From Tasini v. AOL, Inc. (S.D.N.Y. Mar. 30, 2012) (thanks to Prof. Ann Althouse for the pointer):
Rather than monetary compensation, the unpaid [Huffington Post bloggers] are offered exposure — namely, visibility, promotion, and distribution, for themselves and their work…. [T]he defendants otherwise made clear to the plaintiffs from the beginning that they never intended to pay content providers such as the plaintiffs for submissions….
[T]he plaintiffs claim that the defendants have been unjustly enriched by generating profit from the submissions of the plaintiffs to The Huffington Post and not paying the plaintiffs for those submissions, while enticing the plaintiffs with misleading promises of exposure….
[But n]o one forced the plaintiffs to give their work to The Huffington Post for publication and the plaintiffs candidly admit that they did not expect compensation. The principles of equity and good conscience do not justify giving the plaintiffs a piece of the purchase price when they never expected to be paid, repeatedly agreed to the same bargain, and went into the arrangement with eyes wide open….
Quite simply, the plaintiffs offered a service and the defendants offered exposure in return, and the transaction occurred exactly as advertised. The defendants followed through on their end of the agreed-upon bargain. That the defendants ultimately profited more than the plaintiffs might have expected does not give the plaintiffs a right to change retroactively their clear, up-front agreement. That is an effort to change the rules of the game after the game has been played, and equity and good conscience require no such result.
I agree, as I argued a year ago, when the lawsuit was filed; I also talked in that post about why plaintiffs shouldn’t win under the Fair Labor Standards Act, but no such claim was brought (at least in the lawsuit that led to the opinion to which I just linked).