Will the lawsuit brought by Jonathan Tasini against AOL and the Huffington Post on behalf of 9000 unnamed HuffPo bloggers be successful in any legal sense? Hard to say. Beyond the legal wrangling, however, the case provides the opportunity to examine the value of exposure and the role of online publishers and free labour.
The lawsuit aims to establish how much value the bloggers contributed to the Huffington Post and why they should have a share of the proceeds of the sale for HuffPo to AOL.
Tasini is no stranger to the legal issues regarding the rights of content producers — and to advocating on their behalf. In 2001 in Tasini v New York Times, he aimed to make sure freelance writers were properly paid for secondary rights such as syndication, translations, anthologies, and so forth. The legal arguments were centred around whether an internet database constituted a reproduction of a collective work or not.
The hyperbolic vitriol of some of the commentators about the case currently underway is a bit disconcerting. Chief among them is Mike Masnick, TechDirt.com CEO and editor, who has consistently represented himself as an evangelical apologist for the worst excesses of digital capitalism in his attempts to understand new business models. He does, however, isolate one crucial point:
"Can you imagine the impact on the internet as a whole if Tasini actually won? It would basically uproot the entire concept of the internet. Any site that involved user contributions would have a massive liability."
I am sure I wasn’t the only person who laughed a little at Masnick’s suggestion that the "entire concept of the internet" was at stake (is the dream of the ARPANET creators or Tim Berners-Lee under threat?). What is actually under threat is the ability to use the internet to induce users into surrendering their labour for free. Even if Tasini’s case fails, it raises an important question about how producers of online content should regard the value of exposure. In other words, what is the value of exposure?
Tasini’s complaint does not give a straightforward answer. It defines exposure in two ways: firstly, as a quantitative metric based on website statistics; and secondly as near-synonymous with "promotion" in an advertising sense. Part of his complaint is that the Huffington Post "deceptively fails to verify" the character or value of this exposure by not providing statistics on traffic. Tasini then develops a slightly more complex argument about the relative value of "exposure" as the number of HuffPo bloggers increased.
In 2007 the Huffington Post announced it was introducing a system to invite commenters to become bloggers. This increased the number of bloggers from a relatively small coterie of Arianna Huffington’s associates to include popular commenters from within the HuffPo community. At the time Huffington’s co-founder Ken Lerer made it clear that the site had no intention to pay bloggers: "That’s not our financial model. We offer them visibility, promotion and distribution with a great company." So what is the value and character of this "visibility, promotion and distribution"?
As all this took place, Scott Karp noted that a constant for "online publishers" is that "a relatively small number of highly active participants generate a disproportionate amount of the value", an observation repeatedly made in research into volunteer and community organisations. The crowd-sourced valorisation of a commenter is facilitated by aggregating social reputation — such as a "like" system. One of Tasini’s points in the lawsuit is that the relative value of exposure decreased as more bloggers were added to the stable. The increasing number of bloggers was in step with the site’s development and the increasing revenue brought in by advertising on the site. By increasing the total number of bloggers, individual bloggers were increasingly underexposed, hence the relative value of exposure decreased.
A problem with all this is that it assumes exposure to be some kind of proximity magic provided by an online publisher. Such a technological determinist variation of the Field of Dreams fallacy — write it (for free), and you will be exposed — fails to account for how exposure is produced.
Tasini develops another interesting point: that the value provided by blogging contributors to HuffPo was not only "top quality content at no cost" but also the act of "disseminating that content via social networking media and electronic mail, giving the Huffington Post exposure, which allows for search engine optimisation, web internet traffic and hence revenue". In other words, the bloggers produced exposure for the HuffPo as a result of actual labour and not some magical act of the interwebs. Exposure is the result of 9000-plus contributors working to promote their own content and the content of others.
So far exposure has referred to exposure of the person producing content or promotional activities sharing content. Yet a comment by Huffington quoted by Tasini in the lawsuit suggests that there might be more to it. Huffington refers to exposure of one’s views, not a person:
"People have not fully adjusted to the fact that self-expression is, for many people, a new source of fulfilment and entertainment… We have 9000 bloggers with a password and literally get hundreds of submissions that our editors have to process. People are dying to blog for us… Do you think anybody really writes an op-ed for the NYT to get $100? They write because they want the exposure for their views."
This is a slightly different proposition. It fits better with earlier proclamations when commenters were being promoted to bloggers about the the Huffington Post being like a town square or community site. Writing about issues and taking part in the conversation about these issues was the primary reason why bloggers and commenters got involved. Blogging to raise awareness about a political or social issue does not fit comfortably with the neoliberal entrepreneur-of-the-self rhetoric. In particular it does not fit with the notion that free content can be monetised according to the principles of offset economics. (The basic tenet of offset economics being that value is realised at a later date in another transaction of a scarce good that is only possible due to an earlier free transaction of a good with ‘infinite’ supply.)
Working to gain exposure for one’s views, rather than for one’s self, means that bloggers are (or, at least, were) participating in social or political alternative economies of value. Much of the commentary completely misses this point. See for example this Gawker piece that compares Tasini’s own site with a possible capacity for monetisation, but which exists in an alternative economy of value, to HuffPo’s actual monetisation. This distinction is important to maintain if much of the "free" content on the internet is to be understood. Tasini’s summary of his points regarding the allegedly deceptive practices of the Huffington Post highlights the alternative economies of value in terms of the HuffPo originally "providing a free forum for ideas":
"It is deceptive to promise exposure (visibility, promotion and distribution) in lieu of monies to Plaintiff and the Classes, but then not provide a real and accurate measure of exposure and it is deceptive to solicit content on the promise of providing a free forum for ideas when, in fact, a product with tremendous value is being created by the solicited and uncompensated services provided."
Tasini has brought the lawsuit because he argues the Huffington Post represented itself not as a vehicle to enable the realisation of monetary value but as an alternative economy of value based around social and political ideals. That is, by monetising the capacity to induce contributors to provide free content (realised through the sale of HuffPo to AOL), the relationship between contributors participating in a "free forum of ideas" (as an alternative economy of value) was commodified.
The invocation of the "exposure" argument is an attempt by neoliberal ideologues to ward off the fact that people donate time and effort to what they perceive to be good causes, but do not want their donated time and effort to be wholesale commodified. Content was provided for free to other commenters and bloggers for the benefit of developing a community of comment, not to Arianna Huffington and AOL for the benefit of increasing the value of the Huffington Post.
On the other hand, it is important to note that the lawsuit, and pretty much all the discussion about it, does not engage with qualitative definitions of exposure and relies too heavily on a quantitative metric-based definition.
Exposure can refer to desiring attention from specific people in specific positions of power. "Doing it for exposure" in alternative economies of value may still lead to an exchange at a later date, but it is based around social value and who exactly is paying attention. That is, the social value of exposure may reside in the future offer of opportunities to promote one’s views or develop work opportunities (see, for example, Potts et al for more on this topic).
As Caroline Hamilton has argued on the topic of exposure in literary economies "writing work has always involved a double economy: remuneration and reputation". All in all, as Margaret Simons has noted, the possible value of remuneration and even doing it for exposure "seems to depend on who you deal with, and how you deal with them". Douglas Rushkoff — and many others — have suggested HuffPo is now not worth dealing with at all.
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