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Bloggers vs. Media Giants: Lawsuits Show Both Sides Can Be Dumb

Blogging has long had the reputation of being a sweat factory, where many work long hours for rates that former Gawker writer Choire Sicha termed "somewhere between poverty and not terrible." But some bloggers have clearly enrolled at the Howard Beale School of Anger Management and have called their lawyers for would-be class action suits.

The high profile case is that of Jonathan Tasini suing AOL for $105 million in damages because bloggers voluntarily worked for free and the Huffington Post owners got a $315 million pay day. In a less noted action, Jason Beahm, a legal blogger for FindLaw, has sued Thomson Reuters for failing to pay for overtime and encouraging writers to work through lunch without pay, among other things. What the pair of actions shows is that whether worker drone or executive, unwise decisions are likely to come back to bite you. Stupidity is a land of equal opportunity.

For Tasini, it's all supposed to be about justice -- oh, and back pay. That does raise the question of how you can get back pay when you never had any forward pay, and it gets to the heart of the foolishness that is abundant in business in general, and the media industry, in particular.

Tasini has dealt with publishers for many years, since before he became the lead plaintiff in the famous Tasini v. New York Times Supreme Court case. That class action suit set limits on what publishers could do with freelance work absent a contract giving them additional rights. And Tasini was also one of the people who pushed for a class action lawsuit against publishers that placed articles into commercial databases without explicit permission (a case still in limbo as some writers successfully objected to a settlement).

So, he does think historically in terms of law suits. However, in those cases, writers had a commercial relationship with a publisher, which allegedly went beyond an existing contractual relationship. But none of the bloggers had any relationship with Huffington Post other than an agreement to let the site display writing in return for a chance to expose themselves. Huffington Post never even claimed ownership of the writing, just a non-exclusive license to display it.

You could reasonably argue that Arianna Huffington has strung people along with promises that would amount to nothing. Outside of a relative handful of the bloggers who gain huge audiences, most of the writers would seen virtually no one actually read what they were writing.

That's a likely reason why HuffPo doesn't give traffic numbers to the bloggers. Clearly those statistics exist, but who would keep writing for nothing if they knew that their missives only attracted the attention of their Aunt Claras? (Even their mothers often have better things to do.)

If, like Tasini, you don't bring yourself to ever ask for money, then expecting that it will magically come along one day is at best day dreaming. All these adults -- particularly the ones who have worked for pay in the media -- should have known better. And they probably did. They just wanted something else to be true.

That's what they have in common with the people at Thomson Reuters. Labor law is well settled in the U.S. and managers should know what they can and cannot legally do. Even if a company made the argument that writers were exempt from federal minimum wage and overtime requirements, that wouldn't necessary excuse it from "encouraging" them to keep working through lunch, if Beahm's allegations are true. And given that the complaint implies that the bloggers were non-exempt employees, then failing to track and document hours and pay overtime is an egregious form of management-by-getting-away-with-it and as foolish as expecting to get paid for a job you don't have.

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