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I’d forgotten to set a due date on one January to-do item, so I missed that Ellora’s Cave v. Dear Author docket item 69 became available last week. I finally thought to check today, and have uploaded it to my Dropbox and also updated the docket.

Docket item 69 is a transcript of the case management conference that took place on January 26, 2015. There are a lot of tidbits in this 22-page document that are interesting, and I’ve included three highlights below.

Discovery Dispute Wasn’t

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Transcript of the above (emphasis added):

MR. MASTRANTONIO: Your Honor, essentially I would go forward with the depositions of the persons I would need to depose, namely the author of the article and perhaps some of her associates.

I do have some written discovery. There may be some subpoenas I have to issue as well.

The thought would be that I would do all of that. Defense counsel would not have to go through the prolonged process of deposing my clients, going through records and so forth, unless after a summary judgment motion is filed and not granted, then he would be able to take those steps.

But the thought would be that if I do my discovery first and he’s confident he’s going to win on summary judgment, we’re going to save everyone a lot of time and money in the discovery process.

In other words, Steven Mastrantonio, counsel for Ellora’s Cave, stated the very discovery plan that Randazza later claimed they agreed to, in contradiction with Mastrantonio’s filing in docket item 48.

Ellora’s Cave Offered A Settlement

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Excerpt from screencap:

[THE COURT:] Has there been any settlement discussions? What has been the plaintiff’s demand?

MR. MASTRANTONIO: Your Honor, the demand was to have the article retracted and for $50,000.

THE COURT: Has there been any offer in the case?

MR.RANDAZZA: No, Your Honor.

THE COURT: All right. Well, then there is no need for mediation, arbitration, summary bench trial if there is not any real efforts at this point. If you are so far apart, I’m not going to waste anyone’s time in that regard.

You’ll note that the Curious post is still up, and was later the subject of a relatively small correction post.

Judge Asks About Another Case…That Randazza Worked On

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THE COURT: Am I mistaken? Maybe I’m thinking of another case or another issue. Is there not a case out of the Sixth Circuit? Wasn’t there a case down in Cincinnati involving a cheerleader of some sort who was the subject of a blog or subject of some disparaging remarks?

MR. RANDAZZA: Yes, Your Honor.

THE COURT: And didn’t she prevail at trial or something of that nature?

MR. RANDAZZA: It was Jones versus Dirty World Entertainment, Your Honor. I actually worked on that case.

THE COURT: Did the plaintiff receive, what, $38,000 in damages there?

MR. RANDAZZA: It was overturned on appeal.

It’s actually the only case law I could find on CDA § 230 in the Sixth Circuit. Still, gotta be disheartening to be opposing counsel when the defense’s attorney is so so so far ahead of you.

Originally published at deirdre.net. You can comment here or there.

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Today, a dismissal order in the Ellora’s Cave v. Dear Author case was filed by federal court Judge John R. Adams. Here is the entire body text of that order:

On October 22, 2015, the parties contacted the Court to confirm that the parties reached a settlement agreement on all claims. Therefore, the docket will now be marked “settled and dismissed without prejudice.” The parties may submit within thirty (30) days of this order a proposed entry setting forth different terms and conditions relative to the settlement and dismissal of this case, including dismissal with prejudice, if they deem it necessary. If approved, the proposed entry shall supplement this order. This Court retains jurisdiction over the settlement.

IT IS SO ORDERED.

Therefore I’d like to make a point clear again: despite the rumors circulating that the judge ordered the settlement, let’s put it this way: what the judge wrote shows that claim to be far from reality based.

In my limited experience reading dockets, however, it’s unusual for a completed settlement to be “without prejudice.”

Links to More Authors Speaking Out

(a.k.a. The Department of Holiday Shopping)

Right after the settlement was announced almost two months ago, there was a pall of silence for a bit, but since then, quite a few more authors have spoken out about their experiences with Ellora’s Cave.

Here are some of those links with a summary of each. I’ve listed the authors in alphabetical order by first name.

  • A.M. Griffin posts asking readers not to purchase her Ellora’s Cave titles (the “Dangerously” series). Her post also has links to her non-EC titles, including some under other pseudonyms.
  • Ann Jacobs posts about having first published with EC in 2003, and how her eyes were opened. (Ann still has a motion pending in the Ellora’s Cave v. Dear Author case claiming she’s owed $193,000 in back royalties.) Ann has also asked readers not to purchase her EC books while they’re still at EC. Here’s Ann’s Amazon author page.

  • Cait Miller started out with Ellora’s Cave in 2003, which is fairly early. Quote: “Maybe two years ago my sales had dropped so drastically that I started to question my books fit with EC.” Note that this was before the Dear Author article and thus the lawsuit. She doesn’t have any non-EC books available at this time, so I’ll link to her author page if/when that changes.

  • Denise A. Agnew has asked readers not to purchase her Ellora’s Cave titles while she’s still at EC. Here’s Denise’s Amazon page.

  • Frances Stockton started out with Ellora’s Cave as a Paranormal Historical line for the company’s Cerridwen Press imprint, which later became their Blush imprint. Frances’s Amazon page is here, and her non-EC title is here. I’ll speak to Jaid Black’s comments on Frances’s post in a separate entry.

  • Jane Leopold Quinn posts her own story.

    I’m out of the mix since I’m one of the authors who paid money to get my rights back. I’ve never spoken up in public before about this, but to see people claim that EC won the lawsuit and DA apologized is NOT what has happened. I’ve been wanting to speak out but wasn’t sure what venue to use. This is as good a venue as anywhere. EC still has its fans, but the public should at least take into account that many, many authors saying the same things about a publisher just might be telling the truth.

    Jane’s Amazon author page can be found here.

  • Kate Sherwood published one novella with Ellora’s Cave and describes her experience. As for timing, she says:

    I asked for my rights back, I think for the first time, shortly after EC sued DA. I just didn’t want any money from my writing going to support that kind of nonsense. I was refused because my sales were still above the threshold. Fair enough.

    Kate’s Amazon author page can be found here.

  • Kelly Jamieson has told her story here. She first signed with Ellora’s Cave in 2009, and points out that she became dissatisfied with EC in 2012. I mostly know her as a Samhain writer and have read quite a few of her titles for that house. Kelly’s Amazon page can be found here.

  • Titiana Ladley spoke out on Twitter:

    Dear readers, please don’t buy my remaining 3 EC books. If EC can’t remember 2 pay me, then I hope you forget 2 buy. Thanks! #notchilled

    Titiana’s phasing out that pseudonym, and here’s her first title writing as Josie Jax.

Best of luck to all the above authors! (Especially those still waiting on reversions from Ellora’s Cave.)

Also, here’s a recent post from Tymber Dalton who has some important points about contracts.

Originally published at deirdre.net. You can comment here or there.

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This post was originally going to be about the Dear Author settlement, but then Ellora’s Cave’s former Managing Editor, Nina S. Gooden, spoke out. So I’ll cover that first.

Second, It appears that the gears are finally starting to show some traction and we’re starting to see visible signs of the Ellora’s Cave v. Dear Author settlement.

I’m going to give a summary of those recent developments, then I’m going to discuss a few rumors going around and my take on those rumors. This is likely to be the first of several such posts.

And, at the end, a follow-on to my previous Ellora’s Cavemen anthology post.

Ellora’s Cave Former Managing Editor Speaks Out

Nina S. Gooden posted this eye-opening (and mind-boggling) post today.

In the summer of 2013, I interviewed to work for Ellora’s Cave. I remember the initial conversation like it was yesterday. In order to find a quiet space, I sat in my sister’s van in North Carolina’s muggy 90-degree weather. That’s how badly I wanted to work for this company. I was hired for what I thought would be my forty-year plan. I left my long-term boyfriend in Las Vegas, as well as another Managing Editor position, and moved out to Akron, Ohio to be the Managing Editor for Ellora’s Cave.

She talks about the heartbreaking treatment of authors:

Even now—with several years’ worth of distance between me and the conference room that made me develop what my friends jokingly called a “mild drinking problem” for the duration of my stay in Ohio—I get chills thinking about it. The blatant disregard for authors as a whole, the almost maniacal plans to keep authors locked into contracts that were unfair, just so they couldn’t publish elsewhere…the whole situation broke my heart.

…and…

I don’t know why I thought that a group of people, who had laughed at a story about an author not being able to pay her medical bills because of missing royalties, would somehow care that I needed this job to maintain any kind of reasonable living situation.

Then, after she was laid off with the other professional staff in January:

Ellora’s Cave hasn’t answered a single one of my emails in the last year—except to tell me to email other addresses. My pleas for them to respond to background checks phone calls or to provide the promised letters of recommendation have gone unanswered. When I tried to contact them, asking for the paperwork for my curiously empty IRA account (an account EC should have been contributing to), all I heard was the crushing sound of disinterest. I hate that I am now on the other side of what the frustrated, frantic authors I helped hurt must have felt.

I’ve been in similar work situations (in another industry) and can deeply resonate with this post.

The entire post is worth a read, and it’s also a great cautionary tale for why you, as a writer, should negotiate the hell out of your contracts.

Dear Author Revelations about Court Costs

The Dear Author Defense fund page was updated yesterday, complete with the rather staggering amount of fees:

To date, I have paid the following in fees:

Randazza Law Firm: 115,712.29
Lefton Group: 2,855.00
Expert witness fee: 5,075.00
Brennan, Manna & Diamond: 8,936.06

The total was: $132,578.35

Note that the legal fund raised $55,086 (before fundraising costs from gofundme and PayPal), hence the vast majority was not covered by the fundraiser. Jane Litte adds:

I am so grateful for everything you all did to support this fund, and given everyone’s generosity, I just did not feel comfortable doing another round of fundraising. I should also note that Marc Randazza discounted his normal rate, so while fees were very substantial, they could have been even more.

Jane Litte’s Error Corrections

As covered in this Dear Author post.

My commentary follows:

I made some errors and want to correct them:

  1. Tina Engler has represented that she has not purchased a house in West Hollywood and has not indicated to me that she did.
  2. She has not gone on any recent Rodeo Drive shopping trips.
  3. The principals of Ellora’s Cave did not receive “no interest” loans.

  4. It has been represented to me that, at the time of the post, most or all authors had been paid within their individual contracts.

  5. Finally, Patty Marks has not said that the company will be entering bankruptcy or that any contracts will be sold in bankruptcy.

My commentary:

First, note that the correction is quite limited in scope given the wide-ranging narrative of the Curious post.

  1. Tina Engler has represented that she has not purchased a house in West Hollywood and has not indicated to me that she did.

    I’d previously mentioned that I’d found Tina Engler saying it was a lease. That said, it was a mistake, not a lie (nor defamatory!), and Jane’s context in the Curious post is still relevant: it’s an expensive place to rent, too. This correction seems to be all about Tina Engler’s ego.

  2. She has not gone on any recent Rodeo Drive shopping trips.

    @ataglanceRMC pointed out that Tina Engler said she was looking at houses in the area at the time that she checked in from Rodeo Drive. That said, Jane Litte’s statement wasn’t defamatory, nor was Tina Engler even a party. This correction seems to be all about Tina Engler’s ego.

  3. The principals of Ellora’s Cave did not receive “no interest” loans.

    This was actually not one of Jane’s representations, but something from the Brashear case that Jane cited. Maybe Ellora’s Cave should have fought harder on that docket.

  4. It has been represented to me that, at the time of the post, most or all authors had been paid within their individual contracts.

    Note that this assertion is very carefully worded, quite scathing, and says absolutely nothing about what Jane thinks the truth is, nor what the truth actually is, nor what you should believe.

  5. Finally, Patty Marks has not said that the company will be entering bankruptcy or that any contracts will be sold in bankruptcy.

    …but that says absolutely nothing about whether or not Ellora’s Cave is a going concern.

Instead, what we have are the following:

  1. A still-on-the-table legal action by author Ann Jacobs—perhaps including other similarly situated authors—with an unknown amount of downside risk. Ann claims that she alone is owed $193,000.
  2. Some authors have reported that they’ve been paid up through February 2015. Some have stated they’ve received payments covering periods as late as June 2015. So far as I’m aware, apart from the open questions about the royalty rate changes that Ann’s case is predicated on, no one is currently more behind than Feb 2015 or more caught up than June 2015. Under typical publishing-industry contracts, this situation—a publisher leaving authors’ royalties in arrears for many months—would constitute breach of contract. (I am not a lawyer and won’t be giving legal advice. Ellora’s Cave authors should read their contracts carefully and consult an attorney if they have questions or desire remedies.)

Department of Rumor Control

There are a lot of rumors floating around, so I’ll cover a few this time and more later.

Rumor: Ellora’s Cave Won the Lawsuit

(Rumor source: now-deleted facebook post by RT Booklovers Convention; here’s their apology.)

Fact: This rumor is false. The lawsuit was settled, which can be more accurately translated as: both sides lost.

Fact: Also, technically, the case is still not over. The judge noted a settlement had been reached on Oct 22, but there has been no stipulated motion to dismiss, nor has the case been dismissed by the judge. There is still the matter of Ann Jacobs’s motion to intervene, too.

Rumor: Dear Author’s Statement Was “Obviously Court Ordered”

(Rumor source: Emma Paul.)

Fact: When the court issues an order, there’s an item on the docket. There is no such item on the docket. Also, the copy of the order is downloadable by anyone unless it is noted as sealed. None of the judge’s orders are noted as sealed.

As of this writing, there have been no docket items since the judge’s note of the proposed settlement on October 22. When the settlement is final, the case is finally dismissed, and that has not happened yet.

Additionally, EC supporters can probably believe Ellora’s Cave’s lawyer on this (document here):

Finally and most egregiously, Mr. Randazza filed his brief within 10 minutes after local counsel for Defendant and undersigned had spent two days and many hours working toward terms of a tentative settlement agreement.

This was not ordered by the judge. Plaintiffs and Defense approached the judge the following day with a proposed settlement.

Anyone with a PACER account can verify that my copy of the docket matches the court’s record.

If you wish to do so, here are the steps:

  1. Create a PACER account on www.pacer.gov.
  2. Log into Ohio Northern District’s case filing system at ecf.ohnd.uscourts.gov.
  3. When the next page loads, click Query along the top.
  4. Enter the case number on the query page: 5:14-cv-2331 then click Run Query. (It may want you to verify the case number first.)
  5. You’ll see the home screen for the case. As you can see, I generally go to the docket report.
    ec-v-da-suit-home-screen
  6. Click Docket Report
  7. The next screen will allow you to limit the dates of the entries; if you don’t, it’ll run you thirty cents (last I checked; it may be forty now). Click Run Report.
  8. You will see this report. I’ve uploaded a PDF copy so that you can see that my Dropbox copy of the docket really is what’s up on the court’s site. Feel free to fact check me.

Here are all the orders by Judge Adams, larger (bolded) and smaller. I’ve linked to my dropbox copies, but you’re free to spend money downloading them yourself.

  1. Docket item 15: Marginal Entry Order granting Plaintiffs’ 13 Motion to continue.
  2. Docket item 18: Marginal Entry Order denying the stipulated 16 Motion for Extension of Time to Answer.
  3. Docket item 21: Case Management Conference Scheduling Order.
  4. Docket item 22: Memorandum Opinion and Order denying Plaintiff’s 12 Motion to remand to State Court.
  5. Docket item 24: Marginal Entry Order granting Defendant [Jane Litte’s] Motion to attend the case management conference by telephone. (I didn’t bother downloading this one.)
  6. Docket item 26: Order rescheduling the case management conference to 1 /26/2015. (I didn’t bother downloading this one.)
  7. Docket item 30: Order. The Court held a case management conference on 1 /26/15. As Plaintiffs confirmed they do not intend to pursue the motion for temporary restraining order that was pending, Plaintiff’s 5 motion for temporary restraining order is hereby denied.
  8. Docket item 37: Order and decision denying the non-party’s motion to quash (Doc. # 31 ). This was @pubnt’s motion.
  9. Docket item 41: Trial Order. Jury Trial set for 3/21/2016 at 09:00 AM in Courtroom 575 before Judge John R. Adams.
  10. Docket item 57: Order. Defendants have filed various motions, including a Motion for Clarification Regarding Preliminary Discovery, Motion for Leave to Supplement the Record in Support of Defendants’ Motion for Summary Judgment, and Motion for Further Discovery Pursuant to Fed.R.Civ.P. 56(d). The Court will conduct a hearing before Judge John R. Adams on these motions on 10/8/15 at 11:00 AM in Courtroom 575.
  11. Docket item 67: Order granting the Parties’ Joint Motion to continue the October 8, 2015 hearing on various motions. The Hearing is RESET for 10/22/2015 at 11:00 AM in Courtroom 575 before Judge John R. Adams.
  12. Docket item 68: Marginal Entry Order granting Plaintiffs’ Motion to redact Exhibit #13 of the opposition. (Doc. # 64 )(Related Doc # 65 ).

And that’s it. There are really only two substantive rulings in this case: denying Ellora’s Cave’s motion to remand the case back to Ohio state court, and the denial of @pubnt’s motion to quash the subpoena to Twitter to discover @pubnt’s identity.

To those spreading this rumor: put a couple of bucks where your mouth is and support accurate information.

Rumor: If I Buy an Ellora’s Cave Book Through Amazon, the Author Will Get Paid [by Amazon]

This is a misunderstanding of how royalties work. In the case where an author is unagented, the process is:

  1. Amazon pays the publisher.
  2. The publisher pays the author.

For an agented author:

  1. Amazon pays the publisher.
  2. The publisher pays the agent.
  3. The agent pays the author.

If #2/#3 isn’t happening, it’s not going to happen any more reliably because the customer bought the book through Amazon. However, when there’s a publisher that’s having payment issues, what it does add is a third-party that can be audited and/or subpoenaed.

Rumor: Ellora’s Cave Had a Rogue Employee Who Lied to the RWA

(Source: facebook commenter)

The source of the RWA’s censure against Ellora’s Cave was Patty Marks. (Court docket item 54-1.)

Rumor: Ellora’s Cave Proved Three Authors Were Lying in Court

(Source: Tina Engler)

This is false.

Fact: Nothing Ellora’s Cave submitted about any author was proven to be true in court. There were no rulings about the factual nature of any evidence about any author submitted in the case.

Except, of course, for @pubnt. Somehow, I don’t think that’s what Tina meant, though.

It’s not proven until the judge or jury agrees; please see above for all the judge’s orders. No jury was ever selected as the case didn’t get to the voir dire stage.

Ellora’s Cavemen Anthology Contract

I’ve been given a copy of what claims to be a 2008 Ellora’s Cave Cavemen Anthology Contract. (Note: it may be until sometime Saturday 12/12 before this document syncs)

I don’t know that this contract is specifically the same as any that were signed. I just noticed the following things about this particular document.

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  1. It licenses the work as one of six works included in the anthology. I see no provisions for other numbers (e.g., 72). Therefore, I don’t see how Ellora’s Cave is authorized to publish the 72-work omnibus volumes of Ellora’s Cavemen anthologies without an additional or substantially different contract.
  2. I see no provision for reversions.

Obviously, if you have questions about your contract or the remedies that may be available to you, then your lawyer is the appropriate person to answer your questions.

Originally published at deirdre.net. You can comment here or there.

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Some more action on the Ellora’s Cave vs. Dear Author case filed in court over the last couple of weeks:

  1. Motion to add RWA Executive Director’s Statement to Defense’s Summary Judgment Motion
  2. Ann Jacobs as Counterclaimant—additional documents filed by, well, everyone
  3. Motion for Further Discovery filed by Dear Author
  4. Court hearing scheduled for October 8 on discovery dispute (note: there have been requests to reschedule on Oct 22 or 23)
  5. Julie Naughton’s Declaration (will cover in a later post because this is 2800 words and I hadn’t started on it yet…)
  6. Plaintiff’s Opposition to Defense’s Motion for Summary Judgment (will cover in a later post)
  7. In non-legal news, Ellora’s Cave books have disappeared from Amazon Australia and Amazon Netherlands, and many books have disappeared from the Amazon India site
  8. Jaid Black facebook timeline blips in and out of existence again

For those of you hanging out on #notchilled, some of this will be very old to you, but I’ve had the post half-written for a while.

Motion to add RWA Executive Director’s Statement to Defense’s Summary Judgment Motion

This motion was filed on September 15th as document #54. The interesting part for the onlookers isn’t the procedural part in the motion itself, but the newly revealed information in RWA Executive Director Alison Kelley’s declaration:

Based on complaints from authors, we contacted Patty Marks, CEO of Ellora’s Cave, in August 2014 to express concerns that Ellora’s Cave was unilaterally changing the terms of its contracts without authors’ written consent. Ms. Marks responded, “I’ll talk to Raelene and have our publishing department request signed amendments now and from here on out.”

As a reminder of the timeline in this case:

  1. On August 18, 2014, Ellora’s Cave laid off many of its staff. This was reported by Dear Author’s Janet the following day.
  2. On September 14, 2014, Dear Author published The Curious Case of Ellora’s Cave (sometimes abbreviated TCCoEC on Twitter) by Jane Litte.

  3. On September 27, 2014, Ellora’s Cave and Jasmine Jade filed suit against Dear Author and Jane Litte.

In short, it seems…hmm, how does one phrase this?…stretching credulity that Ellora’s Cave did not know there were issues in royalty payments prior to filing the lawsuit.

Getting Behindier

Let’s take a new look at Ann Jacobs’s counterclaim, specifically bottom of p. 4-top of p. 5 (note substitution of her pseudonym for her legal name):

Multiplying the cover price ($5.95) times the contractual royalty rate (37.5%) times
the number of Kindle books sold (257), [Jacobs] was entitled to receive a total
royalty of $573.43 for March 2012 Kindle sales of In His Own Defense.

However, Ellora’s Cave paid [Jacobs] a royalty of only $77.49. The reason for the discrepancy is that in March 2012 Kindle copies of In His Own Defense were sold at a substantial discount from the cover price, and Ellora’s Cave improperly calculated the royalty based on the sale price rather than cover price.

In other words, with the receipt of the check for March 2012, Jacobs claims that she didn’t receive the full royalties she was due.

Now, had that been, say, a car or mortgage payment with certain banks, the monies received would have been put aside into an escrow account until the full payment is received and then the monthly payment’s applied when it’s received in full.

Something like this:

getting-behind

So you see, over time, even with a simple $63 transposition error, someone can seriously fall behind over time, and one month behind slips to two and three as time goes on.

It seems likely, with the $193,000 claimed as due Ann Jacobs, that there have been a number of months with shortfalls that, taken cumulatively, may well mean that as of September 2014, payments had slipped six months or more behind.

By which I mean to say that this statement by Jane Litte in the Curious post would be actually true, not just substantively true, that, as of September 2014:

There is a set of authors who have not received royalty payments in over six months.

Possibly because even checks received in, say, January through early September were paying royalties owing for more than six months, and not received for months January through early September of the current year.

In other words: if, because of a publisher’s underpayment of royalties, an author is only fully paid through (example) March 2013, receiving royalty checks in Jan-Sep 2014 does not mean those checks were for the periods Jan-Sep 2014 even if the accompanying royalty statement claims that is the case.

The check should be applied to the oldest amount outstanding due the author. That’s how a bank would do it, after all.

In other words, I believe Jane Litte’s statement is actually true in a way the defense has not yet shown. It doesn’t even matter if Jane knew about it at the time of writing. Substantial truth is a defense, and that would still be substantially—if not fully—true.

Ann Jacobs as Counterclaimant

  1. Completely unsurprisingly, Ellora’s Cave objected to Ann Jacobs becoming an intervenor.
  2. Completely unsurprisingly, Dear Author and Jane Litte disagreed.
  3. Ann followed up with her own response to Plaintiffs.

Ellora’s Cave’s opposition claims are, essentially:

  1. Motion is Untimely. As Courtney Milan has pointed out, this is the weakest aspect of Ann’s motion.
  2. Ann’s motion doesn’t have sufficient common question of law. In other words, it’s off point.

Nowhere does Ellora’s Cave (or Jasmine Jade for that matter) claim Ann Jacobs’s filing was untrue.

So here’s how I feel about that. I believe the fact of the lawsuit revolves around the “set of authors” phrase I quoted above. That, were it not for that one phrase, the case probably wouldn’t exist.

Digression paragraph, bear with me: Except perhaps for Tina’s desire to see “that the offending site be shut down”, perhaps, and her statement that “one of my cases was in the UK” (leading one to wonder how many there had been, exactly). And yes, I’m 99% sure that’s Tina we’re talking about: See the email address at the top of p.22 of this Brashear v. Ellora’s Cave case and then this page giving the same email address on the same site (not to mention the purpose of the site, one of Tina’s interests). And, if not Tina, it’s someone at EC who was also involved in the Brashear litigation. End digression.

Given that EC isn’t opposing the substance of what Ann is claiming, that makes it look even more likely that Ann’s claims are correct than if EC had filed nothing.

Ultimately, Ann Jacobs’s case is about the heart of the truth of Dear Author’s statements. As I pointed out above, questions about royalties paid to Ann in 2013 (or even earlier) are crucial to understanding whether any checks issued to her in the first 9 months of 2014 were in fact covering payments due in 2014—no matter how much Ellora’s Cave wants to flail madly in their filings and say prior years are not relevant.

As I’ve pointed out in an earlier post, “A set of authors” could be a set of one, in which case Ann’s factual situation could settle the truth of the underlying claim all by her lonesome.

If so, then fighting Ann’s joining the case means committing to massively higher expert and legal expenses to prove that all 900+ EC authors in September 2014 had been paid for not just all months in 2014, but that they were not in arrears to any author causing 2014 payments to be applied to earlier months and even years. Your call, EC.

EC Filing WTFery

Most WTF moment in the EC brief was this little gem at the bottom of p. 1:

Permissive intervention by a nonparty to a pending case is governed by Fed.R.Civ.P. 24(b). A denial of permissive intervention should not be reversed except for clear abuse of discretion by the trial judge. Meyer Goldberg, Inc. v. Fisher Foods, Inc., 823 F.2d 159, 161 (6th Cir.1987)).

I just can’t even with that cite. This might be relevant if Judge Adams had already ruled and the motion were being appealed, but it’s not relevant at this point in time.

The ruling is about May Company’s (this is an old case) attempts to unseal records from a case that was already closed so it could have them for discovery on the same issue. It wasn’t about a party intervening as a claimant. However, it was a 6th Circuit ruling that reversed the district court’s ruling anyway. Like, dude, I don’t know why you picked it, but that case ruling is the exact opposite of the part you cite.

So, Mastrantonio’s chosen case is cited by a Larry Flynt (yes, as in Penthouse) ruling from the 8th circuit. Let’s look at an excerpt of that:

The appellees assert that the district court did not err in denying Flynt’s motion to intervene under Rule 24(b), and seem to suggest that since Flynt admits he could file a separate lawsuit to address the merits of unsealing the judicial records in question, his rights of access are not harmed. We disagree and find Rule 24(b) intervention an appropriate procedural vehicle for parties seeking to intervene for the purpose of obtaining judicial records.

Given the district court’s terse orders denying Flynt’s motions, we are left to some degree to speculate what the district court meant when it said “[a] generalized interest in a subject of litigation does not justify intervention.” To the extent the district court denied Flynt’s motions because it believed Rule 24(b) intervention was the incorrect procedural mechanism, the district court applied the incorrect legal standard in holding that Flynt’s generalized interest in the subjects of the Zink and Ringo cases did not justify intervention under Rule 24(b). Normally, parties seeking permissive intervention pursuant to Rule 24(b) must show: (1) an independent ground for jurisdiction, (2) timeliness2 of the motion, and (3) that the applicant’s claim or defense and the main action have a question of law or fact in common. United States v. Union Elec. Co., 64 F.3d 1152, 1170 n.9 (8th Cir. 1995).

As a background, the cases Flynt tried to intervene on were those of his shooter.

In his motions to unseal, Flynt stated he had an interest in the sealed records as a publisher and as an advocate against the death penalty. Flynt also said he had a heightened interest in these cases because Joseph Franklin, a man who had confessed to shooting Flynt, was an inmate on Missouri’s death row and a plaintiff in both cases. Franklin was executed on November 20, 2013, and on that same day the district court denied Flynt’s motion to intervene in the Zink case as moot.

Yet, in the Flynt case, the appeals court reversed and allowed Flynt to intervene.

Which still isn’t relevant to the Ellora’s Cave v. Dear Author case, because the motion to intervene was only about access to discovery and/or records. It was also granted after the dude had been executed and that was considered sufficiently timely.

Maybe I’m expecting too much. 😉

The Timeliness Dig

Mastrantonio has a snarky little footnote:

The timing of the filing is curious. Intervenor acknowledges that the discovery deadline has passed and apparently seeks to use this intervention as a way to reopen discovery. Motion to Intervene, Doc 40, p. 2.

Which says (emphasis added):

The intervenor additionally notes that while the preliminary discovery deadline has recently passed, it would appear from the defendants’ recent status reports (such as dkt. 38 and dkt. 39) that no representative of the plaintiff has yet been deposed and that relatively minimal paper discovery has been produced by the plaintiff.

That word. Preliminary. It does not mean what you think it means.

Motion for Further Discovery filed by Dear Author

So, there’s a discovery dispute. Are you as unsurprised as I am? It’s over the word—I know, I know, I’d never sell a story with foreshadowing this heavy handed—preliminary.

I agree with Courtney Milan that it doesn’t seem like the whole story is in the filings, so we’ll just have to see what happens with the upcoming hearing.

Ellora’s Cave Books Disappeared from Three Amazon Regional Sites

  1. Go to amazon.com.au.
  2. Search on Ellora’s Cave.
  3. How many search results do you get?

Repeat for amazon.nl and amazon.in. Compare with the same search on amazon.com (or .ca, .co.uk, etc.).

Note that .au, .nl, and .in are the three most recent country sites for Amazon: Australia, Netherlands, and India. (Amazon has separate retail websites for United States, United Kingdom & Ireland, France, Canada, Germany, Italy, Spain, the Netherlands, Australia, Brazil, Japan, China, India, and Mexico.)

What does this mean?

I’m not sure. I held off posting to see if something else would come up.

Knowing that Laurann Dohner had recently had a new Ellora’s Cave release, I checked out her FB page and found this:

ec-books-on-amazon-au

But it’s not just affecting Laurann’s books, but those of all current Ellora’s Cave authors.

Nevertheless, the promise of some canned statement tempted me, so I wrote to Amazon PR:

Dear Amazon PR,

For almost a year, I’ve been reporting on the lawsuit filed by Ellora’s Cave against romance industry blog Dear Author and its founder Jane Litte (pseudonym for Jennifer Garrish-Lampe). http://deirdre.net/tag/ecda/

It came to my attention today that Amazon.com.au is no longer offering Ellora’s Cave titles except for three published very recently: Myra Leigh (Maddening Desire), JL Taft (Burning for the Fireman), and Tina Donahue (Wicked Times Too).

It’s my understanding that Amazon.com.au customers who’ve written in have received a prepared statement about why books from some of their favorite Ellora’s Cave authors aren’t available from your Australian store.

Does Amazon have an official statement on the matter?

Thank you in advance,
Deirdre Saoirse Moen

I received no response, however those three titles disappeared from Amazon AU within two days.

Then I decided to do a customer service chat on Amazon AU (emphasis added on key line):

You are now connected to CS from Amazon.com.au
Me: Can you tell me why Ellora’s Cave (publisher) books aren’t on Amazon.com.au right now? Laurann Doehner just released a new book and none of her books are showing.
CS: Hello, my name is (CS). I’m sorry to hear about this. I’ll be glad to help you.
Me: Thank you.
CS: Please allow me a moment while I check this for you
Thank you for being on hold
I am sorry to inform you that the titles of these books are not available due [to] publisher restrictions.
Me: Thank you for your help, (CS).
CS: I regret to inform you that we’re only the online retailer and the availability for Kindle content mostly influence the publisher decision who are the owner of the Kindle content. I hope you’ll understand our restrictions.
I will immediately forward this to the publisher to let them know you are interested in the availability of their titles.
Me: Thank you.
CS: I would request you to give us sometime while we work with publishers actively on this issue.

On September 8th, Tina Engler emailed the biz loop:

Sent: Tuesday, September 8, 2015 4:58 PM
Subject: [ec_biz] Amazon AU

We are aware of the situation and are handling it. Our rep at Amazon has her team investigating this; we’ll report back to you when we hear from her.

Tina

On September 9th, Raelene sent a longer email to the biz loop:

Sent: Wednesday, September 9, 2015 2:50 PM
Subject: [ec_biz] Update: EC books on Amazon AU

Amazon informed us this afternoon that they have found a glitch in the payment system for publishers who are participating in the new program EC moved to in mid-July. (See ec_biz announcement of June 29, 2015.) They say this affects only the newer Amazon territories — Australia, Netherlands and India; all other territories are fine. Because Amazon’s software isn’t able to correctly generate payment information for this publishing program in those territories, the territories temporarily removed books from sale.

Amazon’s development team is investigating a workaround until they can make the needed software changes. Obviously everyone – Amazon and the publishers in this program and all authors – want to get the books available for sale again as quickly as possible in the affected territories. I feel confident Amazon is working hard on the problem. They will be giving us an update end of day tomorrow. We will let you know when the problem is resolved. In the meantime, you can certainly suggest readers purchase from the EC webstore (it’s then easy for them to convert the file onto their Kindle).

See what I mean about promoting buying from their own web store? When they’ve burned customers before by not restoring their books (like mine) after migrations? Where there’s no external audit information available for authors to discover in the case of hinky royalties? Yeah, no.

As far as Raelene’s statement goes, yes, Netherlands, Australia, and India are the three most recent Amazon stores. The next-most-recent is Mexico. However, I find it difficult to believe that Amazon would put a publisher contract in place if they didn’t have the means to use it with certain stores yet.

I’m not aware of any later statements on this topic by Ellora’s Cave, and it’s been going on for more than three weeks at this point.

Jaid Black’s Facebook Is Back…and then it’s not.

Jaid Black’s facebook page was back for a few days, then blipped back out, quite possibly to screencap posts for plaintiff’s filings.

Originally published at deirdre.net. You can comment here or there.

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Ellora’s Cave author Ann Jacobs has filed an Intervening Counterclaim in the Ellora’s Cave v. Dear Author case. (Here, as with other similar situations, I’ll refer to her by her pseudonym.) From page 1 of the counterclaim:

The future value of the specific performance and declaratory judgment is unknown, but the damages incurred from Ellora’s Cave’s breaches are at least $193,000.

For. One. Author. (Ellora’s Cave had, last I checked, over 900.)

From pp. 4-5:

By way of example, §10 of the Mutual Favor Publishing Agreement provides that “In regard to all of Publisher’s royalty provisions as specified below, Publisher shall pay royalties based on cover price.”

Under § 10.1 of the Mutual Favor Publishing Agreement, the applicable royalty rate for digital formats of A Mutual Favor is 37.5% of cover price.

Under § 10.2 of the Mutual Favor Publishing Agreement, the royalty rate for print books of A Mutual Favor is 7.5% of cover price.

Notwithstanding the language in the contracts, Ellora’s Cave has stated that it believes it is entitled to calculate and pay (and has in fact calculated and paid) royalties to Jacobs—and, upon information and belief, other similarly situated authors—based not on cover price, but on the actual sales price of the works. […]

Ellora’s Cave has made similar underpayments for most or all of Jacobs’s works, and upon information and belief has made similar underpayments for many other authors.

After complaints about the improper royalty payments, Ellora’s Cave attempted to modify its publishing contracts with its authors, including Jacobs, by unilaterally informing the authors that Ellora’s Cave would begin paying an increased royalty rate (45% or 40%) but pay the royalty rate based on the sales price, which was often substantially lower than the cover price. The net result was that even with a supposedly higher royalty rate, the royalty payments were below those provided for in the contracts.

Ellora’s Cave’s attempts to change the royalty payment structure by unilateral notice is not permitted under any of the Publishing Agreements, all of which contain provisions requiring any modifications to be made in a writing signed by both Jacobs and Ellora’s Cave. The attempts at modification are, however, indicative of Ellora’s Cave’s knowledge that its prior royalty payments were not consistent with the Publishing Agreements.

Taking the claims as true, I think essentially this would prove the Dear Author claims about authors owed “several thousands, perhaps approaching six figures”. As I joked once, some people could say Dear Author’s statements were untrue with a straight face if seven figures were owed.

There’s also a Motion to Intervene as Counterclaim Defendant filed by Ms. Jacobs.

In the main action the plaintiffs, including Ellora’s Cave, have alleged that the defendants defamed the plaintiffs by stating that the plaintiffs have failed to timely pay royalties to Ellora’s Cave authors. See Complaint at ¶ 12, dkt. 1-1, PAGEID # 8. The intervenor’s claims therefore have not only common questions of fact and law with the main action, but actually substantially identical questions of fact and law with the main action. To put it more simply, if the intervenor prevails on her intervening counterclaims, the claims in the complaint (or at least a portion of them) fail as a matter of law, because the allegedly defamatory statements will have been shown to be true.

So, there you go.

Updated to Add: Link to Courtney Milan’s Piece

Courtney Milan’s blog post is here. She’s actually been to law school and been a clerk for some Very Important Judges and was a law professor. So.

Filing this claim as a motion to intervene was probably not the way to maximize the chances of success. If I had to guess, and this is purely a guess, I would say that this is an exercise in saber rattling. This is the saber I hear being rattled: Revert my titles, now, or you’ll spend well into the six figure mark defending your existence.

My commentary: I didn’t want to say this until I saw Courtney’s take on it, but I agree with her that this is some badass sabre rattling. I also find it really interesting that nothing was filed far earlier, say in December or January at the very latest.

Why? I think she’s seeing the writing on the wall, and she believes this is the best strategy to get paid, in full or in part, and get her rights reverted. Because if they pay her and revert her work, she doesn’t have a cause of action any more.

It’s a way of jumping the queue in front of other authors, and I think we may see more queue jumping coming up.

Originally published at deirdre.net. You can comment here or there.

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Today, Judge Adams issued a ruling in the Ellora’s Cave v. Dear Author case relating to @pubnt’s letter to the court in February that the judge interpreted as a Motion to Quash (the defense subpoena to Twitter to determine the identity/identities of the @pubnt account).

From the ruling (note: I’ve replaced Jane Litte’s legal name with her Dear Author pseudonym; other square brackets are from the Court):

In their letter – let alone the actual tweets on the account – the @pubnt “owners” confirm that they have knowledge about the underlying allegations and defenses, such as claims for defamation/libel and the defenses of truth, substantial truth, and lack of malice. For example, the “owners” state:

  • “The Defendant in this case is a vicious troll who leads a gang defaming and harassing successful people and anyone who supports them.” Doc. 31 at 1.
  • “If you peruse our Twitter account you will be able to verify every legal argument and statement we have put forward is against the Defendant’s case. You will see clearly that there is nothing we have stated that will support the Defense’s case and everything we have said defeats the Defendant’s case.” Doc. 31 at 2.
  • “This is added proof of Malice [sic] against the Claimant [i.e. Plaintiffs].” Doc. 31 at 2.
  • “We present evidence below that the Defendant, [Jane Litte], is a vicious troll who runs a gang and maliciously attacks, runs smear campaigns against, libels, stalks, and criminally harasses successful businesses and individuals in the publishing industry.” Doc. 31 at 3.
  • “Some years ago [Defendant] [Jane Litte] and [sic] a similar smear campaign against a small publisher, libeling and defaming the publisher, similar to her current smear campaign she has started against [Plaintiff] Ellora’s Cave.” Doc. 31 at 3 (@pubnt then provides a web address purporting to support this allegation).

The judge was unimpressed. From the ruling (bracketed text mine):

Simply reading the [@pubnt] “owners’” letter demonstrates that they have relevant information that is discoverable in this case. Merely because the Defendants may be able to obtain certain information from other sources does not render the subpoena unnecessary. Furthermore, Defendants are entitled to pursue discoverable evidence from the primary source, instead of merely accepting statements by the “owners” that information they have can be procured by other means (especially considering the tenor of their letter shows an almost venomous disregard for Defendants).

Let’s Talk About the Subpoena

I want to reiterate here: a few things about this side issue are important:

  1. @pubnt kept taking plaintiff’s side in tweets.
  2. Despite various claims by @pubnt about EC’s business practices, including tweets about EC’s future legal strategy, Ellora’s Cave does not subpoena Twitter for @pubnt’s identity.
  3. Despite the fact that @pubnt claims to have evidence that would harm Dear Author’s defense, defense does subpoena Twitter for @pubnt’s identity.
  4. Ellora’s Cave neither supported or opposed defense’s effort.

These, taken together, are very curious indeed. The only concept that makes sense to me is that Ellora’s Cave knew perfectly well who @pubnt was and already had them on their persons with discoverable information list. To reiterate, This list consists of five people:

  1. Patty Marks (Ellora’s Cave CEO)
  2. Tina Engler (EC’s Founder)
  3. Courtney Thomas (EC’s CFO)
  4. Jane Litte (defendant)
  5. Raylene Gorlinsky (EC’s publisher). (For those who don’t know, publisher is a job title.)

Defense’s list is longer:

  1. @pubnt
  2. Tina Engler (EC’s Founder)
  3. Patty Marks (EC’s CEO)
  4. Susan Edwards (EC’s COO)
  5. Raylene Gorlinksy (EC’s Publisher)
  6. Whitney Mahlik (EC’s Managing Editor)
  7. Courtney Thomas (EC’s CFO)

So why, if, as @pubnt claimed, the only information they have is to help plaintiff’s case, would the defense subpoena Twitter? Taken at face value, that would only seem to hurt defense’s case, right?

Well, if @pubnt is someone(s) who’s not already on the existing defense list, they also may have unprivileged information that can help make defense’s case—or disprove plaintiff’s.

Meanwhile, time for popcorn!

In Related News

  1. @pubnt’s letter to the court from February.

  2. A PDF of all @pubnt’s tweets.

  3. There won’t be a Romanticon this year, but there will be next year. (See next item for source.)

  4. Amergina reports on the Ellora’s Cave publisher spotlight event at the recent RT Booklovers convention. I’m gobsmacked at not being able to answer royalty rates or manuscript length questions. Those are…kinda basic. I don’t know who was leading the presentation, but I know Axl Goode, one of the EC cover models who’s also an EC author, was at RT.

  5. Speaking of Axl, a few months back I read his first novel, Primal Desire, which is erotic romantic suspense. It suffered from many of the “written by a man” kinds of problems of men’s adventure novels of olde, including having the woman wait in the car (way) while Mr. Alpha Male went in to wail on some Dangerous People. Once, just once, I’d like to see a plotline like that where the evil geniuses go after the woman in the car as the presumably easier target, and have her beat the crap out of them. Mr. Alpha Male returns to the car, vexed he can’t find the people he was expecting to beat up, and Herself is touching up her makeup after the fight, never saying a word about what actually happened.

Originally published at deirdre.net. You can comment here or there.

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First, I’ll quote the long email that Tina Engler sent to an Ellora’s Cave email list, then discuss various points afterward. At the end, there will be a wrap-up section about “loyalty.”

Sent: Tuesday, April 7, 2015 11:46 AM
Subject: [ec_biz] Rumor Mill 2 (Long)

1) Amazon pays its self-published authors every 60 days; they pay us every 90 days. You can decide on Amazon’s motivation for yourselves.

2) Re: the lawsuit – while we cannot comment on specifics we can tell you that we have not asked for any author names. We have asked for specific individuals by name to be identified in discovery, all of who fall into 1 of 2 groups of anonymous commenters: competitors and/or former EC employees let go with cause. While we are disappointed that some of our authors have partaken in online gossip, and equally disappointed that some of our other authors have stayed publicly quiet while privately continuing to play both sides of the fence, we still have not requested author names. I realize it makes for juicier gossip if we were seeking that info, but such is not the case.

3) We did not “dox” anybody and that accusation is getting quite old. Fact: you cannot file a lawsuit against a person that doesn’t exist so of course the defendant’s real name was in the lawsuit. That said, it was the defendant who posted the lawsuit to her own blog, thereby “doxing” herself. We have never, at any point in time, posted the defendant’s real name and home address. I wish the defendant had granted me that same respect instead of posting my name and address on her blog back when my youngest daughter was 12 or 13 years old for anyone with an Internet connection to see.

4) Re: projection – No one should constantly have to defend themselves and their employees against accusations of wrongdoing that only the accusers have partaken in. It is time to make one thing crystal clear: we are not like the accusers. While hateful, gossipy people cannot wrap their heads around the fact that everyone else doesn’t think & behave like them, we trust that the majority of our authors can understand that.

5) Revisiting points 3 & 4: We are not pubnt. We are not STGRB. We did not and would not “dox” the defendant to her employers. It appears that she’s made quite a few enemies & frenemies over the years… A fact everyone recalls with ease when discussing their anger at her “revelation” but which is conveniently overlooked when it comes to us.

The bottom line: This situation is very old. Until we felt pushed into a corner & given no choice but to file a lawsuit just to clear our name I gave the defendant zero thought. Directly after filing the lawsuit, 95% of my thoughts were consumed with her & simply wondering WHY. Anonymous tipsters pretty much answered the question within a few days so within a week of filing she went down to about 50% of my thoughts. Within a month she was back to zero unless I had to think about her for purposes of the lawsuit.

This is a very long winded explanation as to why it induces major eye rolling in me every time I’m accused of being pubnt or an anonymous commenter or (insert ridiculous accusation.) I am happy to let the courts decide this case. I never wanted it tried on social media nor was I the one who took it there. But will I defend myself, my mother, my employees, & the many wonderful authors of EC who are being targeted on social media? Absolutely. I will never relent.

To the overwhelming majority of authors, especially those who have remained loyal to us: I am SO sorry you are being dragged through this. I am SO sorry you fear being publicly targeted if you say anything positive or even neutral about EC. What’s being done to us is being done to you & we get that. The only thing I can ask of you is to continue exercising patience while this plays itself out because dropping the lawsuit is not an option. I get that you just want this to go away, but asking us not to defend ourselves feels, to us, like asking a victim of rape not to testify against his or her rapist because of potential social backlash. Only a couple of you have come to us with this plea, but I felt it should be addressed to all of our authors in case others were thinking it. It’s vital to remember we didn’t start this, that we didn’t go online & trash talk anybody, but that we will use any legal remedy available to us to defend ourselves and end it.

I trust everyone had a wonderful holiday. As always, feel free to contact us with any questions.

Tina

Point the First: Amazon Payment Schedule

Amazon does not pay self-published authors every 60 days. Instead, they pay self-published authors every month, 2 months behind. So, sales in January get a royalty statement at the end of March, followed a few days later by the direct deposit/check. In my own case, I received my last statement on March 21 and the money was paid on March 29th for January sales. The previous month was February 20th and 28th, respectively, for December 2014 sales.

E-publishers, on the other hand, are paid quarterly. The fact that Tina doesn’t know the difference is consistent with Ellora’s Cave’s statements about quarterly payments being atypical and confusing.

Point the Second: Ellora’s Cave “Competitors”

We have asked for specific individuals by name to be identified in discovery, all of who fall into 1 of 2 groups of anonymous commenters: competitors and/or former EC employees let go with cause.

This is disingenuous. Why? Because competitors means the self-published, including previous Ellora’s Cave authors who are now self-publishing.

The purpose of the courts is not to go on information quests about your competitors.

Secondly, if your purpose was in fact to go after anonymous commenters who were former EC employees let go with cause, then the following is also true:

  1. Ellora’s Cave has had a relatively limited list of employees over the years. I suspect it knows all of them. (Including, for example, who commenter “Adam,” purportedly the spouse of a former EC emeployee, is.)
  2. If you wanted to go after them, then they could have been added as defendants in the suit. That is typical practice, but that didn’t happen.

  3. If part of the point of the lawsuit was to go after them, then why wasn’t it mentioned in the complaint? Sure, there was that one line about anonymous commenters in the wrong place (page 21 in the TRO memorandum of law), but there was no evidence attached in the complaint that there were any anonymous commenters.

So the actual documents submitted to the court disagrees with what Tina’s now saying.

There are those who believe that the comments as a whole were the reason that Dear Author and Jane Litte were sued.

Point the Third: “Doxxing”

Look, I’m one of those people who doesn’t much like the term doxxing, and who thinks it’s overused.

That said, a lawsuit really is the ultimate in doxxing, and not just in the revealing the legal name of a pseudonymous person. It doxxes that person to an entirely different community. Forever.

If I felt this were anything other than a SLAPP lawsuit, I might feel differently about it. So: I disagree with Tina on this point. I do believe that Ellora’s Cave doxxed Jane Litte unfairly.

It’s also incorrect that Jane posted it on Dear Author. It was hosted via an embedded iframe on The Passive Voice. I have also hosted all the lawsuit documents on Dropbox, but only because federal court documents can’t be obtained for free by most people.

Point the Fourth: “Projection”

No one should constantly have to defend themselves and their employees against accusations of wrongdoing that only the accusers have partaken in.

Oh. Please.

That’s such bullshit.

Point the Fifth: Disclaimers

We are not pubnt. We are not STGRB. We did not and would not “dox” the defendant to her employers.

  1. I still believe that Tina Engler is intimately involved with pubnt. I don’t believe pubnt is (or was) a sole voice, though. I have a shortlist.
  2. I’ve never claimed that Ellora’s Cave is STGRB (the ironically named Stop the Goodreads Bullies), but it is noteable that, in October, the first Ellora’s Cave tweet in over a month (which has since been deleted) supported STGRB.

  3. As for the harassing letters point, I do not believe Tina, but I am not going to say why I think so.

Point the Sixth: The Bottom Line

What Ellora’s Cave seems to fail to understand was that it was not Jane Litte’s article that turned us against Ellora’s Cave, it was the fact of Ellora’s Cave filing the lawsuit. In other words, Tina has causation exactly backwards.

The bottom line is that this lawsuit is very new. It will probably run 3-5 years, and it’s only been a hair over six months. Tina has previously said that she would like to make case law, and that would lengthen, not shorten, the case.

So it’s not very old, and Tina should be aware of that, having been in a three-year-plus lawsuit before in the Brashear case.

But will I defend myself, my mother, my employees, & the many wonderful authors of EC who are being targeted on social media?

Let’s get an example here so I can understand what you’re saying.

  1. Jenny Trout, writing as Abigail Barnette, is an Ellora’s Cave author.
  2. Jenny Trout has been targeted by STGRB and recently had a launch canceled as a result

So, you’ll be taking Jenny Trout’s side, then. Right?

No?

I thought not.

That’s what I call: a dishonest assertion on Tina’s part.

Point the Seventh: Rape Analogies. No. Just—No.

I get that you just want this to go away, but asking us not to defend ourselves feels, to us, like asking a victim of rape not to testify against his or her rapist because of potential social backlash.

Ellora’s Cave does not get to use the fact of my having been raped to justify their (my belief) SLAPP suit against a columnist.

No.

Hell no.

Fuck no.

You know what? Whatever sympathy/empathy I had for Ellora’s Cave just died in a fire.

Loyalty and Business Relationships

Ellora’s Cave isn’t a rape victim. It’s a brick. The brick does not love you.

I’d like to highlight some tweets from yesterday that I think are oh-so-apropos:

http://twitter.com/O_Waite/status/585530867449233409

http://twitter.com/O_Waite/status/585531202532147202

http://twitter.com/O_Waite/status/585531613062238208

http://twitter.com/O_Waite/status/585531950326251520

http://twitter.com/O_Waite/status/585533488796958720

http://twitter.com/O_Waite/status/585533888858054657

http://twitter.com/O_Waite/status/585534025965645824

http://twitter.com/O_Waite/status/585534261354172419

All of that, plus the following: the author’s responsibility is to their art and their bottom line. The publisher owner’s responsibility is to increase shareholder value. There are, at all times, various conflicts of interest between any author and any publisher.

End of story.

I don’t fault authors for looking out for their own perceived best interests (including, but not limited to: where they should publish next, and what they choose to share about their publication history and interactions with publishers), and neither should Ellora’s Cave.

Originally published at deirdre.net. You can comment here or there.

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I’ve been teasing apart the feelings around Dear Author’s Jane Litte revealing herself to be romance author Jen Frederick, and I’ve been reading a lot of comments around. I’d also like to thank Olivia Waite for her comment on my last post, which was super helpful.

I’m also being distracted while writing this post by one of the entertaining and beautiful black squirrels we have in our yard. I’m still running on less sleep than I need, but sometimes that’s the best time to access feelings.

First: What I See As the Big Ethical Question

There are many, but this one’s the biggie, I think:

How much of what was posted in the Curious Cave article was told to Jane Litte (voluntary disclosure) vs. Jen Frederick (involuntary disclosure)?Read the rest of this entry  )

Originally published at deirdre.net. You can comment here or there.

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Anonymous Speech

I’ve thought a lot about anonymous and pseudonymous speech over the years, and I have to admit that the outrage to Jane Litte’s outing herself as Jen Frederick has me scratching my head.

I’ve got a long history with pseudonymity, and I used a pseudonym long before I became a writer. Back in the 70s and early 80s, I used the pseudonym Harfesta online, partly because someone was already using Deirdre as their pseudonym (which frankly cheesed me because it’s my given name).

I’ve used pseudonyms in various places where it was the expectation, and I’ve used pseudonyms in publishing since not long after my start (but long before Google) simply because it was a contract requirement.

In 94-95 on alt.religion.scientology, I used an open pseudonym (Deeny, which was related to my AOL account name) as well as my real first name. I also used anonymized speech through the late anon.penet.fi (a two-way anon remailer) as well as outright anon speech, back in the days when you could push email through an anon gateway and have a reasonable expectation it’d be received on the other end.

I haven’t used truly anon speech since then.

Anonymous Speech: Peer vs. Non-Peer Relationships

But in most circles where there are pseudonymous or anonymous speakers, those speakers are generally peers, e.g., people on a web forum.

What’s fascinating about the romance community is that there are a number of people known full-time by pseudonyms, and people may have multiple pseudonyms operating in different segments of the romance community at the same time. Some of these are “open” pseudonyms, like Jennifer L. Armentrout’s J. Lynn (or, in science fiction, Harry Turtledove’s H.N. Turtletaub for his non-SF historicals). The open pseudonyms are typically needed because of bookstore computer systems—not wanting to cross the marketing streams, especially where sales are expected to differ significantly. That way, one bad book won’t tank both of your careers.

A number of people are known by closed pseudonyms too, though, and some are probably known by both open and closed at the same time. (One could argue, given that Jane Litte’s legal name was used in an article years back, this is true for her.)

But relationships with editors, well, we expect them to be known by their “real” names. So I’ve wondered if part of the backlash about Jane’s/Jen’s revelation is delayed backlash about Jane Litte having been a pseudonym in the first place.

I’m coming from the sf/f world, where a higher percentage of people seem to use their real names (though that may just be the apparency), and I’m just shaking my head at the irony of some of the comments over on The Passive Voice article linked in my last blog post on this topic: using a pseudonym to complain about pseudonymity per se would be funny if this weren’t such a serious topic.

To be clear, I’m not ignoring the ethical issues relating to disclosure or transparency. They are there, and some of them don’t make me happy.

Personally, I’m wondering why there’s a bigger reaction to there being a reviewer in author spaces than an industry journalist in author spaces. That seems the potentially larger conflict of interest.

Getting Back to Ellora’s Cave v. Dear Author for a Moment

I wish I could find the comment I am pretty sure I wrote (perhaps only in a dream; I’ve had a really tough time since the Germanwings airplane crash), responding to someone who’d contributed to DA’s legal fundraising. Essentially, some people have called into question that fundraising in light of being a successful romance author and having recently sold film rights.

To which I say the following:

  1. She said she had $20,000 to contribute toward her defense. That may well have been entirely from the book sales and film rights for all you and I know.
  2. I’ve sold film rights (to a proposed Lifetime movie about one aspect of my own life). Let’s put it this way: options are cheap. The real money is when the film is produced, and I don’t believe that’s happened yet.
  3. Lawyers don’t necessarily make a lot of money, especially not lawyers for the state. I know two people who’ve passed the bar in recent years who are basically starving. It’s not a golden ticket.

Some Other Links

Originally published at deirdre.net. You can comment here or there.

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Dear Author • Jane Litte • Jen Frederick

Yesterday, Jane Litte revealed on Dear Author that she was New Adult romance author Jen Frederick. The reaction has not been universal love, however.

The post comes on the heels of being deposed in the Ellora’s Cave lawsuit, with the implication that she’s letting the word out because it came up in the deposition, and controlling how the word gets out. (I have no problem with controlling how the word gets out.)

There was some backlash, perhaps best stated in this post (and its comments) on The Passive Voice:

Now that I know better, I make sure that, if I vent at all about anything industry or book related, I vent to trusted friends and colleagues and in loops with other authors. In those private loops (and yes, I’m aware nothing online is ever truly private) likeminded authors speak more freely. Because you have to understand, we don’t have an after work softball team, or a water cooler, or a birthday cake for Sally on Tuesday where we get to bitch about old Mr. Jennings and how he’s really busting our hump at work that day.

We just have each other and those loops. Most of us never see another author face to face more than once or twice in a given year, if that.

In those loops, we talk industry and strategy and marketing and pricing and trends and hard sales numbers. We talk about the writing process and how hard it can be sometimes, and acknowledge that the muse doesn’t necessarily pepper our dreams with glittery ideas for bestsellers and that it’s a freaking GRIND sometimes, or how we just HATE our current manuscript and are terrified our readers will hate it too, and what a struggle it’s been, and yes, some authors talk reviews. It’s the place that we get to speak freely and treat our business like exactly that. A for profit business. A place where we don’t have to wear our public hat that, by necessity, requires us to stifle ourselves to some degree or risk ostracizing our readership. A place where we take our bra off and stretch for a minute with other braless writer-types. Not that I’m pretending to be someone else on open social media, but there are definitely things I say to authors in “private” that would pull back the curtain, so to speak, in a way that would make me uncomfortable in public, not unlike a school teacher talking politics on Facebook or something.

Imagine my surprise, then, to realize that Jane is on more than one of these loops with me as Jen Frederick. I find myself…not okay with that.

As an author who’s been on some of those “among author” conversations, and as an author who’s also had a different role (convention runner) in the greater fandom, here’s what concerns me:

How much of what was posted on The Curious Case post was told in Jane Litte’s hearing vs. Jen Frederick’s?

As an author talking privately to other authors, I’ve heard all kinds of horror stories, like the agent who spikes a book, the solicited manuscript that winds up sitting in the editorial office for years, the (now former) editor dissing an author behind his back.

As a convention runner, I hear different things, like who has a restraining order against whom, who will (or will not) speak with whom, and who will or will not get in an elevator with whom (for real).

Running this series of posts about the EC v. DA lawsuit, I’ve heard enough privately that I believe that Jane Litte’s claims in her Curious post were substantially true.

But…now that I know the two people are the same, I have to admit that a lot of what I read on the Curious Case post sounds like the kind of thing authors would say privately to other authors.

Not that this makes the underlying claims seem less legitimate; quite the contrary. But I wonder how much of the information was intended to be public, and how much of it was things the authors would rather not have to back up in public in the resulting court case.

Does this Change How I Feel About the Dear Author Case?

In short, no. The case always seemed like it was intended to bully those who spoke out—whether intentionally or not—and I’m just as opposed to that as I always have been.

Also, I’ve been around the lawsuit-watching rodeo myself, and I’m aware that generally neither party looks very good when all is said and done. I had no expectations this case would be different.

One commenter on the TPV post said she’d have felt differently about donating to the legal defense fund if she’d known Jane had a book deal and a movie deal pending. I can speak to this as someone who’s had a movie deal before (that didn’t turn into an actual movie):

  1. Jane did say she had twenty grand to contribute to her defense. That’s possibly where it came from.
  2. The movie deal in question was probably an option, which pay very little money until the movie is actually ready to produce. Far less than twenty grand. I wouldn’t be shocked if we’re talking on the order of $1,000-5,000.
  3. Book deals aren’t a bunch of money all at once, particularly not for a relatively new author like Jen Frederick, even with a better-known co-author.

I think the free speech issues are larger than how I feel about Jane Litte/Jen Frederick. Or Ellora’s Cave, for that matter.

On the Other Hand

Because Jane Litte has recommended some NA books I’ve loved (e.g., Sarina Bowen’s The Year We Fell Down The Year We Fell Down (The Ivy Years Book 1) New Price: Old Price: You Save: ), I figured I’d probably like her books. So I picked up the first one (which is free, btw), and I’ll read it when I get around to that part of my TBR pile. However, I’ll not link to it here.

Originally published at deirdre.net. You can comment here or there.

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