California Assemblywoman Celebrates The RIAA Giving Her A Gold Record For Exempting Musicians From Her Terrible AB5 Law

from the that-seems-hellishly-corrupt dept

For a year now we've been writing about the disastrous impact of California's AB5 law that was designed to "protect" gig workers by basically outlawing nearly all freelance work in California, and requiring much of it to be only done by salaried employees. It has impacted many industries very hard, including freelance journalists. The author of the bill, Assemblywoman Lorena Gonzalez has been insultingly dismissive of those who have highlighted how much harm her bill has done.

Though, as the complaints got louder and louder, she finally admitted that she might be open to some changes of parts of the bill. But, that's not what actually happened. Instead of fixing the larger bill, she just agreed to duct tape on a bunch of exemptions -- including for many of the industries that were most vocal about how much damage her bill was doing. This included freelance writers, photojournalists, freelance editors, copy editors, youth sports coaches, landscape architects, cartographers, and musicians among many others.

Now, normally, if you have to go back to the drawing board to add a dozen and a half exemptions to the bill you just passed, it would be a sign that perhaps the bill itself is a problem. Indeed, lawyers are already saying that this "may be just the start of amendments to AB5 that will carve out other industries and occupations." And even the journalist exemptions are not complete and still have many journalists worried that they won't be able to freelance under the law.

But what's really disgusting is that Lorena Gonzalez took to Twitter this weekend to celebrate the fact that the RIAA sent her a gold record as a "thank you" for carving musicians out of AB5. Of course, that's not the way she put it in her tweet about it:

She says:

I never imagined that my only “gold record” would be a thank you from the Recording Industry Association for working to right-size Dynamex & AB5 for musicians. But, I’ll take it! (Have you heard me on Karaoke though??)

"Right-size" is a funny way to say "oops, we fucked up your ability to make a living, and then had to rewrite the law to exempt you from my own disastrous law." And that's not even mentioning just how corrupt it seems for her to then be showing off that the lobbyists for the recording industry sent her a gold record as a thank you. Are other industries looking for an exemption from her damaging law now supposed to send gold plated awards as well? The whole thing is unseemly. AB5 was a bad bill from the start that has harmed a ton of people. Instead of creating exemptions, we should get rid of it -- or, even better yet, write a law that fixes the Dynamex decision that Gonzalez insists requires AB5 in the first place.

Filed Under: ab5, awards, california, exemptions, freelancers, gig workers, gold record, journalists, lorena gonzalez, musicians
Companies: riaa

California Assemblywoman Lorena Gonzalez Says She Simply Doesn't Believe All Of Those Who Have Been Harmed By Her AB5 Bill

from the so-caring dept

We've written a few times now about California's AB5 law that has more or less made it difficult to impossible for many freelancers/contractors to still work in California. Even though the stated intentions of the bill's author, Assemblywoman Lorena Gonzalez, and its supporters was to "protect" workers, the reality is anything but that. It's yet another case of politicians who have no clue how the world actually works, insisting that what they're doing must work fine because their intentions are good. Many people who have been impacted by this have found that Gonzalez has been dismissive of their concerns -- and at times directly rude to people on Twitter highlighting these issues. We had thought that perhaps Gonzalez had realized there might be a more constructive way at the end of last year when she asked for thoughts on a possible small tweak to the law. That change would have been wildly insufficient, but it was, at least, a step in the right direction.

However, with the new year, we apparently have the same old Lorena Gonzalez. She was interviewed on local San Diego TV station KUSI, and was obnoxiously dismissive of the idea that people have actually been harmed by her law. The newscasters highlighted actual people who were losing work because of the law, and Gonzalez's response was that she doesn't believe the people. In one case, they showed an interview with a freelance translator -- who actually had worked for the state and even for Gonazlez herself, and had voted for her -- who said she can't get work any more because of AB5, and Gonzalez appears to dismiss her as not telling the truth.

I'm sorry, and I feel that she does feel that way. But, I don't think it's true

She then claims that (of course) unnamed translator companies have been telling her they love AB5 because other companies have been undercutting them by bringing in freelancers.

Multiple people are shown talking about how this law is negatively impacting them, and time and time again Gonzalez dismisses their concerns or insists they can just "form a business" and be exempt. She jumps in, as soon as the interview starts, to say that she just doesn't believe that thousands of people have been put out of work. But notice that she's choosing her words carefully -- saying that people have been "put out of work." But freelancers who are just not getting the jobs they used to aren't "put out of work," they're just not seeing any new work like they used to. Gonzalez's entire framing of the issue suggests she still has no idea how freelancing works.

Hilariously, just minutes later, Gonzalez then completely dismisses more examples of freelancers who are losing work because of AB5. The reporters at the TV station highlight Vox Media's decision to cut off 200 freelancers in California and Gonzalez responds:

First of all, it wasn't a job. Those aren't jobs. Those are freelance positions.

Uh, yes. And now they're gone. She goes on to try to dismiss all of those Vox writers, by suggesting that it was more of a side thing. But, uh, the whole point is that those "side" jobs aren't available any more, and it ignores how many freelancers pile up a bunch of those kinds of gigs to make a living -- with the flexibility that they want.

KUSI then shows an interview with an independent contractor political cartoonist, who notes that even if you're exempt from the law, as a private business (Gonzalez keeps falling back to the idea that any freelancer can set up their own corporation -- which costs a lot of money, by the way -- and then they're exempt), media companies don't want to deal with the risk and aren't hiring them any more. Rather than respond to the actual concerns of the cartoonist, Gonazlez goes into a semantics argument saying that merely using the terms "hire and fire" show that we're talking about jobs, not contractors. But, uh, no, that's not how any of this works.

As the interview ends, she says that "thousands" of (nameless) people have been thanking her because they "now have jobs" thanks to AB5. What's amazing is that apparently none of those people have social media or have talked to any news organizations, because all of the people publicly discussing AB5 appear to be freelancers and contractors who are losing business because of the bill.

Oh, and just to put a kicker on this. Just as the interview was being conducted, the NY Times opened up a job request for a freelancer to cover California real estate. Oh, but they can't live in California because of AB5.

They're not the only ones, of course. Late last year, local news site Patch, which hires many freelancers, announced that it was looking to hire people to cover California... but only if they didn't live in California.

What comes up time and time again, and which Gonzalez keeps dismissing, is that tons of these freelancers want to be freelancers and don't want to be employees. And she, without understanding these industries, keeps insisting that she knows better, and that they'd be better off with jobs they don't want. It's a mess.

Filed Under: ab5, california, contractors, freelancers, jobs, lorena gonzalez, work

Author Of California's Bill That Effectively Ends Freelancing Finally Open To Making Changes After Freelancers Lose Jobs & Lawsuit Filed

from the bit-late,-but-it's-a-start dept

Back in October, we wrote about the disastrous results (even if there were good intentions behind it) of a California law, AB5, that sought to "protect" so-called "gig" workers by forcing companies to hire them as employees, rather than freelancers/contractors. Supporters of the bill, including its vocal author Lorena Gonazlez, argued that it was necessary to protect these workers from exploitative companies and that it was clarifying what the courts had already decided. However, a big part of the problem was the framing of the bill, which more or less assumed that no one could possibly want to be a freelancer or contractor, that everyone must want to be an employee. That's not true. Nowhere was this more clear than in the world of freelance journalism, where many freelancers like the flexibility that comes with the role, and the ability to write for many different publications. Gonzalez's bill, which goes into effect on January 1st, put a ridiculously low yearly "cap" on articles that a freelancer could contribute to a single news site at 35. Any more than that, and the person would need to be reclassified as an employee. Even Gonzalez flat out admitted that the 35 cap was "a little bit arbitrary." Lots of freelancers contribute way more than 35 articles per year (some do more than that in a month), and they rightly saw that this would likely destroy the ability to be a freelance journalist in California.

Gonzalez didn't make things any better by initially attacking some of those who pointed out these problems, even retweeting a tweet calling journalist Yashar Ali "a selfish piece of shit" for pointing out the problems with the bill. And, of course, as the law is about to go into effect, the impact is being felt. The biggest one was Vox-owned sports site SBNation, which has long allowed for sports fans to write about their favorite teams and get paid for it as freelancers. However, last week, Vox announced it could no longer have California freelancers writing for the site. It was going to hire a much smaller number of full time staff, but hundreds of freelance contributors could only continue to contribute for free:

In 2020, we will move California’s team blogs from our established system with hundreds of contractors to a new one run by a team of new SB Nation employees. In the early weeks and months of 2020, we will end our contracts with most contractors at California brands. This shift is part of a business and staffing strategy that we have been exploring over the past two years, but one that is also necessary in light of California’s new independent contractor law, which goes into effect January 1, 2020. That new law makes it impossible for us to continue with our current California team site structure because it restricts contractors from producing more than 35 written content “submissions” per year.

Gonzalez initially reacted to this news by saying that "Vox is a vulture," rather than acknowledging that the company was just responding to the law she had written and supported. She did, at the very least, acknowledge that some "legit freelancers lost substantial income," but apparently punishing Vox is more important.

I’m sure some legit freelancers lost substantial income, and I empathize with that especially this time of year. But Vox is a vulture.

Separately, there's some bit of irony in the fact that just a few months ago, Vox itself had a headline celebrating AB5 calling it a "victory for workers everywhere." Except, I guess, the freelancers who worked for Vox.

But it's not just Vox (vulture or not...). CNN is reporting that many other news sites are suddenly changing their practices with contractors, sometimes substantially cutting back on the work they can provide.

...finding talent isn't easy in small markets. Thadeus Greenson, news editor at the North Coast Journal, which covers California's Humboldt County, told CNN Business his outlet has relied on one writer for a weekly column about live music in the area.

"In a small rural county, writers like this are rare, and we now have to scramble to find another one who can write 17 of these columns for us next year," Greenson said. "If we can't find that person, we will have 17 weeks when readers don't get this service."

The music columnist has another full-time career and is not interested in coming on staff, "even if we could somehow fund a position for him," Greenson added.

On top of all that, an organization representing freelancers has now sued the state of California, arguing that the bill is unconstitutional. The the lawsuit was filed by the American Society of Journalists and Authors along with the National Press Photographers Association. The lawsuit says that by specifically making definitions about the press, the lawsuit runs afoul of the First Amendment, which has long rejected attempts to "classify" journalists in any form.

By enforcing content-based distinctions about who can freelance— limiting certain speakers to 35 submissions per client, per year, and precluding some freelancers from making video recordings—Defendant currently maintains and actively enforces a set of laws, practices, policies, and procedures under color of state law that deprive Plaintiffs’ members of their rights to free speech, free press, and equal protection, in violation of the First and Fourteenth Amendments to the United States Constitution

There's also a copyright angle (isn't there always?):

In addition to these unavoidable costs of converting freelancers to employees, Plaintiffs’ members who are forced to become employees because of AB 5 will also lose ownership of the copyright to their creative work and control of their workload unless they are able to negotiate to retain that right

Ownership of the copyright of their work is especially pressing for NPPA’s members, who license their photographs and videos to their clients, but often retain the copyright to such work, which they can then relicense for additional income. Under the Copyright Act, the copyright in a work created by an independent contractor vests with the creator.... However, the copyright in a work created by an employee is usually owned by the employer, unless the employee is able to negotiate to retain that right.

Gonzalez also mocked the lawsuit and has tweeted some nonsense about how companies should just follow labor laws. However, last Thursday, there was a glitter of hope as she actually tried to engage, rather than attack her critics, asking for thoughts on one approach to potentially limit the damage to journalism freelancers:

This is a small step that wouldn't necessarily help most freelancers. At issue is that AB5 includes an exemption that says if it's a small business, such as a sole proprietor, they are not subject to the law. So, in other words, if a freelancer sets up a sole proprietorship corporate entity, he or she could continue to freelance if the publisher contracted with that entity. Of course, that would create significant additional costs for freelancers, as they'll now have to set up a corporation, and handle all of the administrative tasks and costs associated with doing so. This might be the right move for some freelancers, but it's not a real solution.

Again, there are real concerns about ways in which companies might exploit workers -- but it should be pretty obvious that something is wrong if your plan to protect people from being exploited actually is causing them to lose jobs and contractual relationships they were happy with. Part of the problem is do-gooders who think they know better than everyone else, insisting that freelancers must be exploited, when most of them don't appear to believe they are. In that case, you're not solving a problem, you're making one.

Filed Under: ab5, california, contractors, employees, freelancers, gig work, journalism, lorena gonzalez
Companies: vox media

Freelance Columnist Suggests Workaround To California's AB5: Submit One Giant, Regularly Edited, Column

from the something's-wrong-with-the-law dept

We recently wrote about the many problems (even if created through good intentions) with California's new AB5 law that will turn many freelancers into employees. As we noted, a big part of the problem is that many freelancers don't want to be employees, and the law will almost certainly backfire, in making companies wary of hiring freelancers in California. The one area we focused in on (though many are impacted) is journalism, where the author of the bill, Lorena Gonzalez admitted upfront that she chose 35 submissions per year as the dividing line "arbitrarily," despite the fact that many freelancers will contribute a much higher number than 35 stories for many publications.

Andy Kessler, who is a freelance columnist for the Wall Street Journal, has a new piece highlighting how silly this new law is, including the fact that it seems based on the assumption that freelancers all really desire to be employees.

Like many independent contractors, I prefer not to be hired as an employee. I don’t want to attend company picnics or sit through mandatory sensitivity training. Shouldn’t I have the ability to choose? Apparently not in California, a job-destroying wrecking ball. On a more serious note, many disabled people or parents with young children would rather work freelance from home than trudge to an office. Retaining more workers directly will send employers’ costs up, up, up.

But Kessler has come up with a... uh... unique workaround so that he can continue his (mostly) weekly column at the Wall Street Journal. Just do it all as one giant submission that is regularly edited:

I could invoke the First Amendment and free speech, but I doubt it would fly. Maybe I could roll out the big guns by telling the court the law restricts my life, liberty and pursuit of happiness. Especially liberty, which to me means, “Stop telling me what I can or can’t do.”

Maybe I should just keep quiet, but I guess that train has left. Instead, I plan to send one giant “submission” to The Wall Street Journal on Jan. 1, subject to updating and editing by me, which they are free to cut into 48 pieces (I do get the Monday holidays off). If that doesn’t work, I’ll claim I’m a psychologist, easing the pain of every lab rat abused by California politicians. After that, I hear Nevada is nice this time of year.

This is all obviously kind of silly, but that's part of the problem. When the law has people looking at these kinds of silly solutions, perhaps the problem is with the law.

Filed Under: ab5, andy kessler, california, freelancers, lorena gonzalez, workarounds

Bad Laws And The Best Of Intentions: Law Designed To 'Protect' Gig Workers May Destroy Journalism Freelancers

from the bad-ideas-done-badly dept

For years there have been arguments about the whole "gig work" economy, and how the various "gig workers" should be classified. Specifically, it historically came down to a question of whether or not they should be seen as contractors/freelancers or employees. Of course, the real answer should probably be "neither" and there should be a different classification altogether (if we must classify them). However, following a California Supreme Court ruling that found that the so-called "ABC Test" should be used for determining employment, California pushed for a law codifying that rule, which would, in theory, force tons of companies to reclassify contract/gig workers as "employees." Governor Gavin Newsom signed the bill into law last month with a signing statement that claimed it was to combat the "hollowing out of our middle-class..." and suggesting this will somehow help workers.

Of course, there's what politicians say, and what their bills will actually do. And, so far, this bill, AB5, is looking like it will be a complete and utter disaster. First of all, on the side of gig workers for companies like Uber/Lyft/etc., those companies have already made it clear that they don't think the law applies to them, even though they were the kinds of companies most often cited when discussing the law. On top of that, they're pushing for a ballot measure that would effectively exempt them from the law even if it does apply to them (we've already discussed in the past just how ridiculous California's ballot measure procedure is...).

So, there's a damn good chance that this law won't come close to impacting the types of workers everyone was told it was designed to benefit. Instead... who it might hurt most are... journalists. A huge part of the journalism world works with freelance journalists, and they're now all realizing that the law may make journalism freelancing close to impossible. The author of AB5 had an apparently arbitrary and nonsensical standard applied to the bill concerning who would no longer qualify as a freelance journalist: anyone who writes more than 35 articles per year for a publication.

As for how lawmakers settled on the 35-submission figure, Gonzalez says that she and her team decided that a weekly columnist sounded like a part-time worker and so halved that worker's yearly submissions. After protest from some freelancers, the number was bumped up to 35. "Was it a little arbitrary? Yeah. Writing bills with numbers like that are a little bit arbitrary," she says.

That... is not good. When the lawmaker herself is admitting the process was effectively picking a number out of thin air and then making arbitrary adjustments. That's bad. And journalists are quite reasonably freaking out:

The author of the bill, Lorena Gonzales, has been responding on Twitter aggressively defending the plan. She eventually felt enough pressure to admit that she's open to change... but that they can't be put in place until after the law goes into effect in January.

Of course, that doesn't ease any of the concerns of tons of journalism freelancers, especially in California, who are completely screwed by this "arbitrary" standard that completely messes up their ability to be journalism freelancers. Also this comes after she retweeted someone calling one of the freelance journalists calling out the problems of this bill "a selfish piece of shit."

There are, clearly, good intentions behind this law. The concern about exploitation of workers by companies -- especially giant multi-billion dollar operations -- is a legitimate concern. But, as with so much that happens when you get politicians trying to write legislation without truly understanding what's happening, you get an end result that that doesn't solve the actual problem of exploitation, and only serves to make life worse for people who have the least power in the situation in the first place.

Filed Under: ab5, abc test, california, classifications, freelance, freelancers, gig economy, gig work, jobs, journalism, lorena gonazalez

Supreme Court Says Courts Still Have Jurisdiction Over Unregistered Copyrights

from the how-big-a-deal-is-this? dept

There have been a series of lawsuits over the past decade or so concerning newspapers and magazines republishing old content that was created by freelancers in digital format. Basically, the publications had freelancers create content for publication. Years later, this wonderful world we know as the internet became a big deal (and, before that, CD-ROMs) and the publishers wanted to republish their archives in digital format (first CD-ROMs, then the internet or other electronic database). Some of the freelancers got upset, saying that the publications were reusing their content without permission, and that the license to use the content had been for the one use only. Lawsuits were filed and eventually, in the Supreme Court ruled that this violated the rights of freelancers. That set off a flurry of other similar/related lawsuits. In one of those other cases, the publisher and freelancers eventually reached a settlement -- but not all of the freelancers were satisfied with it.

In appealing the settlement, it was noted that many of the freelancers had not registered their copyrights. Now, as you hopefully know, you automatically get copyright on any new content as soon as it's set in tangible form, but if you decide to register it, it gives you additional privileges and remedies against infringement. In most cases, not having a registration greatly limits what you can do in terms of a lawsuit against infringement. So the issue in this lawsuit -- Reed Elsevier v. Muchnick -- became whether or not those unregistered stories (and their authors) could be covered by the settlement.

Copycense points us to the Supreme Court's ruling (pdf) which says that, contrary to what the Appeals Court had ruled, it is perfectly fine to include unregistered copyrights in the court's jurisdiction. While some are reporting that this means you no longer need to register to sue, I don't think that's what the ruling is actually saying. It simply says that just because you haven't registered, it doesn't mean that it's outside of the court's jurisdiction. So it sounds like this means that unregistered copyrights can get included in a settlement/class-action lawsuit like this one, but the holders of those unregistered copyrights might still have difficulty (or great limits) should they try to bring the lawsuit directly themselves. It would be great to get some of the copyright lawyers in the community here to weigh in as well.

Filed Under: copyright, freelancers, registration
Companies: reed elsevier

Court Says CD-ROMs Of Magazine Archives Don't Violate Copyrights Of Article Authors

from the phew dept

There have been a series of lawsuits over the years concerning whether or not magazines could create CD-ROM archives of their magazines without having to pay all their freelance authors again. The court rulings have been mixed, to say the least -- with some ruling one way, and others ruling the other. The end result was some rather twisted logic that suggested magazine publishers could republish magazines via CD-ROM, but only if they did so in an incredibly annoying fashion.

Why? The reasoning shows the twisted impact of copyright law, but here we go: basically, if the CD-ROM is just a very limited reproduction of the magazines without any additional features (search being a key one), then it's okay. As soon as you add in anything useful that a digital version would allow (like search), then suddenly it changes the nature of the work, and it somehow violates the copyright of the writers. Bizarre? Indeed.

Luckily, however, in one of the ongoing cases, a full appeals court rehearing has reversed an earlier ruling, pointing out just how ridiculous this interpretation is. So, at least in this circuit, publishing a CD-ROM archive (even one with a search engine) appears not to violate the copyright of freelancers. However, as that article notes, what's truly scary is reading through the dissent by the judge who insists that the inclusion of that search engine really does change the very nature of the work, and who controls the copyright. Where it reaches the level of the truly absurd, however (as pointed out in the link above), is where one of the dissenting judges actually suggests that not allowing these archives to go forward wouldn't impact the historical archives of this content, because magazine publishers could just store archives that would only be available to be "utilized primarily by researchers and scholars." However, actually taking advantage of what the technology allows, and making it so everyone can benefit, and you've run afoul of copyright law. Luckily, the majority overruled this tortured reasoning.

Filed Under: cd-roms, copyright, freelancers, magazines, republishing