Jonathan Tasini’s name will always have a place in the history of media law because of his role in one of the most famous digital-age media lawsuits, Tasini v. New York Times. Now it looks like Tasini’s going for a second entry in the history books. Today, Tasini became the lead plaintiff in a proposed class-action suit against The Huffington Post and parent company AOL (NYSE: AOL), arguing that HuffPo’s habit of filling its pages with content from upaid bloggers is actually illegal and seeking $105 million in damages.
HuffPo has a paid newsroom staff of about 150, but the issue of the thousands of unpaid bloggers keeps coming up in public forums. Ariana Huffington has often said-and said again at pC2011-that exposure is the great reward for these unpaid bloggers.
But in his lawsuit, Tasini says that the content of unpaid bloggers on HuffPo is worth at least $105 million, and that the publication should be forced to pay that amount to them. The lawsuit goes on to say that HuffPo’s activity has actually hurt the whole market for online writers, “having a serious depressing effect on the value of intellectual content being created” by Tasini and other class members, which has hurt their ability “to support themselves as creators of high quality, engaging, digital content.”
The Huffington Post continues to assert that “it, alone, should be enriched by the valuable content” provided by Tasini and other bloggers — and that goes against the founders’ intent in writing the copyright clause of the constitution, according to the lawsuit. But Huffington Post doesn’t take exclusive rights to the content provided by unpaid bloggers, so Tasini still could have pursued other methods of making money off his content. Tasini wrote 216 articles for HuffPo between 2005 and 2011, which are all listed in the complaint.
Speaking of copyright, it’s worth noting that there’s no actual copyright claim in this lawsuit (embedded below). Rather, Tasini claims that AOL and HuffPo violated New York state laws on deceptive marketing laws. Tasini and his lawyers argue that HuffPo acted deceptively by not sharing how many page views their content got, and by “presenting themselves as a free forum for ideas while actually building a product with substantial value.”
HuffPo spokesman Mario Ruiz responded to the filing by email:
“The lawsuit is without merit. As we’ve said before, our bloggers use our platform – as well as other unpaid group blogs across the web — to connect and help their work be seen by as many people as possible. It’s the same reason hundreds of people go on TV shows to promote their views and ideas. HuffPost bloggers can cross-post their work on other sites, including their own. Aside from our group blog, to which thousands of people from around the world contribute, we operate a journalistic enterprise with hundreds of staff editors, writers, and reporters, all of whom have commensurate responsibilities — and all of whom are paid.”
Tasini’s suit against The New York Times became one of the most important digital-age copyright cases, but there are big differences between that lawsuit and this one. First and most obviously, Tasini sued the newspaper on behalf of paid freelancers. He argued that freelance writers need to get paid again when the NYT puts their work into databases like LexisNexis. That argument was successful in an appeals court, although it had the somewhat perverse effect of causing some newspapers to simply remove freelance content from those databases.
But Tasini’s argument here is wholly different. He has no copyright claim, and is instead arguing that HuffPo violated New York state laws on deceptive business practices. The proposed class in the HuffPo suit composed of thousands of bloggers and if the lawsuit were to be successful, it’s hard to see how it wouldn’t open up a Pandora’s box where other sites that rely on unpaid contributors to create value would be subject to litigation.
Facebook is perhaps the most famous of many web businesses that have created huge advertising value out of the free contributions of millions of contributors. Is it deceiving them? It seems like in this case Tasini’s lawyers will be hard pressed to show that he didn’t know what the deal was for HuffPo bloggers before he started writing for them.