In 1991 a lawsuit filed by a freelance journalist was decided by the U.S. Supreme Court, which ruled that the New York Times owed money to independent writers it had published for reselling their work from its archives. This was a big deal ― in theory, anyway.
In fact, all it did was force publishers to get their lawyers to write bulletproof waivers for freelancers to sign. That waiver is a thing of wonder. In it, the writer relinquishes all rights, in perpetuity, to revenue beyond what was paid for initial publication, no matter the medium (including media not yet imagined), no matter where (on Earth, at sea or in outer space ― literally).
Writers routinely sign these waivers. They generally have no choice. Hence, the somber lesson of that landmark case: There is no right that a court can uphold that raw economic power cannot repeal.
The lead plaintiff in the ‘91 case was Jonathan Tasini, and he’s in the news again with a $105 million suit against Arianna Huffington. She’s the rich and resourceful political pundit who created a lively news site called Huffington Post and recently sold it to AOL for $315 million. HuffPost is a hugely popular site, albeit disheveled and slightly cheesy, and most of its content is either purloined (sorry, I mean “aggregated”) from real news outfits or written by unpaid contributors.
Tasini’s beef has to do with those contributors. He says HuffPost owes its success to the creative work of the unpaid and the unsung, an estimated 9,000 writers in all, and now that Arianna is putting an estimated $100 million of AOL’s money into her own pocketbook, they’re entitled to a little something in the tip jar.
HuffPost replies that it does have a sizable editorial staff that is paid (not that they’ll see any of the AOL cash), and as for the others: “The vast majority of our bloggers are thrilled to contribute. And we’re thrilled to have them. They flock to us ― as well as to other unpaid group blogs across the web ― to broadcast their views, not unlike writing an op-ed in a local paper.”
Tasini has drawn some support. The Newspaper Guild, the journalists’ union, called on its 26,000 members not to perform any more free work for HuffPost. Los Angeles Times columnist Tim Rutten likened HuffPost to “a galley rowed by slaves and commanded by pirates.” Dan Gillmor, journalist and Internet theorist, said Huffington should “cut a bunch of checks to a bunch of the most productive contributors on whose work she’s built a significant part of her new fortune.”
But much of the commentary sides with HuffPost. Slate’s Jack Shafer decried the rise of “a nation of Winklevosses” ― the brothers who accused Mark Zuckerberg of stealing the idea of Facebook from them ― “who file legal motion after legal motion every time a pot of money is spotted.” Others dispute the legal basis of the suit and deny that contributors are employees. Dylan Stableford, posting on the Wrap, said the suit “makes no sense,” and wonders why if the problem was years of unpaid labor, Tasini waited to sue until the sale.
Indeed, the suit is a long shot and might, if successful, establish some elastic notions of employment that could entangle the very online collaboration that makes the Internet so nimble and vibrant. But that only means some injustices courts can’t fix. There remains something deeply unfair in Arianna Huffington cashing in lavishly from a creation whose chief value was the work of thousands of people who will never see a dime from it.
True, some of the unpaid bloggers were compensated in other ways, as HuffPost notes, and used their postings to create micro-brands out of themselves, strut their stuff or audition for paying work elsewhere. But come on, the top recipient of that noncash compensation was Huffington herself, who rose from being an amusing talk-show presence to a media mini-mogul ― she now becomes AOL’s editorial chief ― on the backs of her HuffPost contributors. That’s why her career soared, and nobody’s suggesting she should leave her money on the table out of gratitude.
The fact is, working for free is nobody’s first choice. HuffPost took advantage of the desperation of some and the vanity of others, and has now turned a collective success into an individual fortune.
Yep, that’s how the system works. Sadly, there was a time, not long ago, when some technologists and visionaries imagined that the new culture of the Internet might be different ― based on free exchange of knowledge, a commitment to social betterment, principles of equitable sharing, and similar values superior to the greed and pillage of the old economy.
Jonathan Tasini, the dean of worthy and lost causes, reminds us how doomed that vision is.
By Edward Wasserman
Edward Wasserman is Knight professor of journalism ethics at Washington and Lee University. ― Ed.