A Nation of Winklevosses
The unpaid writers' lawsuit against the Huffington Post is bunk.
Today, an unpaid contributor to the Huffington Post filed a $105 million suit against the website; its new owner, AOL; and co-founders Arianna Huffington and Kenneth Lerer. The class action suit, filed by writer and union organizer Jonathan Tasini on behalf of all unpaid HuffPo contributors, proves that we're becoming a nation of Winklevosses who file legal motion after legal motion every time a pot of money is spotted.
The Winklevoss twins, Cameron and Tyler, are probably best known for being cast as the heavies in The Social Network, the fictional movie about Facebook. But this much is fact: In 2004, the twins sued Facebook founder Mark Zuckerberg for stealing their idea for Facebook among other things. In 2008, the twins reached a cash-and-stock settlement with Facebook now worth $200 million but later decided that figure was a lowball swindle and returned to court hoping to reopen their original case. Yesterday, the 9th Circuit Court rejected the brothers' request.
In his decision, Judge Alex Kozinski wrote that the "Winklevosses are not the first parties bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace. … At some point, litigation must come to an end. That point has now been reached."
If only we could accelerate the judicial process and give Judge Kozinski the first shot rather than the last at Tasini's suit so he could write, Tasini is not the first party bested by a businessman who then sought to gain through litigation what he was unable to achieve in the marketplace. Tasini's suit is so full of beans that Jesse Strauss, one of Tasini's lawyers, conceded as much when he spoke about the case to Forbes' Jeff Bercovici. "The legal theory we're going on is one based in common law," Strauss said. "This is not a statutory claim. … This is not a contract claim."
An estimated 9,000 unpaid contributors helped Arianna Huffington whitewash the HuffPo fence. The psychic rewards they reaped were so great that many of them returned to the site again and again to re-whitewash the fence for no payment, even though the profit-making ambitions of the site were self-evident. In 2009, for example, more than four years after the HuffPo was founded, the Los Angeles Timesreported that it had 89 full-time employees, 11 of whom were "devoted to producing original content," and that the company was grossing between $12 million and $16 million annually.
Tasini was one of the unpaid contributors who couldn't stop posting on the site. In his suit, Tasini reproduces the headlines, dates, and number of comments generated by all 216 of the HuffPo articles he wrote gratis between Dec. 5, 2005, and Feb. 10, 2011, just before the site was sold. Reduced to its essence, Tasini's legal argument is that because HuffPo may have profited from the free submissions in its recent sale for $315 million to AOL, he and other HuffPo volunteer writers deserve the back payment they were never promised.
What's Winklevossian about Tasini's suit is his timing. Just as the twins were happy with their settlement until they realized that the money pot had grown, Tasini helped himself to the HuffPo platform, no questions asked, until he saw a Brinks truck arrive with the AOL cash.
The lawsuit is only one part of Tasini's HuffPo strategy. Bercovici quotes him saying that he will make Arianna Huffington's life "a living hell" unless she shares the AOL bounty with unpaid contributors. "We are going to make Arianna Huffington a pariah in the progressive community," Tasini said. "No one will blog for her. She'll never [be invited to] speak. We will picket her home." On his website, Tasini calls Huffington a "Robber Baron CEO" who is "worse" than the Walton family of Wal-Mart. He calls for a "strike" against the site and states, "People writing for Huffington Post are scabs."
Of course, the proper time to negotiate payment for an article is before publication, not years or months after the fact, something Tasini's solidarity-with-labor shouting can't erase. For more and better legal analysis about the case against Huffington Post, see this excellent Columbia Journalism Reviewpiece from earlier this year by Lauren Kirchner. She writes:
The thousands of unpaid bloggers in question, of course, have signed no agreement with the site, and are under no obligation to submit their stories with any regularity. They do not receive assignments. If they have an idea for a post but then decide not to write it, they are not penalized by the site's editors in any way. This lack of regimentation in that editor/writer relationship would weaken the bloggers' (hypothetical) case against The Huffington Post.
I don't expect Tasini to accept my legal opinion any more than I expect the Winklevosses will take Judge Kozinski's advice to shove off. That's right, the twins' lawyer has already announced his intention to file a petition for rehearing en banc to overturn Kozinski.
Once the legal system laughs Tasini out of court—as I'm sure it will—I expect him to join forces with Cameron and Tyler. I hope they bill themselves as the Winklevoss Triplets.
But how long before they start suing one another? Send your predictions to email@example.com. Don't forget that I invented Twitter. (Email may be quoted by name in "The Fray," Slate's readers' forum; in a future article; or elsewhere unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)