1) they had training
2) they had supervisors
3) they had to file reports and meet goals
If they were operating autonomously, or even given some incentives (at the time they were given free AOL which was not a flat rate, so it had significant value), then the risk is low, but some of the things AOL did in running this program put them at risk.
Even with the very specific things AOL did that bit them later, the lawsuit still dragged on for a long time.
Yelp is unlikely to be at any risk at all here unless they were treating these reviewers like employees. Just contributing content is definitely not enough to put them at risk, and if the people are bitter about their contributions they have the right to remove them (I think).
> You alone are responsible for Your Content, and once published, it cannot always be withdrawn.
> We may use Your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms ("Other Media"). As such, you hereby irrevocably grant us world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use Your Content for any purpose. Please note that you also irrevocably grant the users of the Site and any Other Media the right to access Your Content in connection with their use of the Site and any Other Media. Finally, you irrevocably waive, and cause to be waived, against Yelp and its users any claims and assertions of moral rights or attribution with respect to Your Content. By "use" we mean use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content.
They follow that with
> As between you and Yelp, you own Your Content. We own the Yelp Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of User Content and other Site Content, computer code, products, software, aggregate user review ratings, and all other elements and components of the Site excluding Your Content, User Content and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world ("IP Rights") associated with the Yelp Content and the Site, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Yelp Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Site and the Yelp Content are retained by us.
Which is, I think, an effort to distance themselves if someone posts "I totally saw the chef drop the steak on a dirty floor and put it on a plate" type lies.
Thanks. I didn't realize they don't allow content to be withdrawn, that's interesting, but doesn't affect the contents of the lawsuit as far as I can tell, in fact, two of the primary complaints were that their content was removed after they were banned.
(Oblig. Disclaimer: IANAL) Keep in mind that a TOS is a cover-your-ass mechanism, not a contract. Parts of it can be struck down as part of a legal decision; until a clause is tested in court, it's basically bluster.
The precedent of such a suit would be staggering; I can't count on two hands the number of major Internet companies that derive the vast-majority of their content from user-generated content.
Kinda weird to be fiercely on the side of a company I dislike, but I hope Yelp doesn't have to spend too much money on pointless legal fees here.
You write as if the suit has a chance. The suit has no chance, none, zilch, zero. They were not forced to write the reviews. Imagine me and you suing ycombinator, because our post on HN adds value to the site. How absurd.
I certainly hope you are correct (and would believe you to be), I just have zero domain knowledge of the law in this scenario and wanted to resist making such an assertion.
I almost fell out of my chair when I read this. What a breath of fresh air! Zero domain knowledge doesn't prevent most HN users from just making something up on the spot and spewing it as fact.
You are joking but it's not a stretch for YC to in some way compensate high karma users who post on a continual basis.
I don't know what that compensation should be and I know it goes against the grain of the way things work everywhere and that people participate voluntarily (and derive their own benefit from it) but a token of thanks (of the monetary form) would be a good idea.
(And I'm not suggesting that someone with my karma level qualifies.)
Your idea is supposed to be that being "forced" to do things is what makes someone an employee, but no employee is ever forced to do anything---all employees have the option of leaving their employers in the very same way that yelp reviewers are able to leave. I agree that something is wrong here, but I don't think that you're correct about what that thing is.
Agree that (from what I read) the "suit" has no chance.
But the job of a good attorney is to find a leg to stand on.
An attorney has taken the case.
A leg to stand on has been presented. From a quick (I mean literally quick) scan it appears that Yelp pulled one of the parties "Elite" status as an example.
The action here appears to present a case to get benefit out of Yelp for their arbitrary actions against the complainant. A case does not have to be winnable in order to derive benefit (note what patent trolls do that has everyone up in arms).
While the people here are not employees there is something wrong going on in a community (HN falls into this category) where people put in time and effort and then "privileges" are pulled without recourse, appeal or clear lines drawn.
"And he may just be doing it to get free publicity."
A really good point and I actually meant to mention that as a reason the case might have been accepted.
But that said even though I am generally a believer that any publicity is good as an attorney you wouldn't want to come off as a total laughing stock in order to get publicity. So while we definitely don't know if he is a "good attorney" we do know that he was able to get an attorney to take the case. I wasn't able to find much on the attorney. So he has (quick guess) everything to gain and not much to lose.
Of course I could offer as a counter to my argument the facebook case (Paul Ceglia) [1] [2] which was a total joke but he managed to get a prominent law firm to represent him in that case and they certainly screwed up on that one.
There's not even a point in going down that hypothetical. This is beyond stupid. It would be like suing your favorite restaurant for not paying you for telling everyone how much you like it.
Well I would never have imagined that people could have sued AOL for volunteering to manage message boards; community leaders. Yet that was investigated by the Department of Labor and settled in 2010.
Does the act of encouraging people to comment on your site, where the services you comment on require investment of your money, somehow incur a debt on part of the review site to the reviewers? What if the review site has a monetary relationship with the sites being reviewed?
YouTube most likely decided to pay for videos to encourage more and better content. Without paying their content creators, YouTube would just be the place where you get started and then moved somewhere else to profit.
This suit has no merit. If it did, then every FB, Twitter, Google, Amazon, etc. user would have to start getting paid at sign up. It doesn't make sense. The point of rating/reviewing a service/product is that you want to share the ups and downs with other people, so they make an educated selection. I personally enjoy reading reviews of restaurants and always give a place a chance if there are few unfavorable reviews. I also like writing my own reviews and even though I might have once thought that I should be paid (like a good wine connoisseur) I know that that I would've never reviews anything from the start, if getting paid was the goal.
This blog post reminded my of that one commercial (has anyone see it?), which I find very annoying, about joining someone's list. Perhaps these Yelp users should pay to review as they don't quite deserve the Yelper title.
You might say this is frivolous lawsuit, and I'd agree. The plaintiffs have zero chance of winning, there is no coercion, there is no semblance of employment.
But.
Take a moment to think. What is the value of a website like this, without the user-generated content? A Yelp with no reviews, no photos, etc. is just a phonebook. Alternatively, a restaurant review with no platform, no audience is just a journal entry. It's symbiotic.
Maybe that's obvious. Ok, so. Yelp gets paid. Why don't the reviewers get paid? Too easy to game? Too impractical? Because people will do it for free anyway?
Musicians and exhibitionists will do it for free, too. That doesn't mean they are creating no value. It would be good if Yelp reviewers could be paid. It would be good if it were possible to pay people for the value they create voluntarily.
Here's a larger point from the mid twentieth century: what is the real value of a broadcast TV network with the viewers? IN a sense, the product the network produces is ad views, with the work being done by the audience.
I'm not saying that the audience is an employee, just that the model of not paying for value created by a crowd is large and old.
Imagine a (very fictional) Yelp user who has 0 money, will never go to a restaurant again in his life, or buy anything at all for that matter. But he has perfect memory and can write excellent reviews of thousands of restaurants he's been to in the past.
Does he have any value to Yelp as eyeball for advertisers? No. If Yelp's audience consisted completely of people like him, no one would ever advertise on Yelp again, no restaurant owner would ever pay Yelp for premium whatever status thing they sell.
But our fictional user can write reviews that are consumed by other users. He is providing real value to Yelp, as a non-eyeball.
In the television case, this guy is completely worthless.
Facebook is a simpler example, because most people are both supplying content and seeing ads. If there were no content, no one would go there to see the ads.
I wish the US legal system would make changes to discourage these types of frivolous lawsuits. It seems like many suits are intended to force the defendant to settle even though the suit itself has no merit.
I wonder if the # of frivolous lawsuits would go decline if the suing party were forced to pay the defendant's legal fees if the suing party lost.
It entertains me that we're so big on First Amendment rights, but the right to petition for redress of wrongs needs to have conditions on it like "not frivolous".
I wish the US legal system would make changes to discourage these types of frivolous lawsuits
Me too. But it probably won't for three reasons:
1. The civil litigation business is immensely profitable for attorneys
2. The number of people / organizations sued is small enough that they don't have a loud enough voice
3. Anytime someone advocates for reform (ex: loser pays) they will trot out the one case that so clearly calls out for justice and state how the reform would keep justice from occurring in this case
An aside, according to the lawsuit:
Writers can receive "Elite" status and are given titles such Duke, Duchess, Baron, or Baroness, the complaint states."
Really? Oh man, what people will do for "achievements"! Personally, I think the lawsuit is bogus.
so if this lawsuit were to win, would this be the beginning of the end for user generated content sites?
Not that I think they'll win. Its a bit of a stretch to call these reviewers employees unless there is something missing from the article (I've never heard of Yelp before so I don't know much about them).
i will risk my karma here and say that if all sites were required to pay for user's contribution, that would force sites to charge visitors for using sites, and this might in turn would stop this crazy ads mania and convert sites to subscription-only.
http://en.wikipedia.org/wiki/AOL_Community_Leader_Program
Some key reasons they were able to win were:
If they were operating autonomously, or even given some incentives (at the time they were given free AOL which was not a flat rate, so it had significant value), then the risk is low, but some of the things AOL did in running this program put them at risk.Even with the very specific things AOL did that bit them later, the lawsuit still dragged on for a long time.
Yelp is unlikely to be at any risk at all here unless they were treating these reviewers like employees. Just contributing content is definitely not enough to put them at risk, and if the people are bitter about their contributions they have the right to remove them (I think).