The lawsuit filed Tuesday by Jonathan Tasini is so utterly without merit, and has been so thoroughly eviscerated in the media — including being ridiculed as the “dumbest lawsuit ever” — I am hesitant to take any time away from aggregating adorable kitten videos to respond.
But the suit touches on so many important issues about the current state of the media, the kittens will have to wait.
First, let’s look at the merits of the case:
There are none.
According to legal blogger and UCLA School of Law professor Eugene Volokh, “Tasini’s claim is a loser.” Slate’s Jack Shafer, decrying “that we’re becoming a nation of Winklevosses who file legal motion after legal motion every time a pot of money is spotted,” describes the lawsuit as “bunk” and “full of beans” and quotes Tasini’s own lawyer, conceding that there really is no there there: “The legal theory we’re going on is based in common law. This is not a statutory claim. … This is not a contract claim.”
That’s because no contract was broken. As Wall St. Cheat Sheet’s Damien Hoffman puts it:
In contract law, so long as two consenting parties agree to exchange legal services for reasonable consideration, the merits of the exchange are not for other parties to judge… In the case of the unpaid bloggers versus Huffington Post, the bloggers clearly received reasonable consideration in the form of publicity almost none of them could afford. How do I know? Because I contribute to the Huffington Post on occasion. Not for “free” as Tasini would like the ignorant to believe, but for the reasonable consideration of exposure. As a consenting adult, it is always up to me whether I want my content published at Huffington Post. Neither Arianna Huffington nor any other agents of the site have ever published my content without permission. They have also never pressured me in any way whatsoever to contribute my content to their site.
TechDirt’s Mike Masnick, who slices and dices the suit claim by claim, writes: “We may have set a new low for idiotic lawsuits.” He also compares Tasini to “a modern day village idiot” who “wants to pocket tens of millions of dollars that he did not earn, that he has no legal claim on, taking away from the hard work of Arianna Huffington and the investors and equity holders in the Huffington Post… The entire basis for the lawsuit is destroyed by the simple fact that Tasini and others made the choice to blog… “
Our group blog is part of our DNA. We are proud of the impact it has had as a platform that amplifies the voices of those who contribute to it, and enables a wide variety of people to reach larger audiences with their ideas, opinions, passions, books, movies, causes and candidacies.
We also employ a newsroom staffed by hundreds of full-time editors, writers and reporters. But while our staff writers have deadlines and commitments, as well as specific assignments, our bloggers can post as frequently or infrequently as they like — and write about whatever they like, whenever they like, or not at all. On top of that, they can crosspost their work on their own sites or elsewhere — they own the rights to their work and can repurpose it in any way they choose.
People blog on HuffPost for free for the same reason they go on cable TV shows every night for free: either because they are passionate about their ideas or because they have something to promote and want exposure to large and multiple audiences. Our bloggers are repeatedly invited on TV to discuss their posts and have received everything from paid speech opportunities and book deals to a TV show. As Glynnis MacNicol describes it on Business Insider: “What Arianna was providing was a place for writers to advertise their wares — a sort of classified for wannabe writers, except unlike the classifieds, she wasn’t charging.”
Bottom line: the vast majority of our bloggers are thrilled to contribute — and we’re thrilled to have them. Indeed, we are inundated with requests from people who want to use our platform. People are looking to join the party, not go home early.
The key point that the lawsuit completely ignores (or perhaps fails to understand) is how new media, new technologies, and the linked economy have changed the game, enabling millions of people to shift their focus from passive observation to active participation — from couch potato to self-expression. Writing blogs, sending tweets, updating your Facebook page, editing photos, uploading videos, and making music are options made possible by new technologies.
The same people who never question why someone would sit on a couch and watch TV for eight hours straight can’t understand why someone would find it rewarding to weigh in on the issues — great and small — that interest them. For free. They don’t understand the people who contribute to Wikipedia for free, who maintain their own blogs for free, who tweet for free, who constantly refresh and update their Facebook pages for free, and who want to help tell the stories of what is happening in their lives and in their communities… for free.
Free content — shared by people who want to connect, share their passions, and have their opinions heard — fuels much of what appears on Facebook, Twitter, Tumblr, Yelp, Foursquare, TripAdvisor, Flickr, and YouTube. As John Hrvatska, a commenter on the New York Times, wrote of the Tasini suit, “So, does this mean when YouTube was sold to Google that all the people who posted videos on YouTube should have been compensated?” (And Mr. Hrvatska no doubt contributed that original and well-reasoned thought without any expectation he’d be paid for it. He just wanted to weigh in.)
People contribute headlines, captions, and comments to Digg, Reddit, and Fark — for free, just as they utilise the platforms provided by Blogger, WordPress, and LiveJournal. And don’t forget about all the group blogs people contribute to — for free — including those on Global Voices, Daily Kos, GroundReport, CounterPunch, Open Salon, Firedoglake, CNET, and The Arena section of Politico.
Which brings me to the pile of bile Tasini unleashed along with his suit — specifically his claim that “the Huffington Post’s bloggers have essentially been turned into modern-day slaves on Arianna Huffington’s plantation.” Not only is this line of attack painfully unoriginal, mirroring as it does Tim Rutten’s comparison of HuffPost to a slave ship, it’s also, as was Rutten’s metaphor, deeply offensive. As Matt Welch, editor-in-chief of Reason, put it:
There is a key difference between “slavery” and “choosing voluntarily to write for free for one of the country’s most popular political websites.” For example, in slavery, it was not uncommon to be deprived of your freedom, separated from your family, whipped by an overseer, and raped by your boss.
Perhaps it’s fitting that Tasini filed his suit on April 12 — the 150th anniversary of the start of the Civil War.
And then there is the utter cynicism of Tasini’s suit. I’m looking at the proof of it right now: multiple emails (now collected in a legal file) Tasini has sent to me and the HuffPost blog team over the years, extolling the virtue and value of blogging on HuffPost. In one, he gushes over HuffPost’s ability to create buzz and drive traffic to his website. In another, he enthuses over the fact that the National Journal picked up and linked to one of his HuffPost blog posts. In a third, he recommends a friend who would like to blog on our site. Then there is an exchange over the treats he has sent to our blog editors to thank them for their help.
So, without a shadow of a doubt (legal or otherwise), Tasini understood and appreciated the value of having a post on HuffPost — and was only too happy to use our platform’s ability to get his work seen by a wider audience and raise his profile when he was running for office. Until, years later, when he suddenly decided that he’d changed his mind… and that instead of providing a boost to his career and political aspirations, posting on our site was actually just like being a slave on a plantation (I wonder if slaves ever sent thank-you treats to their masters).
It seems that AOL’s purchase of HuffPost suddenly opened his eyes to the fact that we are a business. I guess he’d missed the ads that appeared on the same page as his blog posts the 216 times he decided, of his own free will, to post something on our site.
I’ll give the last word to TechDirt’s Masnick: “This all could have been avoided had Jonathan Tasini not acted like the homeless guy on the corner who spits on your windshield, rubs it off ‘for free’ and then demands money for it.”
OK, back to those adorable kittens…