Last week I discussed the no-end-in-sight freelancer class-action litigation that was touched off by Jonathan Tasini’s landmark litigation in the 1990s against the New York Times for infringing freelancers’ copyrights by posting freelancer written material online without specific premission.
Meanwhile, Tasini’s latest litigation escapade is suing the Huffington Post for not paying him or others for blogging they volunteered to do for free. The latest I can find out of that lawsuit is that the The Huffington Post filed a motion to dismiss [PDF]. That’s their response to Tasini’s complaint. I’ve already blogged about the complaint, so let’s go ahead and take a look at the defendants’ motion.
The motion is filed under Federal Rule of Civil Procedure 12(b)(6). That’s a very common procedural move, and it’s well-known to anybody who’s spent much time in law school. But in case you haven’t, I can explain.
Rule 12(b)(6) allows defendants to have a judge bounce a lawsuit out of court in the earliest stage of a case in the event that, even if all the allegations of the plaintiff were proved true, there would still be no winnable lawsuit. So, how could it be that all of a plaintiff’s allegations could be true, and yet there would still be no chance of winning? Well, not everything worth complaining about entitles someone to compensation. In a civil lawsuit, the facts you allege have to give rise to a valid “cause of action.”
What Arianna Huffington, HuffPo, and AOL are arguing, through their lawyers, is that there is just no law out there that entitles Tasini to any money. Or, to state it more plainly, there’s no cause of action against someone for being greedy, mean, and successful. Here’s how the defendants say it:
Mr. Tasini … asks this Court to jettison his long-standing agreement with The Huffington Post and rule under New York state law that a competent adult in his position cannot agree with a website to publish his submissions in exchange for non-monetary consideration. He asks this Court to abrogate that agreement, as a matter of public policy, to combat “the broad detrimental effect of setting an artificially low price” for online content, and to reallocate at least a third of The Huffington Post’s value to recognize “the collective efforts” of other bloggers who also agreed to post without receiving monetary compensation. …
But no rule of statutory or common law, in New York or elsewhere, recognizes such a remarkable and unwarranted intrusion into the relationship between publishers and contributors. … [T]he fact is that no court, state or federal, has the authority under New York law to rewrite private agreements and reallocate private property in the manner Mr. Tasini seeks.
Now, while I think the law is on HuffPo’s side, this brief strikes me as being just slightly puerile. I get that there’s no precedent that supports the existence of a valid cause of action on these facts, but it seems a bit silly to me to be throwing around phrases like “a remarkable and unwarranted intrusion into the relationship …” First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship? If it’s abusive, as Tasini suggests, then maybe we should intrude.
That’s why I think HuffPo’s lawyers are going a little astray here. It’s not about the relationship, it’s about the law, pure and simple. There’s no cause of action here. That’s all you need to say. When the law’s on your side – and boy is the law on HuffPo’s side – there’s no need to act like the sky is falling.