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Tasini’s HuffPo Class Action: Welcome to the hybrid economy

April 19, 2011

Interesting story in CNET: “Blogger Targets AOL Seeks Class Action Status“.  “Blogger”?  You can almost hear the implied “mere” before the word “blogger”.  Perhaps true, but not just any “blogger”.

In New York Times Co. v. Tasini, 533 U.S. 483 (2001), the U.S. Supreme Court held that the New York Times could not license back issues in electronic databases like LexisNexis if those works included the writings of free-lance journalists who had not granted rights to the NYT.  I’d like to say that this was some great epiphany like Paul on the road to Damascus, but it is kind of a fundamental licensing issue and so the decision–while a brave fight by creators for other reasons–was not particularly remarkable from a copyright perspective.  Aside from the fact that the NYT took it all the way.

What was remarkable was that the free-lancers fought huge media organizations like the New York Times and Lexis Nexus. Because the fundamental reason why these people get away with it (the same play that YouTube runs to rip off independent artists, that Google almost got away with running to rip off authors, and that Amazon is trying to run to rip off artists even more) is that the money lost to any one journalist is not enough to be worth suing over.  The only way it’s worth suing over is if all the journalists get together in a class action.  Which no one expects them to do.  That was the losing bet the NYT made in Tasini.

I was at a small dinner for Mr. Tasini right after the case came down and I was not surprised to come away from that dinner even more confirmed in the belief that you would have to be an idiot to take a case opposing him.  Not particularly a fire breather, but a dedicated servant of the truth in whom the embers of freedom glowed brightly–a dangerous man to people who wish to obfuscate the light.

I was reminded of a favorite line of a federal judge I was aware of–settle your case, gentlemen, or I will settle it for you.  And so Mr. Tasini now comes to defend authors against what Lessig calls the “hybrid economy” or the “sharing economy”.  Sharing as in Flickr selling for millions, YouTube selling for billions, all because they essentially tricked the antonymically named “users” into “sharing” everything but the company’s purchase price.

In the case of the Huffington Post, these “users” were traded “exposure” for their work.  As my friend Rick Carnes has said, people die of exposure.  Anyone in the creative industries for any length of time has heard this malarkey about “exposure” from people who want something for nothing.  So even though I am a strong believer in the sanctity of contract, I also think that this “free for thee but not for me” underpinning of the hybrid economy is so pervasive that it is worth taking a look at the enforceability of assignment clauses in these deals.  I have not reviewed the terms of use of the Huffington Post, but I have long felt that the transferability of the “users” works on MP3.com, Flickr and YouTube was dubious at best.

And then of course, we cannot ignore the personalities involved.  Ask yourself this–who would come off better to a jury, a free lance blogger who only wants a fair shake, or…Ariana Huffington, probably wearing more than most freelancers make in a year and who will be defending keeping all the gold for herself in the sale of Huffing and Puffington?

So while I don’t doubt that Mr. Tasini has an uphill struggle, it ain’t the first time.  So who wants to prove they can give advice as bad as that given to the NYT?  Who wants to demonstrate with hard dollars how idiotic the “hybrid economy” really is?  And make no mistake–that’s what this case is really about.

Or to paraphrase David Mamet, “Sharing is collaborative.  Now bend over and start sharing.”

Settle your case.

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