Content isn't free, but neither is exposure.

There’s an interesting legal battle going on between a Huffington Post independent contributor Jonathan Tasini and AOL. I have an insightful perspective on this, but I don’t think either party is totally right. In this case, AOL isn’t doing anything sinister; both parties present some valid moral, ethical and legal arguments. More importantly, this presents a good discussion on the topic of ‘fair’ compensation in this digital world which is centered around content and distribution.

Sidenote: read the civil complaint between Tasini v. AOL. It’s well worth the read.

Just as my headline says, content and exposure are neither free nor cheap. In fact, content is immensely valuable especially when a publisher profits from display advertising on it. Likewise, when an independent contributor gains massive exposure from voluntarily creating content that is viewed by thousands, does pennies per page view really matter?

Before calling the lawsuit a complete fallacy like Ariana has vociferously defended in her public response, I want to bring up a moment of history that AOL has written. In fact, I eluded to this conflict when AOL acquired the Huffington Post on Twitter.

Archive of my Tweet about HuffPo compensation under AOL

In the nineties, America Online had a subsidiary known as AOL Community, Inc (ACI). This subsidiary was a key part in my online life when I was growing up on the web. When I was younger, I connected with “volunteer staff” that provided a helping-hand during my first online community experience. At the age of 12, I didn’t understand all the mechanics of the program, except that I looked up to them in a positive light on the once-leading Internet service. My curiosity led me down the path of researching the AOL Community Leader Program and my desire to become a part of it.

Somewhere between the time I was a consumer of ACI and the time I became an AOL employee, there was a class action lawsuit that happened. Again, not being involved at the time, I’ll try to summarize it from a pseudo-outsider’s perspective.

The AOL Community Leader Program (CLP) was pretty clear to me. Participants would  follow their interests and domain area of expertise, become a prominent leader and help end-users in a given niche community with community management duties. This meant flagging objectionable content, creating content, (some) live customer service and even “crowd control” during popular moments on the service. These accounts were empowered with abilities to enforce AOL’s Terms of Service (to a degree), were provided free of charge and could be used by other family members, too.

Despite the process for becoming a “Community Leader” (CL) being very clear that it was a volunteer-type of position, this was a point of contention for people who couldn’t commit to all the aspects of the program. Some voiced concerns for lengthy periods of ‘work’ and didn’t feel justly compensated for the value they added to the company’s user experience. A subset of CLs rallied together and brought the matter to the Department of Labor. At the time, Wired ran a story about this that gives a bit more visibility into perspectives of this conflict.

From here, the details get fuzzy, but this is my understanding of what happened.

AOL was investigated for claims of unpaid labor from this incident. Then they entered into a voluntary agreement with the Department of Labor and class-action settlement to provide compensation to CLs.  What was the compensation from this? The company provided one year of AOL service, amounting to $262 in real-world value. And obviously, from that point forward, the CLP decommissioned gracefully.

My understanding from this was that a company could not enlist a “volunteer” to perform otherwise paid/compensated duties. Personally, I think it’s making a giant leap in this interpretation because their “work” was also “consuming” the service, but again, I’m not a lawyer.

How does this relate to Tasini v. AOL?

I believe the agreements/decisions in ACI (AOL) would apply to HuffPo since AOL would now operate that business. It’s like being a roommate with someone who is on intensive probation – your property is subject to further scrutiny from their probation officer because of their past. AOL has a history of legal precedents (e.g., Zeran v. AOL, which brought the Communications Decency Act, Sec. 230 front and center to publishers).

Succinctly, there could be some legal basis to Tasini’s argument. However, that’s only one side of the story.

I appreciate the fact Ariana posted her rebuttal to the legal claims openly. Usually these situations are hush-hush and litigated behind closed doors. She makes a number of points that would have to be heard by the court presiding over the matter.

If Tasini expected compensation from the company – whether profitable or not – why did he wait until HuffPo was acquired by AOL? HuffPo was a profitable business well before AOL acquired it.

Further, if Tasini legitimately felt he was owed royalties, why did he publish 216 blog posts directly for HuffPo to use? I don’t know about you, but I don’t know any freelancer who would continue to voluntarily submit articles to a publisher without any terms of payment.

The dispute is not over a contract. So, this tort argument requires that Tasini produce a valid cause of action. That is, he must be able to prove that HuffPo had breached a right/duty, obligation to uphold that right/duty and real-world damages, not punitive. This is where it’s unclear. Based on these facts alone, AOL could have this suit dismissed with prejudice.

If a contributor produced content voluntarily with no contract, what do you reasonably expect the publisher to do? Pay them $100? Order them a pizza?

Ariana strengthens her point with the fact that her blog had provided a platform for him as a writer to gain exposure. This is also a big deal. Not anyone can merely submit articles to be published HuffPo. They have a high editorial standard and they have some journalistic credibility that people admire.

The example here is why a person would write to a newspaper, a magazine or conduct an interview with a reporter. It’s implied the publisher will use whatever content from that for their use with no expectation of payment or royalties. A person doesn’t do interviews for money – they do it for exposure. HuffPo has possibly millions of readers and also mainstream syndication.

However, this raises the moral and ethical dilemma over compensation for content. No one said freelance blogging is exclusive from business intent. And if you think otherwise, let’s settle it now: it’s business.

Sure, it’s blogging. A publisher could do a revenue-share from profits if they wanted. Nick Denton from Gawker chooses his comp plan based on page views for his network – basically the amount of two lattes from Starbucks per post as a base, and can be rewarded higher if a post is featured. For a story such as the iPhone 4 leak, that’s a lot of compensation. (Along with great reward comes great risk – like a police raid.)

When a publisher pays a dedicated contributor, it’s no longer about the content. It’s about the relationship with the publisher and the affinity to produce content on an expected basis, loyally.

Content isn’t free.

If nothing else, this “act” shows that some contributors value their time and efforts in blogging very highly. Depending on the size of the publisher, agreements should be inked in order to minimize legal exposure and risk to disputes like this.

Exposure isn’t free.

It takes time. It takes hustle. It takes 10 weak posts for every great one. This is experience and this isn’t free or cheap. Everyone has to get food on the table. It’s what a contributor does with the exposure that matters. If they eventually produce high-value content to premium publishers, that can’t be ignored.

Does it mean freelance bloggers ought to work for free? No. As a contributor, they need to size up the audience of the publisher and discuss payment opportunities. If publishers don’t pay well, don’t write for them. Simple as that.

In light of the underwhelming amount of evidence in support of Tasini, I don’t see this going anywhere. AOL has a very experienced legal team who takes every legal claim seriously. They won’t lose this one without a fight. And neither will Ariana.