deirdre: (Default)

Ellora's Cave Blog Post Header

There are a few things going on in the Ellora’s Cave world of late, so this is a catchup post. (March 16 Edit: there are some corrections, which I’ve detailed in an update at the bottom.)

Ellora’s Cave Titles Per Month Decline

I’ve previously shown a chart about the long decline in Ellora’s Cave’s titles published per month.

Here’s an update on that chart covering the last few months including January and February, probably the biggest title push months for romance publishers. January gets a big bump because many people get e-readers (or new e-readers) for Christmas, plus publishers want fresh stock for Valentine’s Day.

EC-releases-by-month-2

Year over year, you can see the decline since the events of August and September 2014 (with the layoffs and defamation lawsuit, respectively).

That chart is pretty devastating, but not as much so as looking at a chart of the quarterly releases since the beginning of 2013:

Ellora's Cave Quarterly Releases

Ellora’s Cave Author Numbers Decline

In addition to publishing fewer titles over time, Ellora’s Cave has also had declining numbers of authors, as this next chart shows.

First, before I present it, there are some caveats here:

  1. The information is taken from screen scrapes of Ellora’s Cave’s website over time, both by myself and by archive.org, so it’s limited to the accuracy of the underlying page. In at least one case, I know of an author signed to EC who never had a book published by them, but the author’s name appears on their screen scrapes. I have no idea how many authors this is true for.

    In other cases, the same author was on the Ellora’s Cave pages more than once. Right now, EC’s author page lists both Allie Standier and Allie Standifer even though her name on the former’s book cover is spelled like the latter. It’s not like editing is supposed to be a core competency of a publisher or something.

  2. Authors appear on these pages before their first EC books are published (because preorders), so this isn’t a true correlation with the books published charts above.

  3. The time intervals aren’t as linear as neat columns make them appear to be, and this causes some horizontal distortion.

Ellora's Cave Author Counts

When I first showed an earlier version of that chart, what people wanted to know was: how many new authors was Ellora’s Cave signing?

That’s a little bit harder question to answer, so I took my handy screen scrapes, cobbled together a simple Ruby on Rails application and imported the data. This involved some cleanup, as author name variants and URLs had changed over time.

Then I tried to normalize the data into quarterly time periods (save for the last, which is two months and a week), assuming people joined or left linearly along the time span between scrapes. Unsurprisingly, there’s still a huge inflection point in the third quarter of 2014.

Ellora's Cave: Authors Gained vs. Lost

Since the end of the third quarter 2014, existing authors have been leaving Ellora’s Cave at five times the rate new authors have been joining (210 vs. 41 authors, respectively).

How Many Books Have They Lost?

Ellora’s Cave has lost a ton of authors, and many more have had rights revert on some books, but not all books. The question, though, is: how many? In other words, how big is their book catalog vs. how big was it before?

That’s a question that eluded me on how to answer for some time.

It turns out that All Romance E-Books allows one to search by publisher, which is pretty genius.

Ellora's Cave Catalog Size on All Romance E-Books.

Further, archive.org has saved some of those searches. So, while I have four points of data, I can make a reasonable estimate of a fifth by adding the books published between the end of the second quarter and the end of the third quarter 2014.

Ellora's Cave Catalog Size

Between the end of second quarter 2014 and the end of the third quarter 2015 (so 15 months), Ellora’s Cave lost a net 1,037 books. In the same period, they published 345 new books, so the total books reverted (or canceled) was 1,382 books, or 92/month. (Assuming information provided to All Romance E-Books was accurate, of course.)

In the five months since, Ellora’s Cave has published 41 new books but is no longer publishing 574 books, so they’ve reverted (or canceled) 615 books, so just over 120 per month.

Regardless of how you slice it, it’s not a happy picture of what’s going on at Ellora’s Cave, and my sympathies for all the writers who still have books there and would rather not.

Robin L. Rotham’s Post

Robin L. Rotham blogged about her experience with Ellora’s Cave. She was one of the early writers to provide a declaration in support of Dear Author’s side of the Ellora’s Cave lawsuit.

What is new in this post is her revelation about how Ellora’s Cave’s alleged unilateral change of contract affected Robin personally:

3. EC made a deliberate unilateral change to the payment terms of my books (and those of many other authors) contracted before the spring of 2008, and as a result, they’ve underpaid my royalties by more than $18,000 since late 2011. Because they’d suddenly made their royalty statements long and difficult to analyze, with many and varied amounts supposedly received from Amazon for each book, I didn’t detect the underpayment until late 2014, when I audited all of my royalty statements. I sent EC a spreadsheet detailing the underpayments, demanded immediate payment and offered to accept the rights to my books in lieu of payment.

Ellora’s Cave Performs Extreme Manscaping on EC Romanticon Site

I note a distinct lack of male cover models compared to an archived version of the site. Instead, there’s a lot of flames and incensed rhetoric, but without the lovely lingering scent of church incense.

So I guess Romanticon, formerly an annual convention, is officially dead then. Not a surprise, just an…what’s the word I’m looking for?…unusual way to announce its demise.

Tina Engler Moved Back to Ohio

Tina Engler, Ellora’s Cave founder and majority owner, announced on Facebook that she’s moved back to Ohio. I don’t think this will come as a surprise.


Corrections

March 16th Update….

There are a few significant corrections that have affected the charts I’ve provided above. In the interest of transparency, I’ve linked the original versions below.

Releases by Month

This and the next section are for corrections made on March 16th, 2016.

Corrected graph is here. Link to uncorrected version.

  1. January 2013 inadvertently counted five February 2013 releases (that were also counted in February, yay weeks split between two months). This changes the scale of both monthly and quarterly charts.
  2. August 2015 inadvertently omitted one release.
  3. December 2015 missed six releases late in the month due to a formula error.
  4. February 2016 incorrectly included two re-releases. My intention was to include only first-time releases as I believe that shows a truer picture of publisher state.

Releases by Quarter

Corrected graph is here. Link to uncorrected version.

Corrections are the same as noted above.

An Early Look at Earlier Years

Okay, we’re done with corrections. New Topic.

Here’s an early look at some data I’ve imported from FictionDB’s Publisher Series Lists. I haven’t imported anthologies yet, though I have imported smaller multi-author titles.

First, it appears that their information for 2012 is really incomplete (and almost non-existent for later years), so don’t make any assumptions about 2012 based on this. Also, it appears their information includes mostly in-print books including both print and e-book versions. I de-duped any duplicate entries, keeping only the earlier entry.

That said, given that this dates well into the Kindle era, it’s quite possible that a significant fraction of these titles are re-releases, I’d just have no easy way to know that.

Lopping off the years 2001-2006 (as those also seem to be incomplete), here are the numbers for 2007-2012 imported from FictionDB.

2013 and after are from direct import.

Ellora's Cave Annual Releases per FictionDB Data

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

deirdre: (Default)

Ellora's Cave Blog Post Header

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.

deirdre: (Default)

Ellora's Cave Blog Post Header

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.

Screen Shot 2015-12-10 at 5.17.01 PM

  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.

deirdre: (Default)

ellora's cave blog header

Today there’s big news in this year-plus long defamation case: plaintiffs Ellora’s Cave and Defendants Dear Author and Jane Litte have settled.

Ellora's Cave Case Settles

In an email to EC’s biz loop, Ellora’s Cave CEO Patty Marks said:

From: patty@ellorascave.com [ec_biz]
Date: Thu, Oct 22, 2015 at 9:50 AM
Subject: [ec_biz] Settlement with Dear Author

We are pleased to announce that we have reached a settlement with Dear Author. The terms are confidential, so we will not be discussing that. We are very happy though to now put all of our time and efforts into Ellora’s Cave, the authors and staff without further distraction.

Thank you for your patience and support.

Patty Marks

Defense’s Parting Gift to the Case

Those of you following #notchilled recently will recall discussion of a footnote in case document 71-main (p. 11):

Further,Ellora’s may be planning for bankruptcy even at this time–but have refrained from doing so in the hopes that this SLAPP suit will bear fruit. In fact, Ellora’s counsel has reported to the undersigned on numerous occasions that Ellora’s has failed to pay his bills.

This was a footnote that Randazza had apparently intended to delete, and it led to plaintiffs filing a motion yesterday to strike the footnote, pointing out that this case had received a fair amount of discussion on Twitter’s #notchilled hashtag.

Which led to defense’s response document.:

The real value of the evidence Plaintiffs offer in support of their Motion is that it shows that there is widespread public interest in Ellora’s Cave and thus this controversy, belying any claim that the Plaintiffs are not a public figure as they disingenuously claim.

Boom.

The Identity of @pubnt

In doc 73, plaintiffs also accused defense of waging a social media war:

And while the merits of this case are before this Court to decide, Defendants have resorted to internet and social media outlets to gather support from followers for their position (and to solicit online donors to pay their legal expenses) in what is basically a public relations war against the Plaintiffs’ case.

Let me be clear: Those of us posting on #notchilled are a diverse group who (mostly, since at least two purported Ellora’s Cave employees have posted to #notchilled) agree on one thing: the case against Dear Author and Jane Litte was filed to quell free speech.

In short, we agreed with this Courtney Milan post (excerpt):

But in this country, we want to make sure that people have the right and ability to talk about matters of public concern, to express their opinion on them, and to speak freely without worry that their speech will be chilled. So if you inject yourself into an issue of public concern, you may be a limited purpose public figure–that is, someone for whom the standards differ.

[…]

It seems to me that the business of Ellora’s Cave–a multi-million dollar business, one where the owner has sought and obtained media attention from national news media, a business that deals with hundreds if not thousands of authors, editors, and cover artists, and who has thousands if not hundreds of thousands of readers who take an interest in it–is a matter of public concern. It seems to me that Ellora’s Cave and its owner, Jaid Black, by seeking out that media attention, by broadcasting announcements to its authors–announcements that were reprinted and referenced in publishing news ranging from Publishers Weekly to The Passive Voice–is a limited purpose public figure.

And the standard for defamation actions for limited purpose public figures is substantially different than for private citizens. The standard is that the speaker must be acting with actual malice: that is, they must know (or be reckless about knowing) that the statements they are speaking are false. What that means is that if I say something and I have a good-faith belief that what I am saying is true–even if it later turns out to be false–I am not going to be held liable for defamation.

I point this out because I am extremely, extremely pissed off about this lawsuit. I believe that this lawsuit was filed for the purpose of chilling speech–and for the purpose of chilling true speech about a matter of imminent public concern. And I think that despite the outpourings of support, it’s working. This lawsuit is about teaching authors to sit down and shut up, even if their livelihood is at stake.

Which is a pretty good statement of the unifying principles of the #notchilled regulars. Some are EC authors. Some are former EC authors. Some are readers, but not authors. Some (like Courtney and myself) are writers, but not for Ellora’s Cave.

But we weren’t posting specifically because of who the defendant was, but what the issue was.

Defense’s response in doc 74 (p. 3):

Defendants further note that Plaintiffs offer no evidence that Defendants are waging any sort of a “public relations war against Plaintiffs’ case.” Indeed, there is no evidence to be found. The purpose of this accusation is clear – to try and negatively color the Defense. However, should the Plaintiffs wish for Defendants to address this issue in earnest, the Defendants have preserved publications and statements by Ellora’s Cave’s founder, Tina Engler, about this case, as well as her “sock puppet” twitter account, which would scorch them with hypocrisy—should the court be interested.

The “sock puppet” referred to @pubnt (and possibly others), whose identity will likely never be known as a matter of law, but here’s the complete archive of 2,620 tweets.

What’s Up Next?

There’s still the matter of several hundred Ellora’s Cave authors, quite a few of whom have publicly stated that, as of this writing, they’ve not been paid royalties for periods later than February 2015. I do not know of anyone reporting having received payments for a later period, and February was eight months ago.

Here are a few sources:

http://twitter.com/KellyJamieson/status/655140492712083456

http://twitter.com/Lori_Ella/status/653291224296722437

http://twitter.com/trista_michaels/status/654783745560473600

Given that Ellora’s Cave still has (as of a few days ago) more than 800 authors, that’s a seriously large quantity of royalty checks to be behind.

Let’s not forget the declaration of Romance Writers of America executive director Allison Kelley:

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.”

In September 2015, I contacted Patty Marks regarding complaints about the company’s failure to issue royalty statements and checks to authors. Ms. Marks recently admitted to me that Ellora’s Cave is not up-to-date with paying its royalties and has not paid its authors in a timely manner.

Failure to pay authors and comply with the terms of contracts are violations of the Romance Writers of America’s code of ethics for industry professionals.

As a result of Ellora’s Cave’s violations of the code of Ethics, Ellora’s Cave has been suspended from certain privileges with the Romance Writers of America. This means that Ellora’s Cave is prohibited from contacting members of chapters regarding new submissions and may not participate in any Romance Writers of America chapter event until it has paid its authors all amounts due.

I don’t know if that’ll ever happen, but I hope for authors’ sakes that it will.

Until then, I leave you with Lieutenant Commander Ivanova. Not quite as satisfying as having all the answers and full restitution for all authors, but it’s what I have to offer.

Addenda

Tymber Dalton’s post Ellora’s Cave vs Dear Author: Not with a bang, but a whimper. Features this nugget comment by author Ann Jacobs, who attempted to intervene in the Dear Author case:

I believe there’s a good chance there will be a class action filing. My attorney has other authors who’ve expressed interest, and it will be a topic of conversation next week. Meanwhile, I know no more than anyone else, except that my motion to intervene in the DA defense is moot, since the suit has been settled.

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

deirdre: (Default)

ellora's cave blog header

Authors Who Reverted Between Sep 2014-Sep 2015

Based on screen scrapes taken of Ellora’s Cave author page on September 24, 2014 and September 29th, 2015. So, it’s as accurate as that data is.

Boldfaced means the author has been an author of either a NY Times or USA Today bestseller.

Note that some unknown percentage of these had titles that were below the threshold for reversion, and the remainder were likely rights that were bought back.

A. Q. Fredrichs
Adele Dubois
Ainsley Abbott
Alicia Maddox
Allyson James
Alvania Scarborough
Angela Knight
Ann Bruce
Annabeth Albert
Anne M. Calhoun
Annie Windsor
Ashleigh Raine
Ashlynn Pearce
Aurora Rose Lynn
Ava Bradley
Avery Aster
Belle Scarlett
Camryn Rhys
Cat Grant
Cat Marsters
Cathryn Fox
Charlene Leatherman
Cherif Fortin
Chris Power
Claire Thompson
Courtney Sheets
Crystal Kauffman
Cynnamon Foster
Dawn Halliday
Delphine Dryden
Denyse Bridger
Dominique Adair
Doreen Desalvo
Eden Avery
Eileen Ann Brennan
Eilis Flynn
Elise Hepner
Emily Ryan-Davis
Emjai Colbert
Emma Petersen
Erin Richards
Eryn Blackwell
Faye Adamos
Georgie Lee
Grace Samuels
Graylin Fox
Heather Elizabeth King
Heather Hiestand
Helen Hardt
Hetty St. James
J.C. Wilder
Jambrea Jo Jones
Jane Davitt
Janie D’Avril
Janina Henderson
Jaycee Clark
Jayne Rylon
Jennifer Colgan
Jennifer North
Jessica Lee
Jillelaine Hughes
J.L. Wilson
Julia Templeton
K.D. King
K.Z. Snow
Kaily Hart
Karen McCullough
Kate Pearce
Kate St. James
Kathryn Lively
Katie O’Sullivan
Kayelle Allen
Keira Andrews
Kelly Ferjutz
Kelly Fitzpatrick
Kelly Maher
Kelsy George
Kendall Grace
Kimberly Killion
Kirstie Abbot
Kylie Scott
L.H. Merci
L.J. Garland
L. Rosario
Lacey Alexander
Lauren Dane
Laurie Breton
Leannan Mac Llyr
Leigh Court
Leta Blake
Lila Dupres
Lilian Feisty
Lolita Lopez (as Roxie Rivera)
Lucy Muir
Lynn Sanders
Mandy M. Roth
Marcia James
Marie Bellevaux
Megan Kerans
Melissa Lopez
Melynda Price
Michelle Pillow
Minx Malone
Nancy Corrigan
Nicole North
Olivia Brynn
Paige Tyler
Patrice Michelle
Patricia Mason
Piper Leigh
Raine Latimer
Rebecca T. Michaels
Renee Luke
Rhian Cahill
Richard Jeanty
Rilee St. Chris
Riley Murphy
Roxana Blaze
Ruby Duvall
S.W. Vaughn
Sally Apple
Sally Painter
Sam Cheever
Sami Lee
Sara Dennis
Savannah Stuart
Sherry Morris
Shoshanna Evers
Stella Price
Stephanie Burke
Sue Swift
Susie Charles
Sylvia Day
T.J. Michaels
Tamara Gill
Teal Ceagh
Terri Beckett
Tracy Cooper Posey
Trixie Stilletto
Vicky Burkholder
Viki Lyn
Zannie Adams

Ellora’s Cave’s Unreverted Bestselling Authors

With the notable exception of Laurann Dohner, the New York Times and USA Today bestsellers I could find from these authors were all published by other houses. Because Ellora’s Cave is a digital first publisher, the “Most Recent EC Title” column means: the most recent unreverted Ellora’s Cave ebook release date.

Also, even though an author still has titles at Ellora’s Cave doesn’t mean some of their titles haven’t reverted.

Name (made list as) Most Recent EC Title
Abigaile Barnette (as Jennifer Armintrout) Jan 2013
Amanda Ashley Dec 2014
Cheyenne McCray Jul 2007
Dakota Cassidy Aug 2011
Delilah Devlin Sep 2011
Jaci Burton May 2009
Jaid Black Oct 2015
Jan Springer Feb 2014
Joanna Wylde Jan 2013
Joey W. Hill Aug 2014
Jory Strong Dec 2013
Koko Brown Feb 2013
Laurann Dohner Oct 2015
Lora Leigh May 2014
Madeline Baker Aug 2014
Mari Carr Nov 2012
Marie Harte Jul 2011
Roberta Gellis June 2012
Sabrina York Jul 2014
Shiloh Walker (as J.C. Daniels) Apr 2014
Tawny Taylor Apr 2011

Update March 19, 2016: More Reversions

  1. Amanda Ashley’s titles have completely reverted.
  2. Joey W. Hill is down to a couple of discount print titles; all her e-titles have reverted.
  3. Laurann Dohner later announced that she would be self-publishing future titles.
  4. Lora Leigh has had all books reverted except for stories she has in anthologies.
  5. Madeline Baker is down to a few discount print titles; all her e-titles have reverted.
  6. Shiloh Walker wrote a blog post. Apart from one discount print title and several cavemen anthologies, her titles have reverted to her.

Six major changes out of their 21 remaining NYT/USAT bestselling authors in five months.

(end update)

Bestselling Authors Who Reverted Their Ellora’s Cave Titles Prior to Sep 2014

There may be a much longer list here, but I don’t know all the early Ellora’s Cave authors.

Rhyannon Byrd
Sarah McCarty

Author Counts Over Time

I’ve scraped the Ellora’s Cave site a few times, and have used all of archive.org’s available scrapes as well. I have a reason for posting this, but after the graph, I’ll post a timeline, then wrap it up so you can see why I think this is significant.

elloras-cave-author-counts

Here are some dates to keep in mind when looking at this chart:

  1. Ellora’s Cave layoffs announced August 18, 2014 (report on AW), published in Dear Author the following day and Publishers Weekly a week later.
  2. The Curious Case of Ellora’s Cave, published Sep 14, 2014.
  3. Lynne Connolly also spoke up on Sep 14:

    No, I can’t have my rights back on those two. If I don’t cooperate with the editing, Ellora’s Cave will exercise its contractual right to edit and publish the books anyway. If those books do come out, I will make a statement to say I had nothing to do with the editing and the books are released without my cooperation. After that, it’s up to the reader to decide.

    By “editing,” they mean “light editing.” The editors are not even allowed to alter spelling mistakes, because that would be changing the “author’s voice.”

  4. Cat Grant says Ellora’s Cave would allow her to buy out her contract on Sep 20, 2014.
  5. The following day, Victoria Strauss, maintainer of Preditors and Editors posted:

    Rights buybacks are disgraceful. Failing or not, a publisher should either revert rights or not revert them—but it shouldn’t hold authors’ books for ransom, even if the motive isn’t to make a quick buck before the ship goes down.

  6. Lawsuit against Dear Author and Jane Litte over the Curious post was filed September 26, 2014.
  7. The following day, Cate Cameron asks for a guide to requesting rights reversion. The day after that, I linked to one I’d found.
  8. News of the lawsuit hit Publishers Weekly on September 29th.
  9. On October 1, Victoria Strauss posted a reversion guide on Writer Beware and posted a link to that on the Absolute Write EC thread.

Ellora’s Cave’s Claims re: Reversions

From p. 18 of this EC filing:

In the first eight and a half (8 1/2) months of 2014, prior to Lampe’s bankruptcy scare, Ellora’s Cave had a total of 154 books go out of print for various reasons—mostly sales below threshold for rights reversions. In the twelve days between Lampe’s defamatory blog and the filing of this action, Ellora’s Cave had requests for reversions of 404 titles, an astronomical increase. Since Lampe’s defamatory blog, Ellora’s Cave has reverted over 1250 more titles and still has requests that it is working on. In the one year since the defamatory post, Plaintiff has had almost double the number of rights reversions than it has had in its entire 14-year history.

So here’s the thing. The standard reversion language is given by example here on p.44, and you’ll note it takes (up to) six months for the process to complete.

In other words, if people had asked for reversions solely and only because of the Dear Author article, then those reversions would have occurred between September 14th, 2014 and March 26th, 2015.

If you look at the total number of authors EC had as of March 21st (5 days before the end of that window), they had the exact same number of authors (though not necessarily the exact same authors) as they’d had after Jane Litte’s Curious article.

In other words, the overwhelming majority of authors leaving Ellora’s Cave entirely appear to have done so so after the effects of Ellora’s Cave filing a lawsuit, not after Jane Litte’s article published by Dear Author and before the lawsuit.

Also (note that I’m talking about net additions here):

  • In the 14-1/2 months leading up to July 28, 2014, Ellora’s Cave added exactly 100 authors…an average of 6.8 per month (1.6 per week).
  • In the two months between July 28, 2014 and September 24, 2014, EC added two new authors…an average of 1 per month.

  • In the six months between September 24, 2014 and March 21, 2014, EC added zero new authors…an average of 0 per month.

  • In the following six months, EC had a net loss of 125 authors (142 left, partially offset by 17 new authors). That’s an average of 21 leaving per month and 3 added per month.

  • In the last three weeks, EC’s added five new authors.

And Now I Quote from Patty Marks

From her August 18th letter announcing the layoffs (emphasis added):

We have already cut staff, special EC projects and other expenses, but the drastic drop in sales has resulted in large net short-term variable production losses and slow and often negative return on investment for EC on almost every new book we publish, with the exception of a handful of the highest sellers.

I believe this translates as: “We lost a lot of money by adding 100 more authors so quickly, especially once sales also dropped.”

Comments Welcome

If I’ve missed any author links or have any incorrect links, please let me know.

I do have the data to do more in-depth analyses of the authors who left over time, but the old site used Lastname Firstname and the new site uses Firstname Lastname, and I have zero spoons for that. If anyone would like the raw data, please let me know.

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

deirdre: (Default)

ellora's cave blog header

Let’s look at the last few years of New York Times Bestsellers for which Ellora’s Cave is the publisher. So near as I can tell, the only author that’s hit the list with a book published by EC since February 2011 is Laurann Dohner.

NYT List Date Book Title E-Book List Rank
1/15/12 Brawn 35
3/25/12 Wrath 7
4/29/12 Tiger 9
5/19/12 Moon 5
9/16/12 Obsidian 8
11/18/12 Shadow 9
12/20/13 True 10
10/12/14 Darkness 8
11/16/14 Smiley 10
9/27/15 Numbers 8

Note: she’s also ranked on the combined print + e-book list multiple times, but the matching print book has not been out at any time she’s made the list, so I haven’t included those numbers. With only the e-books available, the combined ranking is more of an indicator of how well print vs. e-books did that week than about Ms. Dohner’s rankings per se.

“Yeah, well? What’s your point?” I hear you say.

I’m glad you asked.

In short, looking at Ms. Dohner’s NY Times Bestseller list positions, it doesn’t appear that the Dear Author article did any damage to her ability to make the list or her position on the list.

When I thought to look this morning and see how Laurann’s newest book was doing, I’m reminded of something Tor editor Patrick Nielsen Hayden said to me at Clarion.

To paraphrase: what you see at writing conferences and workshops and science fiction conventions is only a small part of your readership, and don’t overinterpret what’s going on in the small groups because they’re rarely reflective of one’s readership as a whole.

Let’s visualize the ranking in a scatter plot, which will make my point clearer. Note that lower numbers are better.

Ellora's Cave NY Times Bestseller Rankings 2011-Oct 2015

In a nutshell, compared to the e-book market as a whole, Ms. Dohner’s e-books are not faring worse after the EC layoffs and Dear Author’s Curious article than they were before.

For the last table, I’m not a statistician. That disclosure out of the way…here’s what I know.

Before Layoffs/DA Article After Layoffs/DA Article Before & After Combined
  E-Book   E-Book   E-Book
Mean 11.9 Mean 8.7 Mean 10.9
Median 9 Median 8 Median 8.5

To translate that into English: on average, Laurann Dohner’s e-books rank 3.2 places higher (11.9 before vs. 8.7 after) on the New York Times Bestseller list after the layoffs and Dear Author article than before. The median of is one place higher (9 before vs. 8 after).

None of which means sales are necessarily higher, just that they’re strong relative to the other contenders in the market.

Ellora’s Cave’s Claims About Reversions

In EC’s filing objecting to Defense’s Motion for Summary Judgment, Ellora’s Cave had the following to say:

In the first eight and a half (8 1/2) months of 2014, prior to Lampe’s bankruptcy scare, Ellora’s Cave had a total of 154 books go out of print for various reasons—mostly sales below threshold for rights reversions. In the twelve days between Lampe’s defamatory blog and the filing of this action, Ellora’s Cave had requests for reversions of 404 titles, an astronomical increase. Since Lampe’s defamatory blog, Ellora’s Cave has reverted over 1250 more titles and still has requests that it is working on. In the one year since the defamatory post, Plaintiff has had almost double the number of rights reversions than it has had in its entire 14-year history.

cough

The Bankruptcy “Scare”

Let’s look at who created that bankruptcy “scare,” shall we?

On August 19th, Dear Author republished the layoff letter Patty Marks had sent to the EC biz list that had previously been published on Absolute Write. It included this choice quotation from Patty Marks:

We are not bankrupt (rumors) and are not in any kind of shape to even file bankruptcy.

Many of us read that as: “we are in too poor a shape to file bankruptcy.”

Many of us also saw that article signal boosted onto The Passive Voice, where the commenting got quite spirited. Many of us read and latched onto antares’s comment, specifically:

I used to do bankruptcy law.
Based on my experience, if I saw my publisher put out that statement, I would immediately sue to get my rights back.
What do I mean by ‘immediately’? I mean today. I want my suit going forward and notice served before they file for bankruptcy. Maybe I can get relief from the stay to litigate in state court. Maybe not and I’ll litigate the suit in bankruptcy court. But I bet when I offer to buy back my rights and put money on the table, the trustee will settle.
‘[N]ot in any kind of shape to even file bankruptcy.’ How do you know unless you have consulted a bankruptcy attorney? And I think this statement is in error (best case) or deliberately misleading (worst case).

Later on, antares clarifies in another comment:

Look, in an earlier comment I wrote that I would file a suit against the publisher immediately. Why?
To get my rights back? No.
Then why?
To improve my position against the other creditors.
Once the publisher files for bankruptcy protection — and the minute a business owner uses the B word I know he’s gonna file, it’s just a question of when — the writers no longer have rights. Yeah, you got the copyrights, but you licensed some of those rights to the publisher. Those licensed rights are now assets of the estate. The court’s duty is to equitably divide the assets among the creditors. If you are due royalties, you are an unsecured creditor. Maybe there is some entity in the bankruptcy food chain lower than an unsecured creditor, but I never saw such.
My suit leaves me still in the unsecured creditor category, but, as Orwell said, some animals are more equal than others.
I know of bankruptcies that paid a hundred cents on the dollar. Never had one myself. I also know of other suits that paid a hundred cents on the dollar to, say, eleven of twelve members of the creditors committee and screwed the twelfth with a 2¢ on the dollar payout.
As for filing bankruptcy only when you are insolvent . . . no. That’s the worst time to file.
Bankruptcy is a tool. You can use it to break contracts. To me, it is the start of negotiations.
If you 1) have a contract with EC, 2) are owed money by EC, 3) know two other writers whom EC owes money, and 4) want to get really nasty with EC, ask a bankruptcy attorney about an involuntary bankruptcy.

And yes, antares is exactly right: you want to jockey position against other creditors if you believe there are not enough resources to pay everyone. I believe this is one underlying concern of Ann Jacobs’s Motion to Intervene and her counterclaim.

The Reversions Numbers Game

So there are three reversion numbers given in the EC paragraph I quoted:

  • 154 books go out of print in the first 8-1/2 months of 2014, mostly because they were below sales threshholds.
  • 404 books had reversion requests between Jane Litte posting TCCoEC and the lawsuit commencing (12 days).
  • Since TCCoEC, Ellora’s Cave has reverted more than 1250 books, more than in its entire history before TCCoEC. (Note that this probably includes a significant number of the 404 immediately preceding.)

Those 1250 books were reverted for one of the following reasons:

  1. Low sales. Since they weren’t selling, I don’t see how Ellora’s Cave can or should complain about these. I also expect that this is the largest category. These only take people points because they should have been reverted long ago when there wasn’t a stampede.
  2. Buyout of contracts, which netted Ellora’s Cave an average of several years of expected royalties—thus they cannot reasonably complain about these.
  3. Finesse, by which I mean lawsuit threats, loopholes, and generally being a pain in the ass. I expect this to be the smallest category in number of books, albeit the one that uses the largest amount of people points per book and the highest downside risk.
  4. OMGWTFBBQ? Because one always needs an option like that in a discussion like this.

Option 1 is cash they’re not entitled to unless the author leaves it on the table. Given that most of the 154 were in this category, I’m betting most of the 1250+ were, too.
Option 2 is improvement of cash flow.
Option 3 & 4, well that’s just business.

None of the above are Dear Author’s fault. That’s how I see it, anyway.

Ellora’s Cave Should Have Chopped the Long Tail

Please Release Me

First, a sanity check on the 1250+ number: as of July 9, 2014 (just over a month before the layoffs), Ellora’s Cave had 4745 titles according to All Romance E-Books and as of today, 3694 titles according to ARe. In the meantime, Ellora’s Cave has published new books, so 1250+ seems perfectly credible to me.

I wrote this piece a year ago about reversion theory, and it included this bit:

As an example, calculate how long it takes to put together all the royalty information, divide by the number of authors. Figure out how much you’re paying the people who do that work, including cutting the checks. Triple that cost. For the authors who aren’t making, on average, that much for the house over the last year, offer to release their titles (for no fee).

When Ellora’s Cave was having difficulty with the new royalty system and (likely) having to do everything twice? Even then was too late for this task. Those books should have been cut long enough before the transition that the work load would have decreased before the royalty system changeover started.

Suppositions for this hypothetical:

  1. Let’s say (pulling a random but plausible number out of the air) that cut 50% of the 1400+ books reverted from 2014 onward.
  2. We know that there were 928 authors on 7/4/14 (thank you archive.org) and 808 as of 9/29 (looking on EC’s new site). Granted, EC’s added authors in the interim, but let’s handwave that complication away. Let’s say that half the drop in authors (i.e., 60 authors) wrote those 700 books.
  3. Let’s say the 154 books were averaged out between Jan and mid-Sep (154 / 8.5 = 18.1), and then since then the other 1246 evenly.
  4. Let’s say they added their 349 new books evenly distributed as above.
  5. Let’s say that, for books still in EC’s fold, each unreverted book has averaged sales from three outlets per month.
  6. Let’s assume the early reversions have 5 book sales per month on average from a single outlet, the average sale price is $4.99, and the author earns 37.5% royalty and is paid on a post-mid-2011 contract.
  7. On average, each number entered/uploaded needs to be entered once (into each royalty system) and checked once.
  8. Let’s assume the data entry rate (per a GPO estimate) is 5,200 keystrokes an hour, and that each piece of data contains an average of six strokes/digits/letters. So, 1,000 pieces of data x 6 digits / 5,200/hr = 1.15 hours.
  9. Assume a random Akron-area rate I found for skilled data entry/bookkeeping at $13.50.
  10. Using the number of pieces of data for each book per sales outlet here (i.e., 7)…
  11. I’m not assuming any information about those who bought out their contracts, because what I’m looking at is how much it cost to just produce royalty statements, not how much is paid in royalties.

We now have enough information to do this:

Screen Shot 2015-10-07 at 12.38.46 AM

The tl;dr version: It would cost an estimated $28,378 (times two for two royalty systems) in bookkeeper/data entry costs to pay royalties to Ellora’s Cave authors since January 2014 to the end of August 2015 (assuming no backlog and assuming all were actually paid).

If EC had instead cut the list early when the accounting system was going in, they would have lost an estimated $1,777 in royalties, but would have saved an estimated $2,839 (times two for two royalty systems) over that period. So, net savings of $3,901.

Like I said, chop the long tail.

While I’m at it, The Kicker

I seriously, seriously underestimated how many pieces of data Ellora’s Cave would need in order to prove substantial truth. Why?

I didn’t know about the mid-2011 contract change and how it could create accumulating debt coming into 2014.

Therefore this needs to change:

So for each month:
4500 books x 5 stores books sold in that month x 7 other pieces of data = 157,000 pieces of data (or 174 per author). Per. Month.
Times ten months, so 1.57 million.
Consider the legal and accounting billing that would be involved in re-verifying and distilling 1.57 million pieces of data.

Let’s assume an average of 4000 books, and we’re going to have to look from mid-2011 to the end of the lawsuit. So it’s already four years and a quarter.

Let’s assume 3 stores per book.

4,000 x 3 stores x 7 pieces of data = 84,000 pieces of data per month. Times 51 months = 4.28 million pieces of data. (Why 51 months? Damages calculation assuming they’re able to prove things substantially true.)

4.28 million pieces of data x average of 6 chars / 5,200 entered/checked an hour = 4,943 hours at $13.50 is an absolute minimum of $66,731. Just for the data itself, not for the interpretation of it. Not for the double-checking against vendor (e.g., Amazon) records.

Good luck with that.

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

deirdre: (Default)

ellora's cave blog header

Are you an Ellora’s Cave Writer who: asked for your rights back as a response to this Jaid Black post (August 12, 2014)?

For context, that would be the week before the editor (and other) layoffs, before the Curious article by Jane Litte, and before the lawsuit.

If so, Dear Author’s defense would like to hear from you. Please email me (deirdre@deirdre.net) or ping me on Twitter, Facebook, or AbsoluteWrite.

(They may still want to also hear from authors who requested reversions for reasons other than the Dear Author Curious post, too.)

Throwing a Bone to Everyone Else

Jaid Black and Richard Stansbury have a new project: Serial Killers Anonymous. It’s about a bunch of serial killers who meet in a group. You know, like twelve step. It gives a date of June, 2015.

I don’t want to say it’s been done before, but there’s an identical title and similar concept from this 2013 posting by Alexander Williams.

There is an in-development title of the same name listed on IMDB, but whether it’s about Alexander’s script or Jaid and Richard’s (or someone else’s entirely), I could not say. The production company given is Orchard Place Productions which is a Pittsburgh, PA company. Their web site does not list SKA, however.

The movie they released last month, though, featured this song from Supervoid, which is a little hard for my taste. Good though.

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

deirdre: (Default)

ellora's cave blog header

This was an interesting Google find that you can locate by searching on: USDOT Ellora’s Cave and clicking on the fmcsa.dot.gov link on the first page.

Screen Shot 2015-09-08 at 1.55.00 PM

Screen Shot 2015-09-08 at 1.54.48 PM

The “OOS” (Out of Service) category column has an entry which states: New Entrant Revoked – Refusal of Audit/No Contact and the “OOS Date” (Out of Service Date) is November 17, 2008.

Per the MSCIP Step Chart, which explains the various possible explanations that appear in the “OOS” category column. While there is no perfect match, this appears to most closely match the description for Step #63.

But what does it mean?

I believe it may be about the Ellora’s Cave bus.

Ellora's Cave Party Bus. Photo by Cait Miller.

Ellora’s Cave Party Bus. Photo by Cait Miller.

Per the USDOT website:

Apart from federal regulations, some states require commercial motor vehicle registrants to obtain a USDOT Number. These states include:
[…]
• Ohio

Per that, it appears that any commercial registration in Ohio requires a valid USDOT number.

Note that this isn’t a USDOT number for the vehicle, but rather for the carrier. So if Ellora’s Cave had, oh, any commercial vehicle registered to the company, they’d need to have a current, valid USDOT number with no Out of Service Orders.

Like, say, if they owned a bus.

It does seem odd, given that the description for Step 63 says that yes, the carrier’s vehicles would be targeted at roadside, and yes, deny registration, that this situation appears to be unaddressed after almost seven years.

There’s a formal process for issuing an out of service order, detailed here. It just strikes me that it’d be the kind of thing that’d be hard to miss.

It’s not unheard of for government sites to be incorrect, though, so I don’t want to read too much into it.

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

deirdre: (Default)

ellora's cave blog header

I’ll post Tina’s email first, then respond to her points.

From: (Tina Engler)
Sent: Thursday, September 3, 2015 2:39 PM
Subject: [ec_biz] legal update

We will not be responding in a public venue to the “trial by social media” smear campaign being staged by the defendant and her counsel and will instead keep this in the court and on our private business loop. While we cannot respond to most of this, period, we can respond to some of it.

  1. Stating that I destroyed evidence is a complete and total LIE. There was no evidence to destroy. Had the defendant and her counsel truly believed that, they could have subpoenaed Facebook’s records just as they did Twitter’s records.
  2. I have not refused attempts at discovery. On the contrary, defendant’s counsel failed to request discovery in the timeframe set forth by Judge Adams. It is my understanding the defendant’s counsel is filing a motion to extend the discovery period; whether or not the motion is granted is up to the court.

  3. Depositions are never fun and are by their very nature highly intrusive. That said, WE did not release the deposition transcript. I’m assuming the defendant released it to garner sympathy, but that is my conjecture.

    I have only read bits and pieces of the deposition so I’m unaware of most questions and accompanying answers, but one of our authors brought to my attention that our lawyer asked the defendant her daughter’s name. Asking her such a question is not a “low blow” as I was asked the same question the last time I was deposed. It’s not as if we’re putting any of this out there on social media anyway; the defendant is the one doing that. As far as “low blows” and children go, my kids have been smeared on social media by your peers, and a couple of you, so don’t go there with me. The defendant herself published my home address on her website for any weirdo to see when my youngest daughter was 11 or 12 years old. (It’s still on her website last I looked.)

  4. The 6-page motion we filed was NOT for summary judgment on our case against the defense, but rather for summary judgment on the defense’s counterclaim. It was short because, per my understanding, the counterclaim was short.

  5. The defense counsel’s most recent legal track record involving ethics violations and breach of fiduciary duty:

http://fightcopyrighttrolls.com/2015/07/09/marc-randazza-must-pay-600k-for-clear-and-serious-breaches-of-fiduciary-duty-against-his-former-client/comment-page-1/

In closing, we will provide you with a bit of our side of the situation within the 30-day time frame provided by the court for response. The bulk of our evidence will be presented at trial in March.

Tina

My Responses

  1. Tina’s statement about subpoenaing facebook assumes that facebook actively keeps old deleted posts and accounts. I’m sure a company as large as facebook does have a retention policy, but it’s not infinite. However, if EC/JJ hadn’t sued about the shopping trip allegation (and I fail to see how the company has standing to do so given that the alleged activities did not take place in Ohio and did not involve a corporate officer acting in her official capacity), then Tina’s facebook postings would not be relevant at all.

    Added this paragraph: Commenter Not Really Anonymouse commented with this facebook link that covers their retention and subpoena policy.

    Added this paragraph 9/23: Apparently, Tina’s facebook page is back.

    I had decided against posting something Tina posted on her FB because it was more about Tina the person than about Tina in her capacity within EC, but it’s relevant tho this point, so I’ve added it in its own section below, and I’ll let you draw your own conclusions.

  2. The timeframe was actually agreed upon by both parties (not set by the judge), and discovery is not over per that timeframe. Here’s the actual document. Note that there is no final date for non-preliminary discovery.

    (added Sep 11) Also note that per plaintiff’s own filings, what Tina says about discovery is untrue. Note that Randazza asked for a deposition of EC, presumably Tina, on February 26th. Note: PMK = “person most knowledgeable.”

  3. I agree that depositions are intrusive. As I said the other day on Twitter, depositions are the real horror show. Attorneys have wide latitude to uncover discoverable information.

    It’s also possible, given how small family-owned businesses work, that a minor child could be involved in operating a small business. For example, in my teens, I worked for my family business making fighter aircraft cable tension regulator bushings. Had there been a lawsuit related to my work, it’d absolutely have been relevant to depose my parents about me.

    That said, I do believe that asking specifically name and age is douchebaggery. “Is your child a minor?” “Are they involved in operations of Dear Author?” Those questions would have been fine, and relevant. If the answer to the second question had been yes, then maybe asking a name would be relevant, but it’d still have been possible to use “your child” instead when asking questions.

  4. Tina’s correct. I had intended to get the actual full document title phrasing from the docket, but I apparently didn’t, so my apologies for that accidental omission. I’ve also made a correction in this post.

    That said, if discovery’s genuinely over (as EC claims), why didn’t they file for a Motion for Summary Judgment on the entire case?

  5. There are definitely some troubling things mentioned in the interim arbitration award, and an alleged version of that 26-page document can be found here, but it’s also fairly obvious that there was some serious WTFery going on at that job. Here’s an article that mentions some of Randazza’s claims and a few excerpts:

    • Those activities, according to the arbitrator’s decision that was widely disseminated just recently through the adult entertainment B2B community, included testimony by Randazza that his office at the studio was used for a porn shoot and that he was upset after he drove two studio officials in the backseat of his car while they proceeded to give blow jobs to each other.

      I’ve worked for a legal department (more than once, most recently as a DBA contractor for Honda North America) and, uh, lawyers don’t like it when you use their offices for anything, let alone a porn shoot.

    • Judge Stephen Haberfeld, the arbitrator, however determined that, contrary to Randazza’s central contention in arbitration, the termination of his employment had nothing to do with a sexually charged work environment.

    • In response to the lawsuit and a press release distributed to the adult entertainment community by Corbin Fisher last week, Randazza’s publicist, who submitted a press release on behalf of the attorney, noted that Haberfeld’s award is not a “final result.”

    There have apparently been over ten thousand hours of work on this, and it’s a big mess. While it looks bad for Mr. Randazza, I’m sure he wouldn’t have filed the suit if he didn’t think he had a better than even chance at getting a resolution in his favor. Interim award is not a final award, so it’s a little early to crow about it, and especially early to troll the #notchilled hashtag with. (Though, in fairness, that may not have been Tina.)

Tina’s Last(?) Facebook Post

I’d previously commented that I didn’t feel right posting this because of the content. However, it’s directly relevant to Tina’s (and my) point #1 above, so I’m posting it.

I received this on August 21st, but it may have been posted on the 20th. Somewhere around there.

Emphasis added.

It’s unfortunate that only hindsight is 20/20. Why can’t foresight work that way? I regret the day I read my first romance novel, but I especially regret the day I published my first book. It was genuinely the biggest mistake of my life.

I should have taken that full scholarship into the phd program I applied to because my life might have turned out so differently. I might never have developed panic disorder. I definitely never would have had to deal with a horde of self-entitled, paranoid, liars… At least not outside of a lab setting. My word, honor, & integrity wouldn’t have been questioned, let alone assaulted, on a daily basis, because I wouldn’t be in a profession that is glutted with conspiracy theorist women who thrive on conflict, gossip, drama, & inflicting pain on others.

Growing up, my biggest fear was living a normal life because it felt like mediocrity; today I would give anything to have that. I used to feel sorry for women who chose unpaid professions like being a housewife; now I envy them.

Point blank: I’ve made countless mistakes in life, but I’ve never cheated anyone. I don’t have a poker face or a filter; people always know where they stand with me and they always know where I stand on every issue that matters to me. I’ve never kept skeletons in the closet because I have no filter and because I never understood the utility in pretending. I might be a handshake kind of bumpkin, but I’m not a swindler.

The past 11 years have been… Not worth this. I realized tonight that I’m constantly throwing good energy after bad by giving a shit about my completely annihilated reputation. The chips are going to have to fall where they may… I just do not care anymore. Even if I wanted to care, I’m too tired to.

Some of you will view me as depressed; some of you will view me as a sympathy seeker. Truthfully? I’m too numb to feel anything at all so view me as you will.

I’m leaving this post up until I wake up and then I’m closing all my social media accounts. That should give plenty of time for friends, family, & gossips alike to read this. I’ll miss the interaction with friends and family, but you know how to find me. To my readers…

I’m sorry I let you down by not finishing the Trek, Viking, & Death Row series. All I ever wanted to do is write, but for the past 11 years it’s been nothing but one thing after the next. (I’m not the type of person who can write while constantly feeling anxious.)

It is for this reason that I am pulling my Trek story out of the “Alien” anthology. I don’t want to hold up Laura, Amy, and Tara by forcing them to wait on me to finish edits that could take me who knows how long. Plus, as I’ve already told my mom, I decided not to chance poisoning the success of these 3 talented authors by having their names tainted by mine.

Laura can & will carry the anthology solo. I wish I had her strength & resilience. A stroke doesn’t stop her, nor do the endless unchilled who threaten her on a daily basis and email her things like “I wish you had died when you had that stroke so EC would go under and I can get my rights back.” (All that just for being a professional who doesn’t trash talk on social media or hatch plots to get out of her contracts.)

At any rate, this post is turning into a biopic dissertation so I’ll end here. I will miss all of you I regularly interact with… And I genuinely mean that. It’s just time for me to do a Kenny Rogers and “know when to walk away, know when to run.”

Take care of yourselves. Hopefully we’ll meet again. xx

Now, did Tina delete the account and/or posts? I don’t know, but people said they could no longer reach her account, and neither could I.

What I do know: generally, deleting (or hiding) anything possibly relevant once one is in litigation isn’t a great idea.

Draw your own conclusions.

One Last Thing: A Pro-EC Twitter Account Trolling #notchilled

I hadn’t realized the @Retireme15 account had posted to #notchilled previously in April, but I don’t catch everything.

I’ll just note two things: this tweet was posted about ten minutes before Tina’s email to the biz loop was posted; it was posted at a time when another pro-EC and pro-STGRB tweeter was purportedly active.

2015-09-03 14.17.08

(Click image for full size; troller’s at the bottom.)

And a response from the blogger who posted the article Tina links to in the first place:

https://twitter.com/fightcopytrolls/status/639543515081478145

https://twitter.com/fightcopytrolls/status/639543590578954240

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

deirdre: (Default)

ellora's cave blog header

The Romance Writers of America (RWA), the largest industry group of romance writers, has just forwarded a statement to its chapter leaders (that may in turn be forwarded).

From: Allison Kelley
Sent: Sep 3, 2015 6:21 PM
Subject: [Chapter Leadership] – notice regarding Ellora’s Cave

Permission to forward granted:

I have been in touch with Patty Marks, CEO of Ellora’s Cave regarding complaints about the company. She responded by stating “currently we are not as up to date with royalties as we want to be and will be,” and added that the company is trying to catch up. Failure to pay authors in a timely manner is a violation of RWA’s Code of Ethics for Industry Professionals. Violations of this Industry Professional Code of Ethics may result in loss of privileges such as (but not limited to) listing in Market and Agent Updates, participation in workshops and pitch sessions, and the opportunity to advertise in RWA’s publications.

I notified Ms. Marks that Ellora’s Cave must refrain from contacting members or chapters regarding new submissions and refrain from participation in any RWA or chapter event until the company has achieved satisfactory resolution of the Code of Ethics violation.

RWA makes no warranties regarding business practices or financial strength of any publisher or agency. Each author must evaluate the company, carefully read the individual publisher’s/agency’s contract, and decide if s/he is willing to accept the conditions set forth in the contract.

Allison Kelley, CAE | Executive Director

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

deirdre: (Default)

ellora's cave blog header

So Ellora’s Cave finally filed a status report. (boring)

And Ellora’s Cave filed their Motion for Summary Judgment. (yawn) tl;dr: We didn’t do anything wrong, it’s all lies, we don’t owe six figures. Here, have a sworn statement. Clarification: Note that this is an MSJ against Dear Author’s/Jane Litte’s counterclaims, not the whole case.

The really interesting news is the complete mic drop that’s defense’s Motion for Summary Judgment. (or use this link for the 33mb zip file)

Look, I’ve been getting the pieces of this assembled for y’all for over an hour, and I honestly haven’t managed more than a glance here or there. So I’ll just give some comparative numbers so you can understand how qualitatively different the two filings were.

Like you, I’ll probably read them in the morning.

  Ellora’s Cave & Jasmine Jade Dear Author & Jane Litte
Number of Exhibits 2 54
Longest Exhibit 4 pages 296 pages
Number of Legal Cites 14 cases 55 cases

If you’d rather go through the docs one by one or pick and choose, the docket copy I keep is now up to date and everything’s uploaded with (I hope) all the same descriptions as on the court docs.

The most interesting defense exhibit is the 296-page defense deposition #46-9. A few highlights:

  • p. 163 One witness has discovered that she’s owed an additional $17,000.

(will add more bullet points soooooooon)

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

deirdre: (Default)

ellora's cave blog header

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.

deirdre: (Default)

ellora's cave blog header

I got word about a week ago that Ellora’s Cave’s headquarters were for sale. This building isn’t owned by EC, but by sister company Brannon-Engler Properties, Ltd. Per Dear Author’s Curious post, one of the things alleged in the Brashear case was that the property was rented to Ellora’s Cave at inflated prices.

I had other things going on, so I’m a little late in reporting on it, but I think you’ll agree it was worth the wait. The other day, I got an anon tip containing Tina Engler’s latest missive:

For the past year we’ve only been releasing information on a need-to-know basis because it feels pointless to make announcements when we know that anything we say will be twisted, redistributed, and broadcast in a false light by a select minority of authors who (a) don’t know what they’re talking about and (b) have agendas. That said, here are my responses to the latest rumors:

  1. Yes, the building EC currently inhabits is up for sale. As we no longer print books and have downsized to boot, it makes no sense to keep such a large facility with 3/4 of it being unused space. When the building sells we will be moving into a commercial area that is zoned for retail; the offices will be in the back and our (upcoming) bookstore will be in the front. We’re actually very excited about this and have been working toward the goal of getting the Home Ave building up for sale for months; it is now (finally) on the market.
  2. No, we did not spend “tons of money” on our new website. It was created in-house by Darrell King who is already on payroll.

  3. We are not filing for bankruptcy. (This rumor is really getting old.) We are further downsizing where we need to, upsizing where we need to, and getting EC back to where we were before… and then some. This process takes time, but it’s definitely happening. We’ve got several irons in the fire and look forward to furthering the careers of our loyal, professional authors. (More to come on that later.)

I think that’s it for now. Have a wonderful week.

Tina

Additionally, there was another followup from Tina:

EC should have informed you that the old links to your books do not work on the new site. I didn’t realize this either until a week ago after spending two hours updating my links. I am truly sorry for the oversight.

So I’m going to respond point-by-point:

  1. First, all authors have agendas. All businesses do too. This is a very us vs. them kind of statement that has no constructive purpose.
  2. On the building sale: good for the most part. Tina basically echoed what I said a few days ago on Twitter: they don’t print their own physical books any more, and thus the building is too large a space for their current needs. My only criticism is that this feels like it’s happening significantly later than it should have. My understanding, which may be in error, is that they stopped printing their own physical books around the time of the POD printer lawsuit, which dates to 2011.

    Note that this doesn’t mean EC will stop having print versions of books, just that they will no longer be printing and stocking them in house. Switching to a just-in-time POD production company (e.g., CreateSpace) makes sense. (I’m actually a big fan of just-in-time manufacturing. More on that in a later post.)

    On the other hand, a bookstore? When so many are closing? So, they’re selling off their book storage space so they can move into a smaller space where they’ll need book storage space?

    Ellora’s Cave is not going to get significant foot traffic unless they’re somewhere with really high retail rents. After all, the space they have right now has a front office space that could be a bookstore. It has window space, though too many divided lights to make it a display window. Also, anywhere with a lot of window space will be expensive to heat in winter.

    Also, having worked in a bookstore, I’m pretty sure this will be a huge rude awakening for EC. The US lost ~20% of its indie bookstores between 2002 and 2011. In addition, a bookstore requires continual staffing, and Ellora’s Cave doesn’t have that kind of staffing level right now.

    But, you know, romantic ideals about bookstores. Whatevs.

  3. Despite other criticisms about the new website, I think moving to WordPress with WooCommerce on WPEngine is a huge improvement. And, thank God, no more blinding red. Also, they’re using WooCommerce for their shopping cart, and that is what I would have suggested had they asked.

    That said, I’ve given it a few weeks to settle in, so I think I can make some real criticisms now.

    • The way the migration was done killed Ellora’s Cave’s existing SEO (search engine optimization). All the inbound links from everywhere are now broken. When those links bring up 404 errors (page not found), what happens is they then lose the inbound link as adding to the value of that site. They might as well have bought a brand new domain and started there.

      The right solution is to add a bunch of redirects, one for each author and each book. Unfortunately, the tools for doing so on WPEngine aren’t super great because it doesn’t use Apache’s .htaccess format for it.

      There is exactly zero reason that this should be on authors (or reviewers), though.

    • Not migrating customers and their libraries is amateur hour. I can understand libraries taking a while, but then you’d have to shut off e-commerce until you worked the old libraries into the new table structure.

      Here’s my constructive suggestion: if EC can’t migrate people except by hand, migrate people’s libraries in the order they sign up for an account on the new site. It would also be nice if there were some time frame given for when customers’ libraries would be migrated. (And totally unprofessional for them not to be migrated.)

      Over time, that will reduce customer service requests, and it will also give EC a goodwill boost it desperately needs. Plus, many of us—myself included—have bought books off of EC’s website and we’re basically cut off from our libraries. Apparently, this is not the first time EC’s done this; I’m told they also did so when they upgraded to the red site from the previous incarnation.

      Not only that, but Tina was encouraging authors to encourage their readers to buy books directly off EC’s site, so now EC’s throwing those authors and customers under the bus?

      Can you just imagine the outcry if Amazon did this for Kindle books?

      If you want Amazon’s business, Tina, you have to be at least as good as Amazon. Not amateur hour.

    • I know default WordPress search isn’t the world’s best, but visit the new EC site and search on, say, Paris. One of the many titles found has Paris in the title, but not all of those books have the search term even in the description. I don’t know how they managed that, but my WordPress searches don’t work that badly. Logic suggests that author matches and/or title matches should be ranked first, though, and they’re not.

    • There is no information on the site about how to submit to the publisher. That’s probably a good thing, though.

    • Others have noted that there is no physical address. Given that their building is for sale, that may well be temporary, but I’m more likely to do business with a site that actually lists their physical address.

  4. While I’m glad Ellora’s Cave isn’t filing for bankruptcy, part of me wonders how much of this is sheer stubbornness. Several people have reported that they haven’t received a check since May, which paid for royalties due up through January.

Ellora’s Cave v. Dear Author Lawsuit Update

It’s been a quiet few months, and the only thing to happen in the last six weeks is another status update (docket item 39) from the defense. Status reports are supposed to be filed every 45 days by both parties. Only two things happened since the last status report:

  1. On June 15, 2015, Plaintiffs served responses to written discovery.
  2. On July 15, 2015, Plaintiffs and Defendants served their witness lists.

What’s interesting, though is that there’s only been one plaintiff status report (on April 28th, docket item 35) and there have been four defense status reports. Normally, things filed with the court by the parties are a matter of public record, so I’d expect to see them on the docket.

Now, granted, the discovery period is a time when the parties are incredibly busy, but there may not be a lot of court filings. So, from an outsider’s perspective, this can appear to be a very “quiet” period, even though it’s anything but.

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

deirdre: (Default)

ellora's cave blog header

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.

deirdre: (Default)

ellora's cave blog header

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.

deirdre: (Default)

ellora's cave blog header

On March 29th, Tina Engler sent this email out to one of the Ellora’s Cave email loops, and I considered it not interesting enough to post. However, given the various concerns I’ve been reading in various places, I felt it was worthy of posting and commenting. Also, a Lolita Lopez update at the end.

1) We have no interest in what goes on in author loops. We don’t even monitor our own let alone anyone else’s. Closed loops are closed for a reason: so authors can vent to each other and support each other. We would never violate your space. If you could find even one credible instance wherein we’ve ever violated authors’ private spaces then I could understand getting worked up, but since no such incidents exist it amounts to worrying over literally nothing.

2) To our knowledge, there are no faulty 1099s out there. The handful of people who had questions emailed us and we responded. All replies to those responses were to the tune of “Ohhh okay. Thanks for the explanation and have a great day!” If you have a problem with your 1099 and do not bring it to our attention then we have no way of knowing. Again, and as was stated in the last email sent to this loop, if you do not receive an email reply within the specified amount of time then just call us at the author number we set up for you (last post) or send us a certified letter because chances are we never received it. To date, we have received one phone call and her call has been returned.

3) Human error and computer error are unavoidable and are going to happen. The walking-on-eggshells climate that has been created by gossips and conspiracy theorists doesn’t allow for either eventuality and it’s getting old very quickly. With over 600 royalty checks going out every month, mistakes are inevitable. Please be in the habit of checking your statements every month. Contrary to gossip, mistakes are actually more the exception than the rule, but they DO happen.

As always, we encourage you to contact us with any questions you have.

Thank You & Happy Sunday,
Tina/Jaid

Point the first: Author Loops

Because no doubt some author loop information has become discoverable (see Courtney Milan’s kboards post here), there’s always the possibility that, even if Ellora’s Cave had no intention of invading the privacy of author groups, if they need to make their case based upon some of that information in discovery, I believe they will.

However, I have zero information as to whether or not that will, in fact, be necessary.

I’m one of those who doesn’t believe in premature optimization of anger, aka “don’t borrow trouble.” I think we should wait and see what happens.

That said, I find it difficult to reconcile the above statement of Tina’s with the stance in the lawsuit paperwork about anonymous commenters—many of whom were authors.

To refresh memories, that statement (which can be found on p. 21 of this document) says:

Additionally, Plaintiff request [sic] that Defendants disclose the name of the anonymous commenters on the blog so that the spreading of the defamatory statement can be stopped.

If that’s Ellora’s Cave’s stance, then why wouldn’t they be interested in discovery on author loops?

Therefore, my feeling is that Tina’s statement is meant to appease authors, but is not reflective of the reality of having initiated this lawsuit, nor the stated aims of the lawsuit.

(Though I still maintain that the lawsuit may ultimately be about Adam’s comments on TCCoEC.)

Point the Second: 1099s & Errors

Given Lolita Lopez’s story about last year followed by the August layoffs, several people were hoping there wouldn’t be big issues with this year’s 1099. To EC’s credit, that hasn’t seemed to happen. Julie believed she’d had one, but tweeted that she was in error.

The only other 1099 issue I’ve heard of was co-authors receiving 1099s for different amounts, but I believe they’d also received checks for different amounts. It’s been a LONG time on Twitter, and it’s not easy to look back for the underlying information.

As Tina says, errors happen.

Lolita Lopez Update

Lolita posted about a couple of things, including some very scary health news she’s been through. Relevant to the unfolding story here, she revealed the following:

Last week, I learned that emails from Ellora’s Cave that were meant for me never reached my inboxes. They were sent to someone else in the company’s headquarters who–curiously–never forwarded them to me or let the sender know they had gone to the wrong place. So, for six months, I needlessly stressed over something that could have been fixed with one or two quick conversations.

On Tuesday morning, Patty Marks, CEO of Ellora’s Cave, offered a very, very gracious compromise on the unwritten spec contracts for Grabbed books 4, 5, 6, and 7. These books and the rights to them and the Grabbed world are back in my hands. I can’t promise that you’ll see Raze, Terror, Torment or Cipher’s books this year (not with all that’s going on with my heart) but I will write and publish these books.

I’m thrilled that she and Ellora’s Cave have come to an agreement, and that the series will continue. I also wish her the best of health with her heart issues.

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

deirdre: (Default)

dear-author-dear-romancelandia

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.

deirdre: (Default)

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.

deirdre: (Default)

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.

deirdre: (Default)

elloras-cave-blog-header

Today’s Ellora’s Cave legal update includes the defense’s objections to @pubnt’s Motion to Quash the Twitter subpoena.

To recap where we are: in their initial disclosures, defense in the Ellora’s Cave v. Dear Author case filed their witness list, listing Twitter account @pubnt as one of the witnesses:

The Pub Net Twitter account has made a series of statements on Twitter since the outset of this case, that are with obvious knowledge of the case at hand. The author behind this Twitter account will have additional information as to the operations of Ellora’s Cave.

@pubnt filed a response with the court, which the Court interpreted as a Motion to Quash. My blog post and Courtney Milan’s blog post on the subject.

Perhaps the most amusing of @pubnt’s reasons in her letter to the court is this (note: I substituted Jane Litte’s pseudonym for her legal name):

The Defendant, (Jane Litte), calling us as a witness for the Defense is perverse. 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. Thus the Defendant has no right to call us as a defense witness and her attempt is perverse. Thus you further have proof that the Defendant’s only ulterior motive in calling us as a witness is to use your court to seek out our identities in order to victimize, harass, stalk, defame, and libel us as she has done many times before, purely for daring to say positive things about her target, the Claimant.

I can’t even begin to tease apart all the false assumptions here, but let’s start with why I believe @pubnt’s testimony is of interest to defense:

As I see it, @pubnt breaks down to at least one of four classes of people:

  1. An Ellora’s Cave insider using @pubnt to conduct an asymmetric information propaganda campaign.
  2. A close confidante of an Ellora’s Cave insider using @pubnt to conduct an asymmetric information propaganda campaign.

  3. An internet troll simply being provocative for attention. (Initially, I believed @pubnt was solely in this class.)

  4. Someone who needs mental health help.

To be clear, my belief is that, in fact, all four are strong possibilities, though I think it’s mostly # 1. #3 and #4 would not lead to discoverable information, so I think that’s part of why @pubnt tried so heavily to look like #4 in her letter to the court.

It is in fact the “asymmetric information” part that makes @pubnt an interesting witness for the defense.

Defense’s Filings Today

While I was hoping for some glittering Randazza prose like the glorious letter he wrote for 8chan vs. Julien Blanc’s takedown letter, sadly our esteemed esquire was busy with a trial last week and so the task fell to Victoria Serrani, the local (Ohio) counsel for defense.

Also, in paragraph 2 of the Motion @pubnt claim that “[i]f 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 Defendants’ case.” See ¶2 of Motion. Again, these anonymous authors are not mere spectators. Either @pubnt are insiders at Ellora’s Cave Publishing, Inc. or have received inside, nonprivileged, information.

The filings also included a copy of the Twitter subpoena, dated January 27th, with a response due by February 6th, and a selection of @pubnt’s tweets.

Note that @pubnt’s letter to the court was dated February 7th, the day after Twitter’s response was due.

What I Think Will Happen

I’d been saving this information from another case I ran into recently. Two Twitter accounts, @FakeUli and @NotUliBeringer, were Does (as in John Doe) in a case filed by MUSIC Group, who wanted to uncover their identities.

Like the Ellora’s Cave case, the primary subject matter is defamation.

The Music Group v. Does case was brought in Washington state, which is still in the same appeals circuit (9th) as Twitter’s home turf. Yet, Twitter insisted that their local district court (California’s Northern District, based in San Francisco) rule on the subpoena.

Here are the three most relevant documents:

  1. Motion to Transfer (Nov 26, 2014)
  2. Declaration in Support of Motion to Transfer (Nov 26, 2014)
  3. Order Enforcing Subpoena (Jan 16, 2015)

So, six weeks beginning-to-end.

The last document is worth reading because it talks about the right to anonymity vs. the right to serve defendants in a lawsuit. One of the reasons the motion succeeded was the narrowness of the request (the identity needed to be known to serve the defendants in a lawsuit).

I’m not sure DA’s Opposition Motion needed to be drafted that narrowly, given the @pubnt’s claims of knowledge about EC’s inner workings, though.

I’d personally have picked different tweets to highlight:

Apparent inside knowledge of the alleged accounting system crash, e.g.:

https://twitter.com/pubnt/status/567158508718919680

Discussion of EC’s current cash situation (search @pubnt’s tweets on surplus), e.g.:

https://twitter.com/pubnt/status/567158650486394880

Discussion of merger (search @pubnt’s tweets on merger), e.g.:

https://twitter.com/pubnt/status/556528514028273664

https://twitter.com/pubnt/status/556178930726895616

Discussion of when certain people would be paid and when certain lawsuits would be filed, e.g.:

https://twitter.com/pubnt/status/561517436244353024

Also, I’ve added an updated PDF of @pubnt’s tweets through Feb 19th.

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

Profile

deirdre: (Default)
deirdre

February 2017

S M T W T F S
   1234
56789 1011
12131415161718
19202122232425
262728    

Syndicate

RSS Atom

Most Popular Tags

Style Credit

Expand Cut Tags

No cut tags
Page generated Apr. 26th, 2019 10:58 am
Powered by Dreamwidth Studios