"The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done."
This is a notoriously ambiguous definition but with AOL's rigorous guidelines, deadlines, and instructions it sure seems like this isn't an "independent" work force.
The other issue is, as a contractor, the contractor retains all copyrights to the material created. Work for hire does not apply in this instance.
He could send a DMCA takedown notice and have all of his articles removed, or organize all the other unemployed writers and coordinate a massive DMCA takedown letter writing campaign.
Virtually all contractors in our field work under "work-for-hire" clauses. I am baffled by the people voting you up and those questioning you down. It is not "in the Constitution" that two parties can't agree to a binding contract that transfers ownership of work product.
The IRS tests for contractor vs. employee status break down to:
* Does the worker control the "how" as well as the "what" of their task, or do they have to e.g. work at proscribed locations during set hours?
* Does the worker control the business aspects of their work, for instance the cost of tools, the expenses incurred, &c.
* Has the company employing the worker done things to create a de facto employee relationship, such as offering benefits?
None of these are bright-line differences. Contractors routinely work on-site, 9-5, using tools provided by their employers; however, care has been taken in structuring the relationship (for instance, by working corp-to-corp with a large consulting firm or head shop that itself maintains a W2 relationship with the workers).
It is indeed possible or even likely that AOL is treading a fine line by 1099'ing the people writing its content. On the other hand, AOL can afford pretty good lawyers, and it's equally likely that every aspect of their workflow has been structured to avoid imputing employee status to people doing piecework writing for them. You should tone down your stridency. There are a lot of people on HN that consult professionally.
It is true that a contractor generally retains ownership in any original work of authorship but AOL, in paying for the work, would get an implied license to publish that work as intended by the contract - that is its point in paying for it (much as any website owner who might fail to secure copyrights from a contractor who does work for his site, though he may not own the rights or be able to prevent the contractor from re-using the work elsewhere, nonetheless may use it for his own site in having paid for the work for that purpose). Thus, A DMCA takedown notice could not be used to remove any of the articles.
Contracts of this type also would normally be expressly framed as work-for-hire contracts and would also provide for the assignment of all rights to work that did not technically meet the criteria of works made for hire. Such clauses are valid and enforceable and are indeed a staple of every tech developers invention-assignment agreement. They apply with equal force to works of authorship by an independent writer. Assuming the contract here is so framed, AOL would own the copyrights in the works of the author.
The employee-contractor question, on the other hand, is a tricky one. This is a murky area but one where, generally, the lower the skill level and the more the worker must abide by company-defined procedures and schedule in how the work is done (among many other factors), the greater the risk of being classified as an employee. Many writers work independently with no risk to anyone of their being treated as employees but the AOL situation described in this piece might be vulnerable to audit risks owing to its assembly-line aspects. Hard to say without knowing a lot more detail.
Depends on the contract the IC signs with AOL. However, unless the copyright to the work(s) is specifically assigned, it remains with the creator. My guess is that AOL has this covered however.
He may be determined to be an employee by the IRS. He would then lose all IP rights, but would receive a tax refund, while AOL would receive a tax penalty.
He could send a DMCA takedown notice and have all of his articles removed, or organize all the other unemployed writers and coordinate a massive DMCA takedown letter writing campaign.
Even if this were true (it isn't), what difference would it make? The content he was writing was ephemeral fluff, designed to fill the daily news hole. It's not like Wikipedia. They could lose everything that all these writers wrote up to 6 months ago and chances are that nobody would notice. Guy got fired because he would have had to be treated differently for tax purposes if they had kept him on the payroll any longer, I suspect.
The content creator licenses the content. Not a "get".
17 U.S.C. § 101
A "work made for hire" is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Just because it's not a work made for hire doesn't mean the company can't receive the copyright. A copyright holder is always free to transfer the copyright; if AOL has two brain cells to knock together, their contracts with these contractors include a clause saying that the copyright is transferred to AOL.
It's not the case that contractors are guaranteed copyright to their work; in fact, the opposite is more common. The issue of copyright doesn't come up in the IRS criteria for contractor vs. employee.
It's not the case that contractors are guaranteed copyright to their work; in fact, the opposite is more common.
It is in the constitution, actually, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
The issue of copyright doesn't come up in the IRS criteria for contractor vs. employee.
No, but the IRS's determination of the business relationship between the two parties affects the applicability of work-for-hire.
As someone who runs a application design and development business I have yet to receive or sign a contract that doesn't explicitly state the final disposition for the rights to the resulting IP. I would find it hard to believe that there's a publishing outlet that doesn't do the same in their contractor agreements, particularly with writers.
No actually code, on its own is not patentable, systems and algorithms are. All those cool Apache and BSD licenses are about copyright which apply equally to code and a news article.
The issue is that the agreement may not be valid because of the business relationship between the two entities.
A "work made for hire" is anything an employee makes in the scope of his or her employment OR as a contractor "...a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."
If he was treated by AOL as a contractor, but was determined by the IRS to be an employee, he would be entitled to a refund for the excessive taxes he paid as a contractor and AOL would then be liable for those taxes. However, he would lose all IP rights to the content (because he was an employee).
However, if he were an employee, and the IRS determined he was a contractor, and there was no written "work made for hire" agreement (because the company assumed he was an employee and a signed agreement was unnecessary), he would retain all rights to his works.
In his specific case, if is is determined by the IRS to be a contractor, the agreement he signed would have to be specifically for a "work made for hire" and his works were "...specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas."
I'm not sure if writing search engine spam constitutes any of those.
If you sign a professionally drafted contract stating that you are being compensated for writing done on a work-for-hire basis, you are not keeping the copyright to your work regardless of whether the IRS determines that your employer owes penalties and interest for stiffing them on your payroll taxes.
I am saying if you sign a work for hire agreement, and are later determined to be an employee, the company owns the IP because you are an employee of the company, not because you signed a 'work for hire' agreement.
Conversely, if the company assumed you didn't need to sign a 'work for hire' agreement because you were an employee, but the IRS determined you were a contractor, you would retain the rights to your works.
Not quite. The constitution doesn't stipulate the relationship between contractors. The part of the constitution that you've cited establishes copyright as a concept. It doesn't denote that every work you create is automatically owned by you. While it is true that works you create on your own time are by default protected by copyright, you can also enter into work-for-hire and other intellectual property agreements that alter the status of what you create.
There's nothing unique to AOL here. When I first got out of college, I interviewed at local newspapers up and down the east coast. Entry level jobs had awful pay, about $15K/yr, but it was a chance to break in to the business.
One grizzled editor chain smoked cigarettes through our interview (you could do that in the office back then). He listened to me describe why I wanted to write. Then he leaned back, blew a cloud of smoke, and told me:
"You kid come into this business thinking you're going to make a difference. Pretty soon you find out, you're just filling the space around the ads."
He was right, actually. So I got into high tech instead, and have been doing startups ever since. Not sure I always make a difference, but at least I'm trying, instead of just filling space...
I worked for The (London) Times on a student scholarship back in the mid-90s.
I heard editors telling senior journalists to lie about anti-government movements, and asked to phone up a sister 'paper and lie about calling from another news organisation to find out whether a story was going to be run that weekend.
They offered me a job, but I turned it down. I'd had enough being a machine to generate words at university. I then had to chase them up for payment for my three weeks' work. A measly 150GBP (total) and they tried to screw me out of that.
Ironically I ended up working for Rupert Murdoch in IT again (in a completely separate non-media company - not MySpace) for 10 more years.
I have to say I read this article and thought: isn't this what journos are paid to do?
I majored in journalism and did work as a newspaper writer and photographer as a while, but didn't enjoy it. Eventually I found my way into computer programming.
The pay WAS terrible, but the job was nothing like what this AOL writer talks about. I was expected to research my stories and write them well, and was given time to do so. I would have quit if I'd been asked to crank out crap like this writer describes, and I'm sure any of my peers at the paper or in college would have done likewise. We had a lot of pride in doing good work.
I'm not sure how the financial model for journalism is going to shake out, but the world does need people who spend all their time finding out and explaining what's going on around us. It does not, however, need cookie-cutter, mindless sitcom reviews. I hope this kind of "content creation" dies a swift death.
I worked for The (London) Times on a student scholarship back in the mid-90s.
I heard editors telling senior journalists to lie about anti-government movements, and asked to phone up a sister 'paper and lie about calling from another news organisation to find out whether a story was going to be run that weekend.
They offered me a job, but I turned it down. I'd had enough being a machine to generate words at university. I then had to chase them up for payment for my three weeks' work. A measly 150GBP (total) and they tried to screw me out of that.
Ironically I ended up working for Rupert Murdoch in IT again (in a completely separate non-media company - not MySpace) for 10 more years.
Creating content online is NOT a viable business model. Recent history is littered with new content creators, and they've failed. The viable business model is either to host other content - YouTube, Hulu, Pandora, GrooveShark, Earbits, etc - Or to create content that is agnostic as to their use - Hollywood Studios, NY Publishers, Music Labels. - So either AOL should transition to a creator, or transition to a online host. It can't expect to have a viable future by creating content for online only. This is true of AOL and any other business model that tries this. JustinTV - Hosts, ESPN - Hosts, The WKUK - Creators, Monty Python - Creators. So please, once and for all, let's stop imagining these Online Studios, or these Online Magazine, or even worse, these Ipad Magazines. Instead think Vice. They've got music, magazines, tv, movies, and they don't care where you see it. http://www.vbs.tv/ - http://www.viceland.com/ . Just a bunch of Canadians that thought that they could rewrite the magazine business model by giving away their magazines for free. And look where that's taken them. So to recap. Make your choice, either host or create, and abide by their distinct rules.
I worked for a content site that ultimately failed. We tried to do high quality content. Even paying writers a decent wage. Ultimately it devolved into what you read here, chasing PVs with provocative and borderline false headlines. Quality takes a back seat as soon as you realize you're bleeding money. It was really sad to see and became a soul-crushing environment. Very very tough business.
Sure there will be small content companies in all mediums, but you can't be a big single media content creator. You need to create other revenue venues over multiple channels. Besides, instead of just telling us, show us ... what site do you work for?
http://www.heavenmedia.com - 1.5 million monthly unique readers and 20m page views, employee number in low double digits.
you can't be a big single media content creator
Why not? I see no reason it can't be scaled up, and we've scaled up by purchasing several websites in the past couple of years (from small to slightly less small). Sure, the bigger you get the harder it is, because there's more work creating the content, and more work monetising it, and more opportunities for making mistakes. But it's certainly doable.
We've all got used to the aggregators like google making all the money by convincing everyone content should be free. It was the greatest and long-term wise worst achievement of the dot com boom.
Anyone have a better example, or of the elusive single online content creator? (Like AOL tired / is trying to be). We have penny arcade as the leading example. http://www.penny-arcade.com/ and since I had never heard of them before this, I am skeptical, but I'm checking them out.
Good point. Vice may not be the best example. Perhaps I'm a bit too enamored with their inversion of the magazine model. I just thought that they were are great new cross platform content creator. Can you think of any other? Good is good too. http://www.good.is/
One example of great success is Penny Arcade - started off doing nothing but producing content, and basically leveraged it into a fucking empire - store selling merchandise, multiple conventions per year, and a children's charity.
Maybe this is an idealistic thought, but I think this trend of writing SEO laden garbage is what will finally make quality journalism behind paywalls work. People will eventually be driven to pay for decent content, unable to put up with irrelevant half baked articles churned out at breakneck pace.
I pay for publications like The Economist and The Atlantic (both of which I read entirely digitally) for exactly that reason. I want quality content when I sit down to spend my precious reading time on something.
I can hardly imagine spending that time reading insipid, content mill junk. Who puts so low of a value on their time?
That's an interesting take on this. I would certainly be happy to pay to avoid having to wade through all the garbage that's on the internet now. Now, that doesn't just apply to journalism, it's all content really.
To take this a step further, for me, the only reason I'm ever exposed to garbage content is from google results. I'm not sure google will be able to solve this problem, or if they do, it won't be from taking the same approach that's made them successful. I expect that some sort of curated search engine(s) will be the solution in the future. What exactly this will look like, I have no idea... if I did know I would be trying to build it.
“Do you guys even CARE what I write? Does it make any difference if it’s good or bad?” I said.
“Not really,” was the reply.
If he had any programming background, he missed a golden opportunity to write a markov text generator which would have let him meet his deadlines without the stress.
Obviously a straight-up Markov Chain generator isn't going to work, but a smarter system that would allow you to basically sketch the article and then have the system automatically babble in English to fill out the word count while not actually needing any additional information strikes me as feasible, though not trivial.
The Motley Fool also uses automatically-generated articles. For instance if you google the phrase "Being able to retire rich, or at least comfortable, is the goal of almost any investor" you'll find hundreds of articles from fool.com, each posing as an analysis of a particular company, and all generated with an algorithm which is fairly obvious after reading a couple of 'em.
They're not completely worthless, though. Real data + automated analysis is far better than no data or no analysis.
OUCH. No mention of the contraction of the newspaper industry when discussing Gannett?
>Next, we want to ensure that Gannett's stock has the ability to rise over the next five, 10, or 20 years. A company that's growing its net income has the best possible chance to see its share price rise over time. Of course, we can't predict the future, but we can look back to get an idea of how the company has performed in the past in order to try to ensure future earnings growth. Over the past five years, Gannett has shrunk its net income at an annual rate of 13.9%. Unfortunately, Gannett has run into its own share of problems, and the financial collapse of 2008 certainly couldn't have helped either. So the company has been unable to grow earnings, which doesn't exactly mean that it won't in the future, but it's certainly not the greatest of signs.
It's kind of clear that it's auto-generated after just one. The only other possibility would be that "Jordan DiPetro" had a real point to make about what stock stats can tell you without any real knowledge...
My first reaction was disbelief, "what? the Motley Fool doing something that is clearly unethical?" Then i googled as you mentioned, and indeed found all of these identically phrased articles.
But upon reading them i'm impressed at exactly how generic this template is. I'm not sure they're actually doing harm, because frankly, these articles aren't analysis. They don't actually offer any judgement about the stocks in question. They're basically a textual presentation of some stock data that is designed to serve as a feeder into fool.com.
I can't say that i'm okay with it, but it's not as catastrophic as i had initially imagined. Still definitely SEO spam though :\ I am disappoint.
In the SEO world you come across entire forum sites of imaginary users all talking about $SEOTarget product and how create $TargetWebSite is all amongst their little markov robot selves.
The goal is to create links which rank highly and raise the target in search results for search engines.
The OP talks about how in the age where there are more readers than ever, writers are undervalued. What the OP fails to mention is the quality of readers and writers. A reader who consumes 100,000 pages worth of Facebook statuses is not really much of a reader. Historically, reading was used as a means to communicate ideas. Think Machiavelli, Aristotle, Nietzsche. Now it is used for communicating a much larger scope of information: "Lady Gaga Pantless in Paris". You cannot compare a writer that writes the Illiad and a writer that writes TV Show reviews of shows they've never seen. They are not the same category.
Anyone else notice how good of a writer this guy actually is? Throughout the article he takes you through an emotional journey that very effectively portrays AOL as a soulless monster. (The third-to-last paragraph is a very good example of this.)
His words may or may not have merit, but his writing style is extremely persuasive. He got his message across and certainly made an impact. If only AOL took advantage of this, we might be reading an entirely different article.
I didn't mean to undermine you, only that I noticed a cleverness in the author's placement of the keywords. He gave us the exact keywords to find the actor who had issues with him, without directly stating who it was. This goes against the whole keyword driven doctrine at AOL, where the keywords used are explicit in who they are trying to promote.
Just an aside: would have been awesome if the writer created an article generating program. He could feed the program a few key words (perhaps just the name of the TV show). The program could scrape or be manually fed some information from Google trends. Then add some scraping of data from existing articles. Use a markov chain to keep the content fresh and you're good to go! I'm just thinking of the sentence generation via markov chain from Programming Pearls and the hilarious auto-generated computer science papers that were submitted and accepted by some journal.
It would be hilarious but I'm not so sure it would work that well. I think one of the big reasons the scigen papers passed for real was because a lot of people will assume that if they can't understand a paper, it's just gone over their heads. There's enough real jargon in them to reinforce that assumption. Entertainment news is a lot more accessible so it would be pretty obvious.
You're right that entertainment news is much more accessible. However there's also much more pre-existing "content" related to $mainStreamTopic at our disposal for training our future pulitzer-prize-winning markov-chain-based authors :-p
This just makes me think: why in the world would any one want to become a writer these days? There isn't much money in it, unless you get lucky and hit it big. I understanding having a passion, but this is one passion that should be relegated to hobby time. Am I wrong on this? I'm just not seeing the economic viability of writing sentences and having people (whether readers or advertisers) paying you proportionate to the amount of work you put in.
Being a writer has never been a way to get rich. All those movies about newspaper journalists are not filled with a bunch of wealthy writers. They are grinding it out, for the most part, and they always have.
The economics are true of just about anything that scales -- startups and anything in the arts both come to mind. There's no guaranteed route to six-figure comfort (like there is with, say, dental school), but the potential rewards are enormous.
And, as other responses have pointed out, in all of these fields, people really, really want to do them. The number of writing jobs that are 'comfortable' (pick your number, $60k?) has sharply declined from the glory days of the newspaper industry, but it still has the same non-monetary attractions, and there are the still the same opportunities to become, say, a bestselling nonfiction author.
I think it's more, "You don't choose your passions. You will randomly do many things in your life and some of those things will interest you so much that you feel compelled to keep doing them."
Are things really at a state where 35k is considered an impressive salary for a journalist in the US? I know programmers are spoiled, but I was kind of shocked at the implication that that was thought of as big bucks. Sad.
I am a huge supporter of creatives and artists. That being said, I have only partial sympathy for this guy. Work is work and we all need it, particularly creatives, but when you take a job writing about things you don't know anything about, you can't complain that you're being asked to do so. If he hadn't seen the most popular shows on television, he took a job he wasn't qualified for. That's fine, but then, he couldn't be bothered to research the industry he was covering - when that research required sitting in front of a TV and watching The Simpsons. That's not exactly slave labor.
It's a shame that content production has become the ad mill that it has, and writing about that from an objective viewpoint with all of this guy's internal data would have been good journalism. But I have a hard time feeling sorry for someone who got paid $35k a year to write about cartoons and couldn't be bothered to watch some of them in his spare time.
I inferred that he was being asked to write about 16 (one article every half hour for eight hours) specific show episodes for a deadline about 12 hours after they aired; even with a Tivo, how would you both watch and write?
I believe he said it was fewer articles (something like 10), but what I'm referring to is his comment about having never seen many of the shows. The minute you take a job writing about television, you get started familiarizing yourself with the most popular shows. When you're assigned to a new show, you watch one or two episodes. If you're covering some more often than others, you put that one on while you fold your laundry. It's not as if he has a job reviewing tourist locations. Point is, you become an expert and suck it up. Particularly in a field this competitive, you spend time outside of the actual writing getting up to speed. To suggest that's too much to ask lacks a certain professionalism.
I take a slightly less pessimistic view. Its an economic process that is in the process of balancing itself.
There are a lot of people who only want "free" information (which is to say free news, free reviews, free self help advice, etc) and of course providing information is not 'free' as it costs real dollars to host it, to maintain it, to fix it up after the web site gets hacked etc.
To enable it to stay 'free' people put advertisements on the page which the advertiser pays the costs of hosting the content.
That creates an incentive to monetize the difference between the cost of the content and the revenue from the ads. Given the incentive all sorts of suppliers have arisen, from domain squatters at the low end, to businesses like Demand Media and AOL apparently.
If you look at content creation you will see that this is creating 'content' at an unsustainable rate. At some point, a small population at first, and then growing larger, of people will say "I'll pay you for information that is 'better' rather than pay the cost of wading through the free crap to get to the good stuff."
When that switch reaches a large enough number of readers, I believe it will 'spontaneously' create the actual market for purely digital information sources. The blend of subscriber revenue and modest ad revenue will create a better reader experience and quality companies will emerge to take advantage of that.
FYI If you havent taken the time to read the comments posted to the actual article I strongly recommend you do. They're priceless - perhaps better than article itself.
Okay, but the future has a plan. The plan doesn't involve AOL. This and the fact they refuse to cancel your account. What a pathetic company. Good job stockholders are dumb.
Every bonus taking banker raped the banks' stockholders. But nobody seems to care. Stockholders come bottom, behind customers, employees, and bigger creditors. It's not quite how capitalism was supposed to work.
AOL's new "business model" is one Google algo change away from going poof. Clearly after Panda, Google is out to get rid of business models like this. Unfortunately they kind of suck at differentiating quality from non quality, but it's crystal clear they're trying.
Haha, of course a downvote. No, really, she's pantless everywhere. This is not a joke. Maybe the AOL writer who came up with that example knew what they were doing; I thought it was an interesting possibility.
AOL has a responsibility to its shareholders first and foremost. Making employees write about stuff they don't know about is not exactly slave labor... if they don't like it, then just quit, it's that simple.
Not really. 35k salary for a writing gig, presumably nothing even comparable is out there for the author. Judging by the last sentence, that dread of losing the job was valid.
AOL is treading a fine, fine line there.
The IRS defines an independent contractor as:
"The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done."
This is a notoriously ambiguous definition but with AOL's rigorous guidelines, deadlines, and instructions it sure seems like this isn't an "independent" work force.
http://www.irs.gov/businesses/small/article/0,,id=179115,00....