence contract specified a for b to create x, but huffpo never delivered on b and never meant to do x, instead they meant to do z which was make a ton of money off free content. Since the didn't negotiate on those terms the authors are entitled to a cut of the revenue from z instead of b. Also since b wasn't provided a still belongs to the author.
posted by humanfont at 8:26 AM on April 13, 2011 [2 favorites]
correct me if am wrong, but isnt this case meant to be a class-action lawsuit? if so, y'all need to wait for people to come out of the wood-work with their stories about how they were recruited to write for free for HuffPo.
the recruitment process is key. they did indeed say things to people that as humanfont points out, could be construed now as deceiving for their future "unjust enrichment" because both this lawsuit and HuffPo's valuation by AOL hinge on 2 things: "traffic and exposure".
if they werent willing to share traffic stats with bloggers, how come they were able to use those stats to sell the property to AOL? if the bloggers were so valueless, how come they actively and aggressively had editors recruiting well-established bloggers and writers of all kinds to come write at their "community" for free? why would they lavish people with dinners and parties so they could become bloggers at Huffington Post?
and then there's the whole editorial process they did have in place with these bloggers, making it even more entangled with the site's workflow.
i believe the active, aggressive recruiting of bloggers by HuffPo is what has caused a lot of the cognitive dissonance within the angry bloggers who fell for their lure. because if they are so worthless, how come the site still sold for $315 million? remember, huffington post refuses to show them actual statistics and to prove they got all the exposure they could have gotten.
NYC is the place where the Triangle Shirtwaist Factory tragedy and of numerous labor fights against sweatshops. the "unjust enrichment" laws didnt come out of a vaccum. we have a long tradition of fighting new forms of labor exploitation.
which is why, given Jonathan Tasini's legal and labor track-record, i see this case going to court.
posted by liza at 8:44 AM on April 13, 2011 [2 favorites]
the recruitment process is key. they did indeed say things to people that as humanfont points out, could be construed now as deceiving for their future "unjust enrichment" because both this lawsuit and HuffPo's valuation by AOL hinge on 2 things: "traffic and exposure".
if they werent willing to share traffic stats with bloggers, how come they were able to use those stats to sell the property to AOL? if the bloggers were so valueless, how come they actively and aggressively had editors recruiting well-established bloggers and writers of all kinds to come write at their "community" for free? why would they lavish people with dinners and parties so they could become bloggers at Huffington Post?
and then there's the whole editorial process they did have in place with these bloggers, making it even more entangled with the site's workflow.
i believe the active, aggressive recruiting of bloggers by HuffPo is what has caused a lot of the cognitive dissonance within the angry bloggers who fell for their lure. because if they are so worthless, how come the site still sold for $315 million? remember, huffington post refuses to show them actual statistics and to prove they got all the exposure they could have gotten.
NYC is the place where the Triangle Shirtwaist Factory tragedy and of numerous labor fights against sweatshops. the "unjust enrichment" laws didnt come out of a vaccum. we have a long tradition of fighting new forms of labor exploitation.
which is why, given Jonathan Tasini's legal and labor track-record, i see this case going to court.
posted by liza at 8:44 AM on April 13, 2011 [2 favorites]
Oh and, one of her books:
Third World America: How Our Politicians Are Abandoning the Middle Class and Betraying the American Dream (2010)
I love the irony here. The Republicans are evil for profiting off the backs of the poor and middle class, but she's not?
posted by Jess the Mess at 9:00 AM on April 13, 2011 [3 favorites]
Third World America: How Our Politicians Are Abandoning the Middle Class and Betraying the American Dream (2010)
I love the irony here. The Republicans are evil for profiting off the backs of the poor and middle class, but she's not?
posted by Jess the Mess at 9:00 AM on April 13, 2011 [3 favorites]
The successful freelancer's attitude: If you're a good writer, they need you more than you need them.
posted by Summer at 9:04 AM on April 13, 2011
posted by Summer at 9:04 AM on April 13, 2011
Tasani writes on his blog[cache]:
We live in a time of unrelenting class warfare. We are the richest nation on earth—yet that wealth is flowing into the hands of the few. The greatest stage for that class warfare is in the workplace: CEOs and their top executives believe that they are the most important part of the company and that they should reap an obscene portion of the value created by WORKERS.posted by stbalbach at 9:07 AM on April 13, 2011 [4 favorites]
The Huffington Post was, is and will never be, anything without the thousands of people who create the content. Ms. Huffington is acting like every Robber Baron CEO—from Lloyd Blankfein to the Waltons—who believes that they, and only they, should pocket huge riches, while the rest of the peons struggle to survive. Ms. Huffington stance has been clear: only she deserves the fruits of the labor of the people who work for her.
Actually, Arianna Huffington is worse than the CEOs of the banks, the Walton family of Wal-mart. At least, they pay their workers something—even if those wages aren’t enough to make ends meet.
Huffington pays zero. Nothing. Nada.
Arianna Huffington is a hypocrite. While reaping money and building her “brand” based on books and speeches decrying the growing divide between rich and poor (I am not linking to those books in order to avoid giving her even more cash to pocket), Ms. Huffington is precisely acting to impoverish bloggers and create a blogger-plantation–where her slaves work to build her fortune.
I love the irony here. The Republicans are evil for profiting off the backs of the poor and middle class, but she's not?
Oh, she's evil sure. But it's mostly legal to be evil. Since courts base or are at least supposed to base their judgments on the law rather than ethical intuitions, that means Tanisi loses. I can agree with everything in this comment and still think that Tanisi doesn't deserve to have the courts award him anything.
The law simply doesn't do what he wants it to do. End of story.
posted by valkyryn at 9:14 AM on April 13, 2011
Oh, she's evil sure. But it's mostly legal to be evil. Since courts base or are at least supposed to base their judgments on the law rather than ethical intuitions, that means Tanisi loses. I can agree with everything in this comment and still think that Tanisi doesn't deserve to have the courts award him anything.
The law simply doesn't do what he wants it to do. End of story.
posted by valkyryn at 9:14 AM on April 13, 2011
Oh, I don't disagree that her evilness is apparently legal. What I would like to see is Ms. Huffington voluntarily putting her money where her mouth is and dividing the riches she made from the Huffington Post fairly among the contributors. Of course, there is no chance of that happening.
It angers me so when people claim to be progressive when it suits them politically (and doesn't cost them any money) but in fact are personally as bad or worse than the people they're railing against (hi Rahm!). The Democratic Party, if it has any sense of justice, should ride her out of town on a rail. But of course, there's no chance of that happening either.
posted by Jess the Mess at 9:28 AM on April 13, 2011 [2 favorites]
It angers me so when people claim to be progressive when it suits them politically (and doesn't cost them any money) but in fact are personally as bad or worse than the people they're railing against (hi Rahm!). The Democratic Party, if it has any sense of justice, should ride her out of town on a rail. But of course, there's no chance of that happening either.
posted by Jess the Mess at 9:28 AM on April 13, 2011 [2 favorites]
The law simply doesn't do what he wants it to do. End of story.
That seems pretty sweeping. Do you dispute that there was a contract between the parties with an exchange of value? If fraud can be shown as the basis of that agreement doesn't the law provide for relief? Would that relief be based on restitution for an unjust enrichment?
I'm pretty sure the law does actually do this. It may he difficult to prove. However one big problem is going to be all these emails and side conversations between the bloggers and Huffington Post execs. Was there a written agreement, an implied agreement, what paper was signed and what material facts were represented to editors and bloggers and when were they presented. Were those true facts or lies intentionally communicated for purposes of taking advantage of the writers.
posted by humanfont at 10:57 AM on April 13, 2011 [1 favorite]
That seems pretty sweeping. Do you dispute that there was a contract between the parties with an exchange of value? If fraud can be shown as the basis of that agreement doesn't the law provide for relief? Would that relief be based on restitution for an unjust enrichment?
I'm pretty sure the law does actually do this. It may he difficult to prove. However one big problem is going to be all these emails and side conversations between the bloggers and Huffington Post execs. Was there a written agreement, an implied agreement, what paper was signed and what material facts were represented to editors and bloggers and when were they presented. Were those true facts or lies intentionally communicated for purposes of taking advantage of the writers.
posted by humanfont at 10:57 AM on April 13, 2011 [1 favorite]
Slave labour is a commonly used term that means free or exploited labour, or at least it is in the UK. I obviously don't literally mean slave labour.
At least from a US context, your referring to slave labor did seem rather wrong to me too. Do you describe a group of Royal National Lifeboat Institution or St John Ambulance volunteers as slave labor? The term might extend to more broad forms of exploited labor than literal slavery, but certainly it goes beyond free labor.
In short, describing a bunch of journalists, activists, academics, and pundits who are almost exclusively well educated, upper middle class or above in the wealthiest country in the world, sitting in their climate controlled homes and offices, with the ability to do as much or as little work as they wish at any schedule they choose as slaves rubs me rather the wrong way.
She profited because these people gave her their writing for free. I'm ok with that. The law is perfectly happy to permit you to make a bad business deal and to hold you to that deal when you regret your decision later. These folks are still getting paid serious money to not operate a professional basketball team. The only way this suit has any merit is if HuffPo actually deceived its contributors in a material way as to the nature of their arrangement. Where was the deception?
posted by zachlipton at 10:58 AM on April 13, 2011
At least from a US context, your referring to slave labor did seem rather wrong to me too. Do you describe a group of Royal National Lifeboat Institution or St John Ambulance volunteers as slave labor? The term might extend to more broad forms of exploited labor than literal slavery, but certainly it goes beyond free labor.
In short, describing a bunch of journalists, activists, academics, and pundits who are almost exclusively well educated, upper middle class or above in the wealthiest country in the world, sitting in their climate controlled homes and offices, with the ability to do as much or as little work as they wish at any schedule they choose as slaves rubs me rather the wrong way.
She profited because these people gave her their writing for free. I'm ok with that. The law is perfectly happy to permit you to make a bad business deal and to hold you to that deal when you regret your decision later. These folks are still getting paid serious money to not operate a professional basketball team. The only way this suit has any merit is if HuffPo actually deceived its contributors in a material way as to the nature of their arrangement. Where was the deception?
posted by zachlipton at 10:58 AM on April 13, 2011
In short, describing a bunch of journalists, activists, academics, and pundits who are almost exclusively well educated, upper middle class or above in the wealthiest country in the world, sitting in their climate controlled homes and offices, with the ability to do as much or as little work as they wish at any schedule they choose as slaves rubs me rather the wrong way.
Or, you know, freelancers struggling to make a living who are desperate enough to make a poor business decision in the hopes that they will benefit from the exposure.
posted by Jess the Mess at 11:19 AM on April 13, 2011 [1 favorite]
Or, you know, freelancers struggling to make a living who are desperate enough to make a poor business decision in the hopes that they will benefit from the exposure.
posted by Jess the Mess at 11:19 AM on April 13, 2011 [1 favorite]
Or, you know, freelancers struggling to make a living who are desperate enough to make a poor business decision in the hopes that they will benefit from the exposure.
They could, of course, get real jobs. It may be an unpleasant option, but it's still an option. The law does not exist to guarantee that freelancers can make a living.
posted by valkyryn at 12:13 PM on April 13, 2011
They could, of course, get real jobs. It may be an unpleasant option, but it's still an option. The law does not exist to guarantee that freelancers can make a living.
posted by valkyryn at 12:13 PM on April 13, 2011
Do you dispute that there was a contract between the parties with an exchange of value?
Sure. And both parties got exactly what they bargained for.
If fraud can be shown as the basis of that agreement doesn't the law provide for relief? Would that relief be based on restitution for an unjust enrichment?
Again, sure. But good luck with that. What, exactly, is the fraud here? HuffPo promised to host this guy's blog and pay him zero dollars in exchange for some vaguely-defined "exposure." If anything, all Tanisi can get is clearer traffic stats. There was never any revenue-sharing agreement, so money shouldn't be an available remedy, as it wasn't a bargained-for benefit.
However one big problem is going to be all these emails and side conversations between the bloggers and Huffington Post execs. Was there a written agreement, an implied agreement, what paper was signed and what material facts were represented to editors and bloggers and when were they presented.
Facts are always an issue here, but having read the complaint, there is no allegation that Tanisi was ever promised any money at all. Which is exactly what he got: no money at all.
Were those true facts or lies intentionally communicated for purposes of taking advantage of the writers.
And what, exactly, would the lie be? A lie would be HuffPo promising to pay money and then not paying money. What happened is that HuffPo promised no money and paid no money. That's no fraud. Nor did they misrepresent what they were hoping to gain: everybody knows that HuffPo site exists because it makes money for its operators. Tanisi knew this. He knew he was writing for free so that other people could make money. Knew it the whole time. Now he's pissed because he didn't realize how much money was on the table.
Sorry, bub.
The only argument I can see having any kind of traction here is that there actually wasn't a contract, i.e. there was no meeting of the minds about the nature of the goods and services being exchanged. There is at least a potential argument here, as Tanisi could theoretically argue that he wasn't aware that his services were worth so much. But the counter to that is that he was giving them away. It's one thing to drastically undervalue your services, believing they are not worth as much as they are. But he asked for zero dollars. It's going to be difficult to turn that into an argument that he should get paid anything at all.
posted by valkyryn at 12:23 PM on April 13, 2011
Sure. And both parties got exactly what they bargained for.
If fraud can be shown as the basis of that agreement doesn't the law provide for relief? Would that relief be based on restitution for an unjust enrichment?
Again, sure. But good luck with that. What, exactly, is the fraud here? HuffPo promised to host this guy's blog and pay him zero dollars in exchange for some vaguely-defined "exposure." If anything, all Tanisi can get is clearer traffic stats. There was never any revenue-sharing agreement, so money shouldn't be an available remedy, as it wasn't a bargained-for benefit.
However one big problem is going to be all these emails and side conversations between the bloggers and Huffington Post execs. Was there a written agreement, an implied agreement, what paper was signed and what material facts were represented to editors and bloggers and when were they presented.
Facts are always an issue here, but having read the complaint, there is no allegation that Tanisi was ever promised any money at all. Which is exactly what he got: no money at all.
Were those true facts or lies intentionally communicated for purposes of taking advantage of the writers.
And what, exactly, would the lie be? A lie would be HuffPo promising to pay money and then not paying money. What happened is that HuffPo promised no money and paid no money. That's no fraud. Nor did they misrepresent what they were hoping to gain: everybody knows that HuffPo site exists because it makes money for its operators. Tanisi knew this. He knew he was writing for free so that other people could make money. Knew it the whole time. Now he's pissed because he didn't realize how much money was on the table.
Sorry, bub.
The only argument I can see having any kind of traction here is that there actually wasn't a contract, i.e. there was no meeting of the minds about the nature of the goods and services being exchanged. There is at least a potential argument here, as Tanisi could theoretically argue that he wasn't aware that his services were worth so much. But the counter to that is that he was giving them away. It's one thing to drastically undervalue your services, believing they are not worth as much as they are. But he asked for zero dollars. It's going to be difficult to turn that into an argument that he should get paid anything at all.
posted by valkyryn at 12:23 PM on April 13, 2011
btw: Mayhill Fowler and many of the bloggers that Jay Rosen help score for Huffington for the 2008 elections are key to this case.
There was a recruiting process for those free bloggers. There was an editorial process for said bloggers. There was HUGE promoting of news scoops by said bloggers as in the case of Mayhill Fowler.
Again, this is not a labor case perse. It's a case around "Unjust Enrichment" based on "traffic and exposure" fraud. the "on the bus" bloggers could prove to be problematic to HuffPo's case.
posted by liza at 2:41 PM on April 13, 2011 [1 favorite]
There was a recruiting process for those free bloggers. There was an editorial process for said bloggers. There was HUGE promoting of news scoops by said bloggers as in the case of Mayhill Fowler.
Again, this is not a labor case perse. It's a case around "Unjust Enrichment" based on "traffic and exposure" fraud. the "on the bus" bloggers could prove to be problematic to HuffPo's case.
posted by liza at 2:41 PM on April 13, 2011 [1 favorite]
The lie was:
Your content has no value to us. That painting over there your mother told you was a Picasso is just a cheap knockoff. It has some sentimental value for me from my summers in Spain. How about I pay you $5 bucks, really its worthless. You can trust me I'm an expert.
Later I sell the painting for millions as an actual Picasso. I defrauded you. Huffpost presented themselves as digital media experts and used that position to steal the content. Then try sold it for $315 million in cash. They lied to get the content for free. Emails show that all along it was a cynical approach. They took affirmative action to hide the value to content creators and convince them they were just helping the liberal cause.
posted by humanfont at 2:52 PM on April 13, 2011 [1 favorite]
Your content has no value to us. That painting over there your mother told you was a Picasso is just a cheap knockoff. It has some sentimental value for me from my summers in Spain. How about I pay you $5 bucks, really its worthless. You can trust me I'm an expert.
Later I sell the painting for millions as an actual Picasso. I defrauded you. Huffpost presented themselves as digital media experts and used that position to steal the content. Then try sold it for $315 million in cash. They lied to get the content for free. Emails show that all along it was a cynical approach. They took affirmative action to hide the value to content creators and convince them they were just helping the liberal cause.
posted by humanfont at 2:52 PM on April 13, 2011 [1 favorite]
Huffpost presented themselves as digital media experts and used that position to steal the content. Then try sold it for $315 million in cash. They lied to get the content for free. Emails show that all along it was a cynical approach. They took affirmative action to hide the value to content creators and convince them they were just helping the liberal cause.
Where the lie there? Their recruitment process is a negotiation between author and publisher, just like any other. The publisher said "how about we pay you $0?" and the author said "sure! it's a deal" and that was that. HuffPo never presented themselves as a service to represent and advise their writers; they presented themselves as an online publisher, which is what they are. It could well be deceptive if HuffPo presented themselves as "look, we're poor and broke and the site loses lots of money so we can't afford to pay you. Look at me I'm wearing sackcloth and eating ramen here" when they were really making money, but I can't see where HuffPo ever claimed they were operating some kind of charitable endeavor.
When you negotiate, you don't tell the other side what they are worth to you. That's the entire point of a negotiation; you hide your own valuation of what something is worth to you while attempting to determine your counter-party's valuation. Car dealerships don't say "we bought this car from the manufacturer for $26K, the floor mats cost us $5 each, and our overhead percentage is 5%, so $27,320 is the price for this car without any profit for us," at least not any dealerships that want to stay in business.
So why did HuffPo have an obligation to tell the contributors exactly how much their content was worth to them? Certainly the writers should have known their writing wasn't worthless, or why would HuffPo be spending so much energy to recruit new writers and to pay their own employees? Were these writers, selected because of their reputations as intelligent intellectual thinkers, utterly unaware that money can be exchanged for services, including writing services, and that media companies can be worth money? And why didn't any of these smart writers figure out that HuffPo might well be a profit-making enterprise when the company took VC funding and analysts were valuing the business at $60+ million?
Let's say you sell my your house for $300K, but I think a property developer will want to acquire the land soon as part of a larger development. I don't tell you this part, because my goal is to make money. I wind up selling it for $800,000K. Did I take advantage of you? Possibly. Can you sue me because you regret your decision to sell for such a small sum? Certainly not. Your recourse is to complain to me, refuse to do business with me in the future, and to tell all your friends that you hate me. You don't get to sue and claim that I deceived you because I didn't tell you about the developer, and the HuffPo authors don't get to sue and claim that they were deceived because no one ever told them that businesses can make money.
posted by zachlipton at 3:44 PM on April 13, 2011
Where the lie there? Their recruitment process is a negotiation between author and publisher, just like any other. The publisher said "how about we pay you $0?" and the author said "sure! it's a deal" and that was that. HuffPo never presented themselves as a service to represent and advise their writers; they presented themselves as an online publisher, which is what they are. It could well be deceptive if HuffPo presented themselves as "look, we're poor and broke and the site loses lots of money so we can't afford to pay you. Look at me I'm wearing sackcloth and eating ramen here" when they were really making money, but I can't see where HuffPo ever claimed they were operating some kind of charitable endeavor.
When you negotiate, you don't tell the other side what they are worth to you. That's the entire point of a negotiation; you hide your own valuation of what something is worth to you while attempting to determine your counter-party's valuation. Car dealerships don't say "we bought this car from the manufacturer for $26K, the floor mats cost us $5 each, and our overhead percentage is 5%, so $27,320 is the price for this car without any profit for us," at least not any dealerships that want to stay in business.
So why did HuffPo have an obligation to tell the contributors exactly how much their content was worth to them? Certainly the writers should have known their writing wasn't worthless, or why would HuffPo be spending so much energy to recruit new writers and to pay their own employees? Were these writers, selected because of their reputations as intelligent intellectual thinkers, utterly unaware that money can be exchanged for services, including writing services, and that media companies can be worth money? And why didn't any of these smart writers figure out that HuffPo might well be a profit-making enterprise when the company took VC funding and analysts were valuing the business at $60+ million?
Let's say you sell my your house for $300K, but I think a property developer will want to acquire the land soon as part of a larger development. I don't tell you this part, because my goal is to make money. I wind up selling it for $800,000K. Did I take advantage of you? Possibly. Can you sue me because you regret your decision to sell for such a small sum? Certainly not. Your recourse is to complain to me, refuse to do business with me in the future, and to tell all your friends that you hate me. You don't get to sue and claim that I deceived you because I didn't tell you about the developer, and the HuffPo authors don't get to sue and claim that they were deceived because no one ever told them that businesses can make money.
posted by zachlipton at 3:44 PM on April 13, 2011
Was Tasini approached by HuffPo or did he come to them? I've never heard of anyone being turned down who wanted to blog for the Huffington Post. Some people were "invited" but in my experience, it was a very casual invitation.
posted by Ideefixe at 4:53 PM on April 13, 2011
posted by Ideefixe at 4:53 PM on April 13, 2011
What is Metafilter if not "aggregation and unpaid contributors"?
posted by joannemullen at 6:31 PM on April 13, 2011
posted by joannemullen at 6:31 PM on April 13, 2011
HuffPo never presented themselves as a service to represent and advise their writers; they presented themselves as an online publisher, which is what they are.
According to the plaintiff the Huffingtonpost did not represent themselves as an online publisher specifically see #49 "despite promoting itself as a forum for ideas and news, always intended to derive revenues from the content provided by, and at the expense of, Plaintiff and the Classes."
When you negotiate, you don't tell the other side what they are worth to you. That's the entire point of a negotiation; you hide your own valuation of what something is worth to you while attempting to determine your counter-party's valuation.
In every negotiation there is a line between omitting information, refusing to disclose certain things, an outright lying to your counter party and creating a fraud, misrepresentation or failing to act in good faith. The same is true for marketing campaigns. There are laws about deceptive business practices which try to define where the line is between deception and fraud. The plaintiff will attempt to show in their lawsuit that HuffPo's editors and owners crossed the line.
Was Tasini approached by HuffPo or did he come to them?
Per the lawsuit he was personally invited by Ariana and invited to various official functions / parties as a celebrity blogger.
Let's say you sell my your house for $300K, but I think a property developer will want to acquire the land soon as part of a larger development. I don't tell you this part, because my goal is to make money. I wind up selling it for $800,000K. Did I take advantage of you? Possibly. Can you sue me because you regret your decision to sell for such a small sum? Certainly not.
Both the original homeowner and the developer could sue you and potentially recover damages. When and how did you learn that the developers were going to acquire the land? Was this pure speculation or did you have a knowledge of a trade secret which you misappropriated. Did you make any false statements, engage in the misrepresentation of key facts, or commit the elements of fraud? Was there a fiduciary relationship between you and the seller (such as if you were their real estate agent in the transaction). Was the seller especially old or mentally incapacitated in such a way that the contract could be challenged. Did you approach the seller an make offer, or was the house already listed and for sale? Was your involvement in the transaction anyway tortuous interference with the developers business? Depending on how you answer these questions would determine if you had a strong defense or were in deep trouble.
After talking with your lawyers and insurance company you may decide to settle with the developer and original seller on terms that still profit you, but put the deal on more fair terms with the counter parties, lest you risk exposure of your assets beyond your profit in the transaction. You might even be totally in the right as far as the deals go, but you may weigh the legal fees of a defense and decide to settle. Your may even end up having to settle for insurance purposes.
posted by humanfont at 7:17 PM on April 13, 2011 [1 favorite]
According to the plaintiff the Huffingtonpost did not represent themselves as an online publisher specifically see #49 "despite promoting itself as a forum for ideas and news, always intended to derive revenues from the content provided by, and at the expense of, Plaintiff and the Classes."
When you negotiate, you don't tell the other side what they are worth to you. That's the entire point of a negotiation; you hide your own valuation of what something is worth to you while attempting to determine your counter-party's valuation.
In every negotiation there is a line between omitting information, refusing to disclose certain things, an outright lying to your counter party and creating a fraud, misrepresentation or failing to act in good faith. The same is true for marketing campaigns. There are laws about deceptive business practices which try to define where the line is between deception and fraud. The plaintiff will attempt to show in their lawsuit that HuffPo's editors and owners crossed the line.
Was Tasini approached by HuffPo or did he come to them?
Per the lawsuit he was personally invited by Ariana and invited to various official functions / parties as a celebrity blogger.
Let's say you sell my your house for $300K, but I think a property developer will want to acquire the land soon as part of a larger development. I don't tell you this part, because my goal is to make money. I wind up selling it for $800,000K. Did I take advantage of you? Possibly. Can you sue me because you regret your decision to sell for such a small sum? Certainly not.
Both the original homeowner and the developer could sue you and potentially recover damages. When and how did you learn that the developers were going to acquire the land? Was this pure speculation or did you have a knowledge of a trade secret which you misappropriated. Did you make any false statements, engage in the misrepresentation of key facts, or commit the elements of fraud? Was there a fiduciary relationship between you and the seller (such as if you were their real estate agent in the transaction). Was the seller especially old or mentally incapacitated in such a way that the contract could be challenged. Did you approach the seller an make offer, or was the house already listed and for sale? Was your involvement in the transaction anyway tortuous interference with the developers business? Depending on how you answer these questions would determine if you had a strong defense or were in deep trouble.
After talking with your lawyers and insurance company you may decide to settle with the developer and original seller on terms that still profit you, but put the deal on more fair terms with the counter parties, lest you risk exposure of your assets beyond your profit in the transaction. You might even be totally in the right as far as the deals go, but you may weigh the legal fees of a defense and decide to settle. Your may even end up having to settle for insurance purposes.
posted by humanfont at 7:17 PM on April 13, 2011 [1 favorite]
According to the plaintiff the Huffingtonpost did not represent themselves as an online publisher specifically see #49 "despite promoting itself as a forum for ideas and news, always intended to derive revenues from the content provided by, and at the expense of, Plaintiff and the Classes."
Yep. And they always intended not to pay their writers. Everybody knew that. That wasn't a misrepresentation.
Both the original homeowner and the developer could sue you and potentially recover damages.
Sure they could. And they'd lose on a motion for summary judgment, if not an outright motion to dismiss for failure to state a claim.
Furthermore, I'm not aware of any insurance products that would cover an action like this. Both contractual disputes and intentional acts are specifically excluded from liability insurance policies.
I don't think you know as much about this stuff as you seem to think you do. Let's break it down:
- Trade secrets are generally restricted to things which would otherwise be patentable, but which a company chooses to keep secret so that they can exploit it for longer than the term of a patent. We're talking "formula, pattern, compilation, program, device, method, technique, or process". This isn't going to be implicated either in the instant HuffPo case or the developer hypothetical you're talking about, as a particular bit of information about a particular transaction, even one another party would rather be kept secret, is not actually a "trade secret".
- Misrepresentation involves making positive statements which distort the truth. Failing to make a statement, i.e. keeping back a key bit of information, may be actionable on other grounds, but it isn't misrepresentation, provided all other statements are true. Each party is basically responsible for either doing its own research or asking the right questions. You need to answer questions truthfully, but you aren't under any general obligation to do the other side's homework.
- Fraud, similarly, involves "misrepresentation" of a material fact. See above. If the seller specifically asked if the land was up for development and the buyer said "No," yeah, that'd be fraud. But if the seller doesn't ask, the buyer doesn't have to volunteer the information. This kind of arbitrage happens every day. And in the HuffPo case, there was never any question that HuffPo was going to use content for which they had not paid to make money. Everybody always knew that.
- Tortious interference involves deliberately interfering with existing contractual or business relationship. Not even remotely applicable to the HuffPo case, and it would only be applicable in the development hypothetical if the seller and the developer already had a contract which the buyer caused the seller to breach.
- Whether or not the house was already listed is completely irrelevant. I can't think of a set of facts under which it would make a difference. People buy properties which aren't listed as being for sale all the time. It's called "making an unsolicited offer." Nothing wrong with that.
I don't know what you do for a living, but I hope it isn't the practice of law, because those terms just don't mean what you seem to think they mean.
posted by valkyryn at 2:33 AM on April 14, 2011 [1 favorite]
Yep. And they always intended not to pay their writers. Everybody knew that. That wasn't a misrepresentation.
Both the original homeowner and the developer could sue you and potentially recover damages.
Sure they could. And they'd lose on a motion for summary judgment, if not an outright motion to dismiss for failure to state a claim.
Furthermore, I'm not aware of any insurance products that would cover an action like this. Both contractual disputes and intentional acts are specifically excluded from liability insurance policies.
I don't think you know as much about this stuff as you seem to think you do. Let's break it down:
- Trade secrets are generally restricted to things which would otherwise be patentable, but which a company chooses to keep secret so that they can exploit it for longer than the term of a patent. We're talking "formula, pattern, compilation, program, device, method, technique, or process". This isn't going to be implicated either in the instant HuffPo case or the developer hypothetical you're talking about, as a particular bit of information about a particular transaction, even one another party would rather be kept secret, is not actually a "trade secret".
- Misrepresentation involves making positive statements which distort the truth. Failing to make a statement, i.e. keeping back a key bit of information, may be actionable on other grounds, but it isn't misrepresentation, provided all other statements are true. Each party is basically responsible for either doing its own research or asking the right questions. You need to answer questions truthfully, but you aren't under any general obligation to do the other side's homework.
- Fraud, similarly, involves "misrepresentation" of a material fact. See above. If the seller specifically asked if the land was up for development and the buyer said "No," yeah, that'd be fraud. But if the seller doesn't ask, the buyer doesn't have to volunteer the information. This kind of arbitrage happens every day. And in the HuffPo case, there was never any question that HuffPo was going to use content for which they had not paid to make money. Everybody always knew that.
- Tortious interference involves deliberately interfering with existing contractual or business relationship. Not even remotely applicable to the HuffPo case, and it would only be applicable in the development hypothetical if the seller and the developer already had a contract which the buyer caused the seller to breach.
- Whether or not the house was already listed is completely irrelevant. I can't think of a set of facts under which it would make a difference. People buy properties which aren't listed as being for sale all the time. It's called "making an unsolicited offer." Nothing wrong with that.
I don't know what you do for a living, but I hope it isn't the practice of law, because those terms just don't mean what you seem to think they mean.
posted by valkyryn at 2:33 AM on April 14, 2011 [1 favorite]
i don't doubt that huffington is in the right in a strict legal sense. but i get how bloggers could have bought into the idea (helped by huffington's cheerleading) that they were contributing to a new model of publication, something insulated from the cycle of corporate media ownership that many of us assumed HP itself was resisting. not that my assumptions were correct or are how things should be, but i was surprised on hearing about the AOL deal because it seemed so counter to the community-driven idea they were appealing to. it strikes me as how i would feel if i put in a lot of volunteer time helping build up a non-profit and then saw it sold off for profit to a corporation.
i haven't paid much attention to HP lately; at some point they seemed to go for a trashiness that undermined the tone i had thought they were going for. i pulled out somewhere around the time they presented an article with the sole aim of making fun of laura bush's author photo. it embarrassed me the way i suppose rational conservatives are (or should be) embarrassed by foxnews. it kind of told me that they were not confident enough in the strength of progressive ideals not to go down that road.
posted by fallacy of the beard at 7:06 AM on April 14, 2011 [1 favorite]
i haven't paid much attention to HP lately; at some point they seemed to go for a trashiness that undermined the tone i had thought they were going for. i pulled out somewhere around the time they presented an article with the sole aim of making fun of laura bush's author photo. it embarrassed me the way i suppose rational conservatives are (or should be) embarrassed by foxnews. it kind of told me that they were not confident enough in the strength of progressive ideals not to go down that road.
posted by fallacy of the beard at 7:06 AM on April 14, 2011 [1 favorite]
Valkryn are you suggesting that none of these issues could hypothetically have arisen in a hypothetical real estate transaction resulting in hypothetical litigation and that insurance would never apply in any scenario?
In the Huffpo matter these issues are not the issues. My point above in discussing that hypothetical scenario of a real estate transaction was that assertions that one can't be sued are generally incorrect and details matter a lot wrt to how protected you are in court. In my experience the best lawyers don't reach a conclusion until they have thoroughly probed the issues and facts. When presented with a broad hypothetical it seems best to point a few of the many issues that might be relevant or just to say it depends. Simply dismissing it as they can't sue you is usually wrong.
My approach in this thread has been to avoid reaching a conclusion because we only have the initial complaint and then I have my web savy understanding of HuffPo. Go through the complaint by Tasini. There are two causes of action "deceptive business practices" and "unjust enrichment". I'm fairly certain that tw second cause depends on showing the first. Unjust enrichment would be the basis of how much the plaintiffs are entitlted to.
Tasini's lawyers appear to argue some specifics regarding the content author-Huffpo agreement were lies, or met the legal standard of misrepresentation or illegally deceptive business practices under NY law.
Do you know what Arianna said to Tasini as they discussed their relationship and what evidence exists of these meetings?. Do you even know if there was a written contract between the parties? Are you certain that the emails between Huffington post employees and the writers are free from any misrepresentation, or creation of secondary agreements?
Consider some scenarios: arianna sends an email saying look this is really just about fighting that right wing media. I'm not making making any money here, obviously we can't pay you but I'd love for you to help the cause.
Later a writer says: I see your running ads all over the place can you tell me if my articles are getting any views, maybe we should talk about compensation. The editor replies: no we don't even track that stuff. Meanwhile there are reams of emails where it is apparent they were tracking the views and knew exactly why they were making. There is even an email from the ad department congratulating the editor on finding that Tasani guy cause his last article drew a million page views.
Why are you so confident at this point that there is no case? Are you just jumping to conclusions based on your assumptions about tha agreements and an emotional reaction to the lawsuit?
posted by humanfont at 7:11 AM on April 14, 2011 [2 favorites]
In the Huffpo matter these issues are not the issues. My point above in discussing that hypothetical scenario of a real estate transaction was that assertions that one can't be sued are generally incorrect and details matter a lot wrt to how protected you are in court. In my experience the best lawyers don't reach a conclusion until they have thoroughly probed the issues and facts. When presented with a broad hypothetical it seems best to point a few of the many issues that might be relevant or just to say it depends. Simply dismissing it as they can't sue you is usually wrong.
My approach in this thread has been to avoid reaching a conclusion because we only have the initial complaint and then I have my web savy understanding of HuffPo. Go through the complaint by Tasini. There are two causes of action "deceptive business practices" and "unjust enrichment". I'm fairly certain that tw second cause depends on showing the first. Unjust enrichment would be the basis of how much the plaintiffs are entitlted to.
Tasini's lawyers appear to argue some specifics regarding the content author-Huffpo agreement were lies, or met the legal standard of misrepresentation or illegally deceptive business practices under NY law.
Do you know what Arianna said to Tasini as they discussed their relationship and what evidence exists of these meetings?. Do you even know if there was a written contract between the parties? Are you certain that the emails between Huffington post employees and the writers are free from any misrepresentation, or creation of secondary agreements?
Consider some scenarios: arianna sends an email saying look this is really just about fighting that right wing media. I'm not making making any money here, obviously we can't pay you but I'd love for you to help the cause.
Later a writer says: I see your running ads all over the place can you tell me if my articles are getting any views, maybe we should talk about compensation. The editor replies: no we don't even track that stuff. Meanwhile there are reams of emails where it is apparent they were tracking the views and knew exactly why they were making. There is even an email from the ad department congratulating the editor on finding that Tasani guy cause his last article drew a million page views.
Why are you so confident at this point that there is no case? Are you just jumping to conclusions based on your assumptions about tha agreements and an emotional reaction to the lawsuit?
posted by humanfont at 7:11 AM on April 14, 2011 [2 favorites]
In short, describing a bunch of journalists, activists, academics, and pundits who are almost exclusively well educated, upper middle class or above in the wealthiest country in the world
Er, what? This is just ridiculous inverse snobbery. Because these people live in a comparatively wealthy country it's OK not to pay them? What kind of ridiculous logic is that? How do you want them to live? On America's notoriously generous welfare hand outs?
Everyone has to make a living wage and freelance writers are as deserving of fair treatment as anyone else.
posted by Summer at 7:52 AM on April 14, 2011 [1 favorite]
Er, what? This is just ridiculous inverse snobbery. Because these people live in a comparatively wealthy country it's OK not to pay them? What kind of ridiculous logic is that? How do you want them to live? On America's notoriously generous welfare hand outs?
Everyone has to make a living wage and freelance writers are as deserving of fair treatment as anyone else.
posted by Summer at 7:52 AM on April 14, 2011 [1 favorite]
Er, what? This is just ridiculous inverse snobbery. Because these people live in a comparatively wealthy country it's OK not to pay them? What kind of ridiculous logic is that? How do you want them to live? On America's notoriously generous welfare hand outs?
I absolutely never said these people shouldn't make a living or that I somehow look down on them because they are writers. I was simply saying calling them "slaves" is a very strong classification of human exploitation, and I suspect that many of the actual slaves in the world would gladly switch places with a HuffPo blogger. The writers enjoyed certain employee benefits that slaves lack, such as the ability to come and go as they please and the right to quit at any time. An arrangement where you work as much or as little as you want on whatever schedule you choose from the comfort of your home, even if you don't get paid, is still a lot better than one where aren't paid and you get beaten if you don't follow the boss's orders, are physically or constructively prevented from quitting or even leaving the premises, and you're forced to work as much and as hard as you can.
Not every potentially unfair labor practice is slavery. Of course, slaves do get food, so YMMV.
posted by zachlipton at 8:18 AM on April 14, 2011
I absolutely never said these people shouldn't make a living or that I somehow look down on them because they are writers. I was simply saying calling them "slaves" is a very strong classification of human exploitation, and I suspect that many of the actual slaves in the world would gladly switch places with a HuffPo blogger. The writers enjoyed certain employee benefits that slaves lack, such as the ability to come and go as they please and the right to quit at any time. An arrangement where you work as much or as little as you want on whatever schedule you choose from the comfort of your home, even if you don't get paid, is still a lot better than one where aren't paid and you get beaten if you don't follow the boss's orders, are physically or constructively prevented from quitting or even leaving the premises, and you're forced to work as much and as hard as you can.
Not every potentially unfair labor practice is slavery. Of course, slaves do get food, so YMMV.
posted by zachlipton at 8:18 AM on April 14, 2011
I'd thought we'd already got past the 'not literally slaves' bit?
posted by Summer at 8:39 AM on April 14, 2011
posted by Summer at 8:39 AM on April 14, 2011
Is there a word for "free slave" ?
posted by programmes-tv at 9:01 AM on April 14, 2011
posted by programmes-tv at 9:01 AM on April 14, 2011
Why are you so confident at this point that there is no case?
Because I did read the complaint, and even if every single fact in the complaint were exactly as it is alleged the plaintiffs still would not deserve any money.
If I were lead counsel for the defense, I'd file a 12(b)(6) motion immediately.
posted by valkyryn at 10:36 AM on April 14, 2011
Because I did read the complaint, and even if every single fact in the complaint were exactly as it is alleged the plaintiffs still would not deserve any money.
If I were lead counsel for the defense, I'd file a 12(b)(6) motion immediately.
posted by valkyryn at 10:36 AM on April 14, 2011
Is there a word for "free slave" ?
I don't know. But as I explained previously there is a colloquial use of the phrase 'slave labour' that means unpaid or exploited workers. I said it up there ^^^^
posted by Summer at 12:05 PM on April 14, 2011
I don't know. But as I explained previously there is a colloquial use of the phrase 'slave labour' that means unpaid or exploited workers. I said it up there ^^^^
posted by Summer at 12:05 PM on April 14, 2011
valkyryn: If I were lead counsel for the defense, I'd file a 12(b)(6) motion immediately.
You should email Huff Po with that legal advice, I'm sure they'd be happy to take your advice and use it.*
(*Don't expect any compensation though, of course, even if you did just save them some legal expenses. Cos HuffPo is fighting the good fight, you see, and what they do is from the goodness of their civic minded idealism and principled beliefs. Money and corporate media mergers, the leveraging and exploitation of celebrities and experts in various fields and a whole community adding content and value to there property and driving traffic to it, is they very last thing they care about....unless of course you have a spare $300 mil sitting around, and then they're all ears.)
posted by Skygazer at 3:40 PM on April 14, 2011 [1 favorite]
You should email Huff Po with that legal advice, I'm sure they'd be happy to take your advice and use it.*
(*Don't expect any compensation though, of course, even if you did just save them some legal expenses. Cos HuffPo is fighting the good fight, you see, and what they do is from the goodness of their civic minded idealism and principled beliefs. Money and corporate media mergers, the leveraging and exploitation of celebrities and experts in various fields and a whole community adding content and value to there property and driving traffic to it, is they very last thing they care about....unless of course you have a spare $300 mil sitting around, and then they're all ears.)
posted by Skygazer at 3:40 PM on April 14, 2011 [1 favorite]
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posted by twsf at 6:15 PM on April 12, 2011