Huffington Post bloggers in a huff - $105m lawsuit looms

A group of disgruntled Huffers (or Huffington Post bloggers - or former bloggers as the case may be) have decided they were entitled to a slice of the profitable proceeds of Huffington Post's sell-out to AOL and are seeking compensation for providing content to the site which they claim contributed to its value and sale value.

Having had a bit of time to reflect on the sale of the site to AOL for ca $315m last year, the Huffers claim that they are entitled to their respective fair share of the proceeds for having provided content. The response from Huffington Post (AOL) has been that it actually offered the bloggers/writers an opportunity and platform to air their views and distribute their work and that the sale related to the packaged Huffington Post platform as opposed to the individual content on that platform.

What's the issue:
Do bloggers who provide their content for free to a site such as Huffington Post have any rights in their work which would entitle them to receive compensation for their work in the context of the sale of Huffington Post.

Interesting background:
The person behind the class action against Huffington is none other than Jonathan Tasini who was the journalist at the centre of the landmark copyright case involving the New York Times republication of back-issues of its newspaper through an online database. Tasini and others challenged this, claiming that the agreement they had in place in relation to providing their copy for print did not extend to the online environment and reproduction on the web. They won and the paper was forced to pay out over $18m.

So is this claim Huff or puff?
In the New York Times case it was possible to distinguish between the agreement there was to assign copyright for the print article but that this did not automatically transfer over to the online version or reproduction if this was not covered off or envisaged by the original agreement.

Things have moved on in the decade since the New York Times decision but the underlying issue and argument is the same - when does a journalist /author / contributor have or acquire a right to be compensated for the commercial exploitation of their work. The answer is that they do so when they enter into / secure an agreement that acknowledges and provides for remuneration.

The difficulty in this case - and in the case of those contributing material on a free basis - is that there is no direct contractual basis for such contribution or corresponding right to remuneration.

The key question:
Where bloggers (contributors) provide content for free for the mutual benefit of website (Huffingon Post) and their own profile, do they acquire any right to the overall goodwill (collective value) in the site even though they are not paid or contractual contributors to such site? The answer surely has to be no.

In the New York Times case the journalists were on contract to provide print copy but had not had contractual terms that covered online reproduction. Had the New York Times been sold they could not have claimed that by virtue of their authorship they were entitled to a percentage of the sale price.

In the current case there is not even a contractual basis for the contributions let alone the entitlement of those contributing to a proportionate share of the aggregate goodwill of all contributions.

The solution:
To the extent that the contributors such as Tasini might not have any contractual rights to remuneration from their content, to the extent it has been provided on a free basis, the flip side of this position is that the Huffington Post does not automatically have any right to the content and does not have the right to commercially exploit the content.

While the Huffington Post was aggregating contributed content to provide a diverse media platform then there was an implicit agreement between content provider and platform that there was mutual benefit but on being sold, the Huffington Post fixed a goodwill value to its site, reputation and content which will have drawn on the collective contributions to the site. So if one stripped the Huffington Post of its content and contributors would it still command and have commanded the value it did and has? - probably not.

Mediabeak's assessment is therefore that while contributors such as Tasini do not have a claim to a share of the proceeeds of the sale of the Huffington Post they do have the right to request that their contributions be removed from the site (subject to any agreement they may have signed that provides otherwise) post sale to AOL - the argument being that they did consent to and implicitly license the content of their copy to the Huffington Post platform as was but did not consent to licensing and providing their work for free to AOL.

The issue here is not dissimilar to the legal wrangles that followed Google's acquisition of You Tube.

This case is and will likely prove to be an interesting one and test for the as yet unchallenged and tested area of user generated / blogged / freely contributed content that now prevails across the internet.

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