This is part of a "Pay Teenagers" write-off organized by itztru. I'm generally not in favor of participating in write-offs. Nor am I generally in favor of giving out free legal advice. But the subject presented some interesting legal issues that I thought I might enjoy researching, or at least thinking about, so I agreed to participate. The subject? "Should minors be paid for their contributions to the site." I apologize in advance for the length of this review. After three weeks of work and editing, I simply didn't feel I could address the issues that needed to be addressed in fewer words.

The other fine participants ni this WO are: The lovely and talented hostess itztru; thedragonweyr; paramendra; kristinafh; ptiemann; ainsleyjo; 29th_candidate; candice923; orestes84; chris_billings; and lunadisarm
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My first inclination was to say, "Hell no, they shouldn't be paid." But my motivations were un-pure. I thought it better to stiff the little tykes because I don't want to give them too much incentive to participate while they still think "sux" is an acceptable descriptor. But the truth is, there are plenty of bad writers over 18 on this site, and there are some pretty incredible teenagers, too. Take a look at smartgirl and tell me if I'm wrong. Plus there are some pretty active teenage participants in the "community." Take a look at who organized this write-off.

Being a lawyer type, I figured I'd approach it from a legal angle. I took a peak at why epinions doesn't in fact pay minors for their contributions. The answer:

"There are many legal restrictions in dealing with minors. While Epinions is not currently aware of any specific restrictions on paying minors for writing opinions, Epinions has not had the time or resources to spend on outside legal fees to research the question. For that reason, Epinions requires users participating in the Eroyalties program be over 18. If minors join the Epinions community before attaining their majority, their earnings will simply accrue until they can verify that they are over 18." [http://eyore.epinions.com/help/index.html?show=faq_15#6]

This is not really an acceptable legal position. If epinions is going to accept written contributions from minors, they have a moral and legal duty to figure out where the law stands with regard to compensating those minors. They cannot simply say that they haven't bothered to figure out an answer, so they're going to deny minors the benefits they extend to everyone else on the site.

I. Employment Law

My first thought was similar to that of many others: "They must be thinking about child labor laws." You see, the Federal Fair Labor Standards Act (FLSA)[1] and most states outline rules relating to the employment of minors. Generally, 14 and 15 year olds can work a limited number of hours in non-hazardous jobs. Sixteen and 17 year-olds can work unlimited hours in non-hazardous jobs. Kids under 14 aren't supposed to work at all, except in their families' small businesses, in the creative arts, or as newspaper delivery imps.

A basic principal of employment law is that employment law only applies to relationships between employers and employees. I know that sounds obvious, but for some people it isn't. We frequently fall into the trap of believing that if A is paying B for something, then A is B's boss (employer). That's usually not the case, though. The threshold question for us, both adults and minors is: "Are we employed by epinions" in a legal sense? If the answer is "no" then, like most payment relationships, our interactions with epinions are governed by Contract Law, which is an entirely different animal, with different and special rules pertaining to minors.

A huge body of case law in every state deals with whether or not a particular relationship is one of "employment", "contract" or "other." Most courts look to a few factors to determine if one is an employee:

1. Are the means of work controlled by the presumptive employer?
2. Can the presumptive employer dictate the hours of work?
3. Is the presumptive employee paid an hourly wage, a salary, a commission or on a "piece" basis?

Under any reasonable analysis, none of us, including minors, are employees of epinions. We work on our own computers, from our own homes, when we want (or never if we so choose) and we are paid a mere commission on our written work, if someone reads it.

So if none of us are employees of epinions, Federal and State Labor Laws (including the FLSA) simply do not apply to this relationship. In short, child labor laws to not prohibit – in fact, do not even address – the payment of children for their written works on this site.

Unfortunately, our analysis doesn't end there, because if employment law doesn't deal with the relationship between epinions and minors, you can be sure that some body of law does. In all likelihood, that body of law is Contracts.

II. Contract Law

In a legal sense, a contract is an exchange of rights. This entails three elements: an offer, an acceptance and "consideration." These first two elements are pretty easily understood. If I offer you my car in exchange for $1.00 and you say yes, then we have an offer and acceptance. The third element, consideration, is much more complicated and is filled with special rules and exceptions. But the basic idea is that the offer and the acceptance only becomes a contract when I give up a real right (my right to the car) in exchange for your real right (your right to your money). Now it's important to keep in mind that each side has to be giving up a real right. You can make a bad deal, and it'll still be a binding contract, but it has to be a real deal. So in the above example, unless I'm selling you a 1974 Ford Pinto, the $1.00 exchange might well be considered "nominal consideration" or "sham consideration" and the contract would not be valid. A court would call my giving you the car for a dollar a "gift" and gifts, usually, aren't binding.[1] I could change my mind even after you accepted the offer, and there's nothing you could do about it.

So what does this have to do with epinions not paying minors for their work? Well, why don't we start by taking a look at how Contract Law governs the rest of our relationships with epinions, and I'll get to minors in a minute. But even before we get to that, I need to go off on a tangent and talk about what it is that we're all offering to epinions, and what it is that they're accepting.

III. Intellectual Property Rights

Intellectual Property. It's a big term, I know, and it's one we're sick of hearing, what with Napster and so many people not knowing what they're talking about. Intellectual Property is a catch-all term referring to things like patents, trademarks, trade secrets and copyright – anything of value that is an original product of a person's creativity (in contrast to "real property," like land or "personalty" like microwaves, that are possessed, but not necessarily created, by it's owner). The issue for us is Copyright.

Many of you think that there's some magical process you have to engage in to "copyright" something you write; that you must register it with a government agency and/or include that little © symbol somewhere on the page, or it's free game. That is not the case. Anything you create that is your own creative and original work is automatically copyrighted the second you place it in a "fixed form" (e.g. put it down on paper.) You don't have to do anything else. So when you set out to write that 1000 word toaster review, you have a copyright on it, even when you're only one paragraph in.

Moreover, that copyright gives you certain rights in the use of that writing. With some exceptions that don't apply here, other people aren't allowed to use it, copy it, sell it, extract it or claim it as their own. It's your property to do with as you please, just as your toaster is your property to do with as you please. One of the things that people are pleased to do with their copyrighted works is to grant licenses to others. That is, they give others the right to use, reprint, extract, copy, sell and/or claim as their own. That's what we are offering to the owners of epinions.

IV. The Return of Contracts

Those of us who are paid for our writing are granting a limited license to epinions. That license is a type of contract. In exchange for the valuable consideration of 1 to 3 cents per page view, we are granting epinions the right to use our writing on their site. We are also limiting our own rights to use those products in certain ways (e.g. posting them on most other sites). We have a contractual relationship with epinions that entails both sides receiving "consideration." Put in technical terms: We offer stuff to them; they always accept our stuff, and we both give up our rights to our respective stuff (us to the right to repost, them to their right in about 37 cents).

So what does all of this have to do with epinions not paying our good friend Cindy?

Here we go: In every state, there is a limitation on the right of minors to enter into contracts. Agreements entered into by people under 18 are considered "voidable" which means they can be cancelled at the sole discretion of the minor, which is why most car dealers won't sell cars to 16 year olds, but rather, to their parents. If the 16 year old gets that new Pathfinder in their own name, and a week later they go out four-wheeling in it and discover that sports utility vehicles aren't really to be utilized in a sporty way and they roll it over, the 16 year old can just take it back to the dealer and get her money back. That's the general rule. There are some exceptions.[1]

So, as discussed above, what I am doing is entering into contracts with epinions. And I can do that; I'm a grown-up. I'm free to make bad deals. Fourteen year olds are generally not free to make bad deals for themselves, though. Like the mentally disabled and certain types of drunk people, minors are thought to "lack the capacity" to contract with others. Is that fair? Probably not, in a lot of circumstances. But as a society, this is one of the public policy choices we've made in an attempt to protect the unworldly from the unscrupulous.

The fact that minors can't enter into binding contracts with epinions begs several questions. This is particularly so because epinions does, in fact, accept the written submissions of minors.

The terms of service don't mention it, but epinions certainly knows that their relationship with minors is different from their relationship with the rest of us. When I post a restaurant review, I have agreed that epinions forever has the right to use that review. Even if I take the review off their site, according to the TOS, they are allowed to keep the review in their database and sell it later or use it to their heart's content for marketing purposes. They just won't use it under my profile page any more. I have given up a big property right, but they have given up 37 cents. Might be a bad deal for me, but I believe it's a valid contract. And it's important to keep in mind what the deal is: epinions is contracting for ALL of these rights, not just the right to use my review temporarily.

V. The Probable Epinions Argument

A. The Problem of Voidable Contracts

When a minor posts a review, she is merely placing it on loan with epinions. At any time she can revoke her "copyright license." And when she deletes the review, epinions isn't allowed to use it any more. Once she has voided the contract, epinions has no rights in her work. Now if epinions paid her for that work, they wouldn't really be buying the same thing they're buying when they pay us for our work.

So what is epinions to do? From their perspective, it's understandable that they don't want to pay for mere copyright loans. They want the money they pay out to be used to permanently expand the database of consumer knowledge. If a 14 year old is only renting her consumer knowledge, then epinions is well within it's rights to pay less for that effort than for the materials they get to keep forever.

But oh, what a hassle. What are they to do, pay ½ cent per hit for articles from minors? Or should they pay the same amount to minors as they pay to everyone else, but demand their money back if the minors delete their work? After all, even when minors decide to void a contract, they still normally must give back whatever they got out of the bargain. But imagine the transactional costs involved in trying to get back $20.00 here and $80.00 there. It hardly seems worth the effort to get involved with minors at all.

B. The Incentives to Keep Teens From Writing

Moreover, epinions certainly has little incentive, as a practical matter, to provide minors with incentives to post. While there are some notable exceptions, the vast majority of reviews posted by teenagers are poorly written, poorly argued and focus on areas where consumer reviews are unlikely to be actually used. There is ample evidence that teenagers do not make purchasing decisions based on consumer reports. Rather, they are uniquely susceptible to marketing efforts and the more personal word-of-mouth that comes from their own friends. Fifteen year olds simply don't go looking for information before they set out to buy the new Backstreet Boys album or the latest computer game. They frequently look for such information AFTER the purchase has been made, because they seek ratification of their tastes and consumer choices. They don't, however, tend to seek challenges to those tastes and choices. If you think I'm wrong, there are two ways to check it out. Take a look on someone's profile page who writes only or primarily videogame reviews or teen bands and take a look at their ratio of member to nonmember hits. Or, the next time you see a videogame review in the "just in" box, write down the number of ratings it has just as it disappears from view. Also write down the URL. Now go back and check it a month later. You'll find that almost all of these reviews will have fewer additional hits after a month than they earned in the first 20 minutes on the site. Compare that to any well written electronics review. If you believe my assumptions, you should also believe that epinions makes almost no money from reviews of "teenage products" written by teenagers. They therefore have no reason to go out of their way looking for reasons to pay minors.

Adding insult to what epinions must feel is an injury, teens simply don't read as many reviews as adults do on this site. One of the reasons advertisers are willing to pay for member page views, presumably, is that those page views help build brand (name) recognition. Obviously, non-member page views are more important than member page views, because it's the non-members that are presumed to be actually shopping for, and eventually purchasing, a product. But my eyeballs are worth something to advertisers too.

Look at it this way. I'm not in the market for advanced business computer products right now. But I read ptieman's reviews anyway, because he's a good writer, I enjoy reading good writing, and sometimes I learn something that I didn't necessarily need to learn, which I happen to also enjoy. And almost every time I read something he's written, there's a little Dell Computers banner ad that pops up at the top of the screen. Now, I'm not going to buy a computer, any computer, any time soon. But someday I probably will. And when I do, you can be sure that the 10,000 times I eyeballed a Dell ad will have an effect on my buying decisions. I may not choose to buy a Dell, but I will surely know that there's a company out there called Dell and they sell computer products.

So another part of the reason epinions is willing to subsidize my restaurant reviews, which, in reality, don't make the site much money, is that the company's advertisers know I'll look around and read other reviews. I'm valuable to advertisers, so I'm valuable to epinions. Teens are not of as much value to the specific advertisers on this site, because they don't read as much. They post. They pay attention to comments on their own page. They read the occasional reviews of the few subjects that interest them, but they don't stray much beyond their specific areas of expertise. What's more, as discussed above, they are not much influenced in their buying decisions by the reviews contained in their areas of expertise.[1]

Adults are different. About 70% of my reviews are about San Francisco restaurants. But of the now 88 people who always read every one of my reviews, about six or seven live in the Bay Area. The rest come back to read me, not the product. And when they come back to read me, they always see that Keen.com ad chillin' up top. Keen gets to build name recognition. But again, it's only building name recognition among adults, because there simply aren't many teenagers coming to read me. And that's a good thing, too. My writing ain't meant for kids.

VI.. Why Epinions is Wrong, What They Should Do and What Teens Can and Should Do

The company has a lot of valid points, if these indeed are the points they would make. The skinny, from the company's perspective, is that if they paid minors, they would be paying for less than they get from adults, in terms of both intellectual property rights and ad revenue.

I wish I could argue that epinions is cutting off their nose to spite their face, that they are being short sighted, and that it would pay for them to pay minors for their contributions. But I can't. Epinions is a corporation making relatively smart corporate decisions. I will, however, argue that there is no reason why epinions CAN NOT pay minors, and there are many reasons why doing so is simply the right thing to do.

A. Paying Teens for Their Contributions is Not Unlawful.

As discussed above, in relation to Employment Law, the simple fact is: These laws don't apply to the kids that post reviews on this site. None of us – not me and not the kids – are employees of the site. Since the kids aren't employees of epinions, the state and federal laws that deal with what jobs kids can have, how old they have to be and minimum wage issues for kids, should be thrown out the window. There's no statute that prohibits epinions from paying the kids for their writing.

As also discussed above, paying people for their postings is a form of contract, one that can not be enforced when entered into with minors. But it's important to distinguish "unenforceability" from "illegality." While epinions can't force the kids to give up their intellectual property right forever in exchange for the pennies they pay, there's nothing illegal about epinions entering into this contract with the kids anyway. The kids can cancel it later, but it's not an illegal contract at the moment it's made. It's the difference between potential and reality. An airplane can and might crash, but it doesn't automatically do so every time it takes off. Likewise, a minor can and might cancel their contract with epinions, but most of the time they won't.

So there's no reason under contract law either that epinions is not allowed to pay the kids for their writing. Nothing stops them from paying but their own corporate decisionmaking.

B. Paying Teens for their Contributions Won't Harm Epinions

Closely related to the immediately preceding point is this: Epinions doesn't really have much to lose by paying teenagers for their writing. While I don't have any demographic information about the site, I'm willing to bet that less than 5% of all reviews submitted are submitted by minors. I also believe that the vast majority of teen-submitted epinions, like adult-submitted epinions are posted, along with a few more by the same author, then forgotten. Most people never hit 10 bucks. Even those who do don't stick it out over the long haul here. The ones that do stick around write heavily in the 1 cent categories. So I'll go out on a limb and say that paying minors might kick up overall costs 1 to 2%, max. If epinions can't handle a 2% kick in the profits, then the rest of us are in trouble, because the site won't be around long, anyway.

C. Paying Teens for their Contributions is the Right Thing to Do

I know this is a long way to go to get to a point that has nothing to do with law or reason or logic. But this is something we know intuitively, and it's really the only point that matters: Teens do the work, just like the rest of us; it's only fair that they be paid too.

Look, epinions has set up a system whereby the database is created using a sort of highly democratic set of rules. There is no arbiter of good taste sitting on high here. There is no corporate staff with veto power over the value of individual reviews. We let the community decide what's good and what's bad; what's useful and what's not useful. That system has it's inherent flaws (like the fact that positive reviews of "Left Behind" get good ratings from members) but those are flaws that epinions has chosen to live with in the name of a pure word-of-mouth site. Well, let the democracy apply to the kids too. In spite of what I've argued above, they may be no more likely than half the other people on the site to post useless contributions, and there are enough exceptions to all the anti-teen generalities above to merit keeping them here.

After 5,000 words, I guess I feel I ought to repeat the central point here a few dozen times just to balance it all out: Teens are contributing something. It's right and fair and just that they be paid. Paying them provides a vital community service in the sense of the real community, not just the virtual one we all refer to epinions as. It teaches kids certain values at a low price. Think about it this way: Kids who write poorly in school may get – let's say, a C on their papers. They may or may not have an incentive to learn to write better, because they may or may not care whether they earn As and they may or may not think that they're getting Cs because the teacher doesn't like them or because the geek in the glasses is setting the curve too high. But throw some money into the mix, and I submit that some teens will stop caring about the curve and the people who don't like them and will instead just focus on WRITING BETTER. It's basic behavioral psychology, and I think I've seen it work.

If you don't believe me, go take a look at the host of this write-off's early writing and take a look at her most recent. She started off better than most in her class, but I'll be shocked if you come back and leave a comment here that says she hasn't gotten even better. The fact is, she wants more hits, she wants more friends and she wants less abuse. She wants to be heard and respected. And for 6 months she has worked and clawed and fought daily to get more hits, to write better, to be more open minded, and to become part of a community. How can it not be worth it to epinions to pay 20 cents at a time to be creating bigger, better people, stronger, more articulate writers, and kinder, more devoted members of their community ... and ours.

VII. A Final Word no What Teens Can Do

I have no idea what kind of demographic information epinions keeps about the site and who uses it and how they use it. I have no idea if the arguments that I've advanced above about what epinions is thinking are actually right. But if they are, I think that teens can advance their cause by doing a few things that will make them more valuable members of the site and give the company more incentive to keep them around. My advice, in short, is the same advice I'd give to anyone:
1) Start Reading More, Writing Less
2) Click Those Banners From Time to Time
3) Try Your Hand at Some Non-Entertainment Product Reviews
4) If all Else Fails, Get a Parent to Open the Account

Alright, now I'm as tired of looking at this as you are. Thanks for reading. And I look forward to zzJulia's corrections of my feeble legal arguments.

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[1] 29 U.S.C. 201, et seq.

[1] I should take a minute to apologize here for the rampant use of qualifiers and buffers in this review. For almost every legal rule I state herein, there are exceptions. For instance, a gift can be binding if there it detrimental reliance. But most of these exceptions require lengthy explanations and are not relevant to the discussion here. You're just gonna have to trust me on that.

[1] For instance, minors may be bound by contracts they make for "necessities" (e.g. food, shelter and emergency medical care). Also, under many circumstances, the minor may have to pay "restitution" for destroying the object of a voided contract.

[1] I know I'm going to get flamed with tons of anecdotal evidence to the contrary. But I'm speaking in general terms. I believe that if you compare the adults to the teens on this site, my generalization has exceptions, but it holds up as a general rule.

Recommended: Yes

Great Music to Play While: Hanging With Friends