Lawsuit From Huffington Post Unpaid Contributors Gets the Boot – Tasini v. AOL

[Post by Venkat Balasubramani]

Tasini v. AOL, Inc., 11-CV-2472 (JGK) (S.D.N.Y.; Mar. 30, 2012)

I thought the Huffington Post lawsuit brought by unpaid contributors would present some interesting discussion about the arcane laws governing unpaid internships, but that’s not the case. The bloggers brought an ill-conceived lawsuit that the court smacks down.

The starting point for the court’s discussion is that the group of plaintiffs never expected compensation. Huffington “made clear . . . from the beginning that [Huffington Post] never intended to pay content providers such as plaintiffs for submissions.” There’s no dispute about this. In part through the submissions of Tasini and the other plaintiffs, Huffing Post generated a substantial amount of traffic and was acquired by AOL for around $315 million. Plaintiffs decided they wanted to get a piece of the pie and sued, asserting unjust enrichment and unfair business practices claims.

Unjust enrichment: The court surprisingly spends six pages talking about Plaintiffs’ unjust enrichment claim. Here’s the money quote:

No one forced the plaintiffs to give their work to the Huffington Post for publication and plaintiffs candidly admit that they did not expect compensation. The principles of equity and good conscience do not justify giving the plaintiffs a piece of the [pie] when they never expected to be paid, repeatedly agreed to the same bargain, and went into the arrangement with eyes wide open. . . . Quite simply, the plaintiffs offered a service and the defendants offered exposure in return, and the transaction occurred exactly as advertised. The defendants followed through on their end of the agreed-upon bargain. That the defendants ultimately profited more than the plaintiffs might have expected does not give the plaintiffs a right to change retroactively their clear, up-front agreement. That is an effort to change the rules of the game after the game has been played, and equity and good conscience require no such result.

Ouch.

Deceptive business practices: The court dismisses the unfair business practices claim as well, finding that plaintiffs failed to allege any harm to consumers. The product in question was the content that Huffington Post served to its readers, and Huffington didn’t make any misleading claims about this to the readers. Plaintiffs also tried to premise their unfair business practices claim on various alleged acts by Huffington Post: (1) hiding the amount of page views; (2) stating that traffic attributable to individual articles was unavailable when it was really available; (3) not notifying plaintiffs that their exposure was decreasing over time as additional content was added; (4) presenting Huffington Post as a “free forum . . . for ideas” when it was a product which over time built up substantial value; and (5) dissuading plaintiffs from creating their own websites. (These allegations brought to mind Cammarata v. Bright Imperial: “Free-to-Consumers Ad-Supported Website Isn’t Illegally Priced–Cammarata v. Bright Imperial.”)

If plaintiffs were country yokels living in the deep woods, or Amazon tribesmen, I could see their argument getting some traction, but they are people who signed up to contribute content. For free. They actively promoted the content through channels such as Facebook and Twitter. They are no strangers to the world of online content creation and distribution. (Indeed, the lead plaintiff sued the New York Times in a case that went to the US Supreme Court in 2001.) It’s not too surprising that the judge finds their arguments unpersuasive.

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Eric has posted about numerous cases where bloggers don’t have clean documentation around the underlying relationship. Huffington Post did not have that problem here and since the agreement made clear that there would be no compensation for the articles submitted by these authors, there’s no claim. (Note to self: if someone makes Eric a handsome offer for the blog, I won’t have much success asking for a piece of the pie.)

We don’t need a case to tell us, but this case makes the obvious point that blogs and websites can enter into relationships with contributors where no money changes hands.

[Employment lawyers: as always, please clue me in. I'm curious to know how this relates to the brouhaha over unpaid internships. In the meantime, blogs that take in content from unpaid contributors can rest easy. If you have clean documentation in place, you should be good to go.]