Last week, plaintiffs Ellora’s Cave and Jasmine Jade Enterprises along with defendant Jane Litte submitted a stipulated (meaning: opposing sides agree) motion for extension of time to answer.
Today, the judge denied that motion. That means all three parties who haven’t filed answers will have theirs due (I believe) next week.

What’s Up Next?

1. We’re still waiting for the ruling on the remand to state court. It’s expected to be denied.
2. I’m sure some interesting stuff will turn up in the answers.
3. Jane Litte may file a counterclaim.

Following that, the exciting discovery phase.

Read More

QA Engineer walks into a bar. Orders a beer. Orders 0 beers. Orders 999999999 beers. Orders a lizard. Orders -1 beers. Orders a sfdeljknesv.

— Bill Sempf (@sempf) September 23, 2014

@sempf was it a mock bar?

— Brian H Prince (@brianhprince) September 23, 2014

@sempf You forgot about when he ordered 0’; DROP TABLE BEERS;

— Adrian Petrescu (@apetresc) September 23, 2014

@sempf @joshbillions Ah yes, the Edge Case Saloon. A fine establishment.

— Bill Van Loo (@billvanlooteach) September 23, 2014

@sempf A QA egineer walks into a bar. ｏｒԁèｒｓ å ｂëｅｒ

— sheila miguez (@codersquid) September 23, 2014

@sempf @marxculture add ‘tries to break the beer tap’, ensures that the liquid coming from the beer tap is in fact, beer.

— Paul Walsh (@Paul__Walsh) September 23, 2014

@sempf Orders a bier. Orders a cerveza. Orders a pivo. Orders a cerveja. Orders a pia. Orders a øl. Orders a ເບຍ. Orders a 啤酒.

— Aleksis Tulonen (@al3ksis) September 23, 2014

@sempf @therealfitz Response from our QA expert: pic.twitter.com/W6ejEYueMU

— Jenna Bilotta (@jenna) September 23, 2014

@sempf Quickly orders a second beer before the first is served.

— Brian Ott (@botticus) September 23, 2014

@sempf Bartender pours one beer and says “Works on my machine”

— Chris McMahon (@chris_mcmahon) September 23, 2014

@sempf pentester orders <script>alert(1);</script> beers 😉

— Simon Bennetts (@psiinon) September 23, 2014

@sempf Sample code walks into a bar. But only after walking into a foo.

— mbklein (@mbklein) September 23, 2014

. @sempf Meanwhile, her security researcher friend bypasses the bartender, pours <img src=x onerror=alert(‘xss’) /> beers for someone else.

— James Roper (@jroper) September 24, 2014

@sempf @OzIndie you forgot: QA Engineer orders a beer, walks into a bar.

— Rossy (@SudoRossy) September 24, 2014

Read More

For those who don’t know, Requires Hate was a book reviewer—of sorts. And so much more. Laura J. Mixon analyzes.
In many other situations book reviewers are simply and only book reviewers, e.g., this review and set of progress comments from Blythe that led to Kathleen Hale’s self-admitted stalking, leading to the #HaleNo backlash.
Here’s RHB’s MO:

Using one of her pseudonyms, RHB begins chatter about a writer or a social-justice topic on her blog, a forum such as LiveJournal, or on Twitter. She uses increasingly obscene and insulting language against her target(s). This is done to goad the target (or their supporters, or a particular community) into responding sharply. In their responses RHB finds words or phrases she can re-cast as misogynistic, homophobic, racist, or colonialist (sometimes they actually are those things, but for her purposes it doesn’t matter).
For instance, rachelmanija, a commenter on the Livejournal community 50 Books POC, told Requires Hate (as Winterfox) that it was inappropriate to call Chinese-American author Cindy Pon a “stupid fuck.” Rachelmanija added that the standards at 50 Books POC were different from those of 4chan (a community where anything goes). In response, Requires Hate accused rachelmanija of being racist and implying that Winterfox was a Nazi, because 4chan was a cesspit of Nazis and white supremacists.
Often RHB will then begin to pursue the person she has decided to target, issuing multiple vituperative posts or death threats on blogs they frequent, and/or on Twitter, and/or in the online forum where she first targeted them. She then erases—at the very least—the most violent and abusive comments and posts, leaving the target reeling but with no visible proof that the threat occurred. Often, she deletes everything. Therefore not many screencaps of her worst abuses exist.
However, I received numerous screencaps that had been recovered by her targets or witnesses, and I was also able to obtain copies of a portion of RHB’s now-deleted content via The Wayback Machine. In addition, I received independent emails from both targets and witnesses confirming the substance of the death, rape, maiming, and dismemberment threats RHB has been accused of.

I believe reviews are sacrosanct. However, I believe stalking and threats are not.
Much like Kathleen Hale, Requires Hate is a case where she was doing the stalking, then ironically accusing the other party of doing so.
As Mixon documents, her targets have been largely of color and women, two groups that are already under-represented.
Therefore, as far as award consideration goes, Benjanun Sriduangkaew unfortunately goes in the Sin Bin along with a handful of others. I won’t nominate for awards, and the Sin Binners will be the last I read for award consideration (and not just in that category; on the entire ballot). I still believe the work stands alone, so if I genuinely think it ranks first, that’s where I’ll vote it. That’s never happened so far, though.

Our genre has always had a soft spot for sharp-tongued souls. The person who speaks embarrassing truths has an honored—if discomfiting—place at the dinner table, in our SFF Island of Misfit Toys.

I honor such people (and in fact am one of them)—but only up to a point.

Update

At one point, I read a post about the Requires Hate controversy from the perspective of a writer or reader of color, and it was interesting, and, after reading it, I felt guilty linking to the above without also amplifying a voice of color’s perspective on it. I was traveling at the time, and I appear not to have saved the link. (I remember it being tweeted by Naamen Tilahun, but attempts to look at his Twitter stream don’t go back far enough.)
However, I found this thoughtful post from K. Tempest Bradford, so I’m linking to that, as it brings up one of the points I’d been feeling guilty about with respect to this specific controversy.
In general, I have not been receipt gathering. I value the people who do that work, it’s just not something I think to do. But I shouldn’t have piled on without digging deeper, either. I try to do my own research, and when I can’t, I try to limit my commentary to the part of a controversy I actually understand. This is a case where I exceeded that. I think it’s valuable for me to preserve what I originally wrote, but also valuable for me to fess up.

Read More

I had some expectations about what the reply would consist of.
tl;dr version: I’m disappointed.

My Take on It

1. 10/24 (Friday) EC’s lawyer files a motion to punt (remand) the case back to state court relying on Rose v. Giamatti.
2. The same day, DA’s lawyer shoots an email to EC’s saying, “I’m unsure if you’ve reviewed the case you primarily rely upon, but I believe that Rose v. Giamatti says the exact opposite of what you’ve raised it for.” In other words, Randazza said, basically: “Heads up: brain fart?” Which offered the opportunity for Mastrantonio to fix it.
3. Not hearing anything back, DA’s lawyer files an opposition on Sunday the 26th, including the email from #2. Which was included to demonstrate several points made, not just that one.
4. On Monday, 10/27, the judge gave EC/JJ a week to file a response. No evidence the judge had read the underlying paperwork, but it decreases his odds of getting it punted to a higher court if he allows time for Plaintiff to clarify.
5. EC/JJ filed their response on the 31st. Halloween. Trick or treat. It used the same single case citation.

It’s unusual for a motion to rely on a single case cite, and unusual for both sides to rely on the same single cite.
What I expected EC’s lawyer to do: find some other case cites that also cited Rose v. Giamatti and use some more of his skills to strengthen his narrative. ::cough::
Courtney’s analyzed the underlying issues, and I agree. Especially this part:

I lay this all out because EC’s reply confuses the merits of the controversy with the merits of a temporary restraining order. In order to evaluate the reply, you need to understand that first, these are two separate things, and second, that no lawyer–indeed, no halfway decent law student–should confuse the two.

Another Issue Here

In the footnote:

Plaintiffs indicated that because the facts on the ground had changed, the urgency associated with a temporary restraining order had become attenuated and that a consolidation of the hearing with the final hearing on the merits under Rule 65(a)(2) would avoid 2 hearings, 2 trips for defense counsel and his client, 2 briefings, and twice the use of the Court’s time and resources.

I just mention the following and allow you to draw your own conclusions….

1. Randazza is a noted first amendment attorney.
2. EC files for a TRO/Preliminary injunction against Dear Author to prevent further postings about EC from DA.
3. Case law about prior restraint is heavy first amendment case law.
4. First amendment cases are best heard in federal court (though I’m not sure they’re necessarily federal questions).
5. EC/JJ wants a remand to state court.
6. Suddenly the TRO’s urgency has “become attenuated.”

::cough::
Note that the case wasn’t removed because of federal questions, though. It was removed for diversity. Here’s a bit from the UScourts.gov site that explains that (emphasis mine):

A case also may be filed in federal court based on the “diversity of citizenship” of the litigants, such as between citizens of different states, or between United States citizens and those of another country. To ensure fairness to the out-of-state litigant, the Constitution provides that such cases may be heard in a federal court. An important limit to diversity jurisdiction is that only cases involving more than $75,000 in potential damages may be filed in a federal court. Claims below that amount may only be pursued in state court. Moreover, any diversity jurisdiction case, regardless of the amount of money involved, may be brought in a state court rather than a federal court.

This is one case where the defense gets to pick the court, though, because it’s about fairness to them.

Let’s Dig Into Some Older Cases

I wanted to look and see if there were other similar remand cases the federal judge had decided on. “Remand” is a hard word to search on because most federal judges of any tenure have had cases go up on appeal, then be remanded back to their original (federal) court to resume the remainder of the case.
This, however, was a different kind of remand: a case originally filed in state court being removed to federal, then an opposition filed.

22 Exchange LLC v. Exchange Street Associates LLC

Ruling here. Remand was allowed. (Remand ruling took 7 days; attorney’s fees were allowed.)
This situation does not apply in the EC/DA case.
In the case ruled on, a Delaware Plaintiff sued an Ohio Defendant, and the Defendant removed to federal. However, one of the situations where you can’t remove to federal for diversity jurisdiction is if you’re sued in your home state. It’s called the forum defendant rule.
In other words, if Dear Author/Jane Litte had been sued in Iowa where they are based, they wouldn’t have been able to remove to federal. However, that didn’t happen, and thus the underlying reason Exchange was remanded isn’t applicable here.
Similarly, IndyMac Bank, F.S.B. v. Harrison, Rivard, Zimmerman & Bennett, Chartered et al is inapplicable.

Electrical Enlightenment, Inc. v. Lallemand et al

Electrical Enlightenment, Inc. v. Lallemand et al remanded for lack of subject matter jurisdiction. Judge says it best:

Although Defendants attempt to couch the terminology used in the Complaint to assert a federal cause of action under copyright law in paragraphs 13-15, the mere use of the terms “copying Plaintiff’s commercial speech” does not make a copyright claim out of a breach of contract action.

(Remand ruling took over 2 months; attorney’s fees were allowed.)

Lasher v. Bank of America

Ruling here. (Remand ruling took just over a month, but denied attorney’s fees.)
Essentially: lack of a federal question, so lack of subject matter jurisdiction.

In addition, the resolution of the federal question will not be dispositive of the case. First, numerous pure state law claims have been plead by Plaintiffs. Furthermore, even the third cause of action will not be resolved by resolution of the federal law.

Two Others

This case there was a remand mentioned, but I don’t see a response to it on the docket.
Last but not least, this docket has a boatload of people and I don’t want to have to sort it out.
So the prior history I could find doesn’t really shed any light, unfortunately.

So When?

I’m unclear if a remand is considered a dispository motion—or not. Dispository (or dispositive) motions are ones that dispose of some aspect of a case: a motion for summary judgment, for example.
Since a remand ends the case with respect to that court, I’m not sure if it’s considered dispositive. It’s simply a civil procedure point I don’t know.
Anyhow, local rules say dispository motions need rulings within 30 days and other motions within 60. So it could be a while.
Or not.

Read More

Unique, distinctive, and humorous greeting cards sure to please. Now available from my Redbubble store. I’ve had greeting card products available for a while, but now I’ve got some items that are only available in greeting cards, including a few holiday cards.

I Am Not a Turkey

Whimsical fall holiday card. (link)

Tree? What Tree?

Whimsical Christmas or Yule card. Even alien cats get into trouble with trees. (link)

May Your New Year Be Cage Free

Happy New Year! May it be a good one. (link)
Honestly? I think that one’s my favorite.

Missed a Present? I’ve Got You Covered

This one’s in both a Christmas-y variant and a more generic variant.

Link for the Christmas-y card.

Link for the generic card.

Congratulations on the New Addition

Great card for a family with a new baby. Works for a boy or a girl, and the birds aren’t gender specific. (link)
Designed for my favorite actor and his wife and their new baby.

More Cards

I have some great back catalog too! Click images to view the card. Most of these also have other products if you’re interested.

Free Speech Is Best Served #notchilled

This is of limited interest, and the poster’s not actually this big, but the mockup looks awesome so grant me some artistic license here.

Credits

Believe it or not, the new card graphic elements are (except for the tree bits) all fonts.

1. York Handwriting by Thinkdust.
2. Monstrinhos by Pinstassilgo Prints.
3. Card-o-Mat Buddy Birds, also by Pintassilgo Prints.

Read More

Happy Halloween!
As a kid, my favorite holiday. Still my favorite.

Last Day on Cat Grant’s GoFundMe to Get Her Ellora’s Cave Rights Back

I had the awesome privilege of meeting Cat Grant in person last weekend when I was in her area. We talked for several hours! She’s trying to buy the rights back to her three books still with EC. GoFundMe link.

All Treats for Design Cuts’ Birthday

I’ve spoken about my great love of Design Cuts ever since I discovered them earlier this year. They are re-running twenty-two of their prior deals.
The font used in the image above is Brush Up from Pintassilgo Prints, and is from the Monster Creative Font Bundle.
If I had to pick three of the above….

1. The All Inclusive Design Bundle.
2. Monster Creative Font Bundle. or any font bundle.
3. Any 2 Lil Owls bundle.

This will be running for another week and a half in case you are just overwhelmed with choice. Hell, I was, and I already had 14 of the bundles being re-run. I now, uh, have 17 of them.

A Plug for DealJumbo

Peter of Cruzine Design also runs DealJumbo.com, where he pulls together a lot of great deals, often from Creative Market shops.
Cruzine has some really complicated vintage-style logos and frames that I can’t ever see myself using but want to hoarde all the same. Here’s one of the freebies where you can see what I mean.
The deals DealJumbo runs, though, are far broader in appeal. The “5in1” deals are from five different designers, which is a great concept.
Here are a few active deals I’ve bought:

• Only Best Sellers Mega Bundle vol. 3
  This is so awesome, I don’t even know where to begin.
• 5in1 Mega Bundle v.6
  Frankly, the last thing I need is more logos, badges, and the like. I have tons, but none of them are as interesting as this set. Check out the secret society badges!
• Decorative Vendor Bundle
  I love the mid-century stuff in particular.

The monster in the box up top came from one of DealJumbo’s freebies, but it appears to be one only available to mailing list subscribers.

But, But, I Don’t Know How to Do Design Stuff

Another treat!
Look, I get it. I was a Photoshop idiot for years even after taking a couple of classes. These days, I consider myself intermediate in Photoshop skill.
Dustin Lee at Retro Supply started making amazing videos to show off how to use his products. Then he started adding extra videos when you bought his stuff, and they were useful enough that, well, hell with whether or not I need/want the product, I wanna see the videos!
He’s just opened Retro Academy which will feature tutorial videos.

And Now for Something Really Scary: Scientology

Last year, the EEOC sued Dynamic Medical Services for Religious Discrimination.

According to the EEOC’s suit, the company required Norma Rodriguez, Maykel Ruz, Rommy Sanchez, Yanileydis Capote and other employees to spend at least half their work days in courses that involved Scientology religious practices, such as screaming at ashtrays or staring at someone for eight hours without moving. The company also instructed employees to attend courses at the Church of Scientology. Additionally, the company required Sanchez to undergo an “audit” by connecting herself to an “E-meter,” which Scientologists believe is a religious artifact, and required her to undergo “purification” treatment at the Church of Scientology. According to the EEOC’s suit, employees repeatedly asked not to attend the courses but were told it was a requirement of the job. In the cases of Rodriguez and Sanchez, when they refused to participate in Scientology religious practices and/or did not conform to Scientology religious beliefs, they were terminated.

It was later settled for $170,000.
I saw this a lot from the Scientology side of the fence when I was on staff (except for the terminations).
For many years, Scientology’s big clients have been chiropractors, dentists, and related non-mainstream medical practices. There are Scientology-based consulting practices, such as Sterling Management Systems, whose entire goal it is to get everyone in an office “trained” in “Scientology tech.” And audited. And Clear.
Whether they want to be or not.
Most weeks, it was more than half the income of the local Scientology church I worked at.
At the time, I thought it was great. Now, of course, I want to wash all the ick off my psyche.

Read More

Remember in June when I participated in The Great Namaste? An attempt to break the Guinness World Record for the number of people simultaneously doing yoga.

We Did It!

I got this funny email from organizer Tyler Tervooren:

Well, for those last four months, the record was only technically broken. We’ve been waiting… and waiting… and waiting for them to give us the official nod. Kind of like when you’re really excited to get someone’s phone number, but you can’t get a hold of them so you leave a message saying, “Uh, it was really nice to meet you and I think you’re super cool so, um… call me back?” And then you sit and wonder if you had bad breath or crazy eyes or something as each week passes and they don’t call.
And that’s how it felt with Guinness. UNTIL TODAY!

The only thing that’s missing at this point is they haven’t updated the listing on the website yet, which is kind of like when you start dating someone new and realize they still talk to their ex on Facebook. We’re trying not to be jealous, though. We’re certain it will be updated soon.

And Here I Am

In the detail of the above photo….

Read More

So, remember last month when I said I was at 97 countries after an ill-advised tromping through the Vatican museums?
We’re heading to the Caribbean on Friday, and I’ll cross the 100-country mark.
A few years ago, I listed nine hotels from my “hotel envy” list. I used to work in the luxury hotel industry, so I’ve seen and heard about a ton of beautiful hotels, but these were particular standouts for me.
This will be my third visit from that list of nine. (One, Kona Village, has since closed for good. Palazzo Sasso is now called Palazzo Avino.)

Conrad Maldives

I was extremely lucky to be able to book a three-night stay on Hilton points before the devaluation. There’s no question that this is the nicest place I’ve ever stayed.
The Maldives consist of many thousands of coral atolls in the Indian Ocean. Because of that, and the fragility of the atoll reefs, much of the inter-country travel is via seaplane.

Maldivian Air Taxi Air Safety Card:

Ithaa Restaurant. You can dine underwater! Yeah, I took food photos too (and dinner was fabulous), but that’s not why you go.

Some other photos:

Hilton Bora Bora

Bora Bora is far more mountainous, a large atoll surrounding an island with a central volcanic plug.

Within the atoll, quite a few resorts have overwater bungalows, including the Hilton. Here’s a view from ours:


And one of my favorite pictures I’ve taken of all time. It’s also available as a print and on other products like t-shirts, coffee mugs, shower curtains and stuff.

Read More

Seasonal and timely. As usual, my holiday profile name is Dire Red Omen.
Update: I calmed this down because it was driving me crazy.

And the older versions….

v 1.0

v 2.0

v 3.0

Read More

So you’d figured out how to sell your book on iBooks. Now you’ve got a different problem: what if you need to remove your book from sale?
There’s been an assertion that this is a difficult thing to do.
Not so much.

With iBooks, You Publish Via an App

I use iTunesProducer to package and upload my book and make it available for sale. It makes a manifest file around the EPUB that includes product and sales information, then saves it in your iTunes Playlists. (Yet another WTF? from Apple, albeit a minor one.)
However, so far as I can tell, you can’t remove it from sale that way.
There’s a reason for this, I suspect. Since someone who’s purchased the book has the right to redownload their purchases, that means that Apple’s system still need to keep that record of you having published it even if you are no longer the publisher of record for new sales.

Use iTunesConnect to Stop Selling

Here’s the https link.
Log in, and you’ll see this home screen. If you haven’t logged in in a while, it has changed.

Click on My Books. A publisher with a lot of books will need to use the search page. I, uh, don’t.

Click on the relevant book and you’ll get the book page.

Click on the Rights and Pricing and you’ll get the sales territory management page.
Click the Select All button above the pricing matrix.
Select No next to Cleared for Sale on the top form.

Scroll to the bottom of the page and click Continue.

There’s probably another step or two, but I don’t happen to want to take my own iBooks items off sale for this experiment.
Still, it’s just not that difficult.

Read More

Substantial truth can be tricksy. Here’s a DMLP post with a few examples.
Two of those examples where the statements were ruled substantially true:

A statement that a boxer tested positive for cocaine, when actually he had tested positive for marijuana. See Cobb v. Time Inc. 24 Media L. Rep. 585 (M.D. Tenn 1995).
A statement that a man was charged with sexual assault, when actually he had only been arrested but not arraigned. See Rouch v. Enquirer & News of Battle Creek, 440 Mich. 238 (1992).

Look, I haven’t read up on the case law, but the above two examples should demonstrate that “substantial truth” isn’t cut and dried.

Hypothetically Speaking

Let’s say the claim in question is about “a set of authors” and whether or not they’ve been paid in a timely manner. Let’s say there are more than 500 authors, each of which has one or more books.
Now, the person believing they’ve all been paid may in fact only have been double-checking the highest earners.
However, let’s say the claims are true for three authors:
a = {Fred, George, Mark}
That still means one needs to sift through an unknown large portion of the data set before one determines that it’s true for “a set” of them.

And Now an Intermission

I’m done with the above hypothetical.
I have no personal information about the actual facts of the Ellora’s Cave case. However, I’d like to look at some back-of-the-envelope calculations.

How Big Is the EC Data Set?

Let’s go with the following assumptions:

1. 934 authors (last I counted). Let’s round down to 900.
2. Amazon gives me 6,767 items when I search for “Ellora’s Cave.” Let’s assume 4,500. Ergo, an author has an average of 5 titles, including paperback editions.
3. Each book sells, per month, in an average of 5 stores from: EC’s own site, ARe, Kindle, Nook, Kobo, Google, iBooks, foreign markets for same, and any paperback vendors.
4. Need to look back to when the accounting system changed last year, so 10 months of data at present.
5. Each line item has seven pieces of data per month per author (per Cat Grant’s statements). The 7 pieces of data are: ISBN, title, format, store, amount received per unit, qty sold, total received (calculated, so not actually a separate piece of data), royalty %, royalty paid (also calculated).

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.

Another Aspect of Substantial Truth

In a case where “a set of authors” may not have received timely payments, royalty payments received by the publisher not corresponding with line items paid to authors could potentially also be a source of substantial truth.
Therefore, one would also need to audit amounts received from, say, Amazon, and amounts paid out in royalty checks that month, and determine that the amounts were equal. (Especially when others have said they’ve seen no Amazon drops during the same period for similar non-EC books.)
There are also around 9,000 checks to sort out.

• When were they written?
• When were they mailed?
• When were they cashed?
• When did they clear the bank?
• Are any missing? Either not paid or not cashed?
• If they’re missing, were they actually cut?

In theory, all that information is already entered and double-checked and could be provided to the defense at a moment’s notice.

The Question that Started This Post

@deirdresm Law Q: Are EC actions only relevant to the case up until the time it was filed? Recent payment timing immaterial? #notchilled

— Susan Garbanzo (@Soenda) October 27, 2014

It’s a good question. It doesn’t change the absolute truth of what was said on the day it was said, no.
But if events post-filing help show substantial truth, then probably they’re relevant.

@Soenda I haven’t read the case law; I can only guess. My guess: similar actions after filing help substantive truth claim. #notchilled

— Deirdre Saoirse Moen (@deirdresm) October 27, 2014

My Intuition

This case, if it gets all the way to a jury trial, will be far, far more expensive to litigate than other people have expected because the potentially triable matters of fact involve large data sets.
It’s my understanding that the burden of proof is on the plaintiff to show substantive falsity. Meaning: Ellora’s Cave and the mysteriously joined Jasmine Jade Enterprises need to demonstrate that.
Can they sample the data?
I don’t see how they can prove that “a set of authors” is defamatory without the full data being examined. “A set of authors” doesn’t need to be a large set.
My intuition, given the lagging of checks mailed weeks after the check date, all the reports of no answer for months when authors asked about royalty checks, is that that aspect of the DA post, at least, was substantively true.
Consider, for example, how small the two examples at the top are in terms of data. A single arrest. A single drug test, and possibly one or more followups. But not 1.57 million of them.
Completely different animal, litigation-wise.

Read More

First: New EC-themed Art!

See above.
I’ve been trying to make a habit of including art with posts so there’s always a featured image. It’s a tough job. Broken ankh render from The Hairy Man.

Ellora’s Cave Lost Its COO?

Behold the current LinkedIn profile of Susan Edwards, who was Ellora’s Cave’s COO.
Note that it lists “Writer and Editor” as a job from “1980 – Present”, but Ellora’s Cave from “January 2005 – October 2014”, meaning she’s no longer there.

Detail of the Ellora’s Cave entry:

Now Dear Author tweeted this last month:

Re Ellora’s Cave: Whitney Mihalik, the managing editor, and Susan Edwards, the chief operating officer, have both resigned.

— DearAuthor (@dearauthor) September 15, 2014

…and…

EC trying to retain Susan Edwards, COO, who previously indicated she was leaving.

— DearAuthor (@dearauthor) September 23, 2014

But this is the first I’ve heard that it was externally verifiable.

Ellora’s Cave Allegedly Selling Titles It Doesn’t Have the Rights To

Angelia Sparrow posted this morning.

My mail today. Why does a check cut on September 30 have an October 25 postmark?
Why are books that I have had the rights returned still on sale?

“Eight Days Ablaze” was returned in Feb. I am not getting paid for it. Why is it still available at Amazon, iTunes, GooglePlay, and Ellora’s Site itself?

“Eight Days Ablaze” is apparently still theirs. I checked my reversion letters, and it is not mentioned. “For Love of Etarin” and “Raising the Dead” however, HAVE reverted.
“For Love of Etarin” is the same way. And yet, it still available on GooglePlay.
Glad Hands and Privateer’s Treasure are still up on Amazon, And the rights reverted back August 15.

I can verify that it’s still on sale, but obviously I have no personal notice of whether or not the rights are reverted. I’ll just point authors to a resource out there for you. If your rights are reverted, then a DMCA takedown notice to the vendor is an appropriate—and probably the fastest—action.
It doesn’t give you the correct royalties for any amounts that were due you, though. That has to be addressed separately. Unfortunately.
Previous post of interest from Angelia.
I previously talked about Shoshanna Evers’s related story of books being sold after reversion here.
Also, Cat Grant shows her May 2014 royalty statement, received in September, where she states that she was paid for a Nook ebook on a title that, per her, reverted in November 2013.
B&N/Nook pays 60 days after the end of the month. So, if a sale took place in November while EC still had the rights, it should have been in the royalty statement for February or maybe March. May is unreasonable.
Again, I can see what the allegations are, but I don’t have personal knowledge of the reversion, just taking the claims at face value. If three authors are correct, how many other authors has EC been selling the works of without the rights to?

The No-Frills EC v. DA Lawsuit Page

Yesterday, out of frustration at the lawsuit documents and the order mine weren’t in, I created this simple page that emulates the federal court docket.
For some exhibits, there’s a short summary. Each, where applicable, is color-coded based on the lawsuit “thread” as Courtney defined them. And, if there are blog posts relating to them, they’re listed below the docket item.
It’s a very lightweight page: no images, no Javascript, and very very little CSS.

Lawsuit Update

Yesterday, defense filed their opposition to Ellora’s Cave’s Motion to Remand (from federal court to state court). Courtney Milan analyzes.
Particularly interesting footnote:

On 7 October, an email was sent to at least one of Ms. Lampe’s supervisors. On 14 October that same email was forwarded to the entire department within which Ms. Lampe works. This is consistent with prior actions by directors of Ellora’s Cave. Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case. Therefore, sending this subpoena on short notice was of great importance. Since the Defense addressed this with Plaintiff’s counsel, these actions have waned.

Wow. Just. Wow.
Let me pull this one line out and bold it.

Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case.

That is not OK.
From the opposition brief itself:

All parties agreed that the matter required needed additional time, and therefore the parties stipulated to a hearing to be held on 27 October. In the intervening period, counsel for the Defense was able to fully evaluate the case, and on 17 October it became 100% clear that removal was appropriate.

I’m just going to put those two together and back away slowly.

What’s Next?

Jane Litte’s answer is expected soon. The court granted the motion to continue on the TRO and gave EC/JJ 7 days to file a response to defense’s objection about the removal. In that way, the removal issue is settled before the TRO hearing, which does make sense.

Read More

I’m a numbers person, and I like charts and graphs and other ways to reassure myself that things are Getting Done.
I check at the beginning of each month to make sure my titles are up where they’re supposed to be and to record the sales.
It would take more time if I had more books. This is the summary over time; one title dates back to 2011 and the other was published this year. I hear a lot of people wanting to sell on Amazon only. In my case, that would mean cutting 2/3 of my revenue.
I also have a spreadsheet that tracks each title month-by-month, with a different tab for each year.

Read More

Part of EC’s problem is, and has been, distribution.
I’ve done some spot checks on EC authors and found that they aren’t consistently in all possible stores. For many authors, there are enough titles that it can be difficult to demonstrate the issue, but in this case, I’ve picked very small cases that are easier to see.
When talking on twitter about Axl and Taylor, I happened to search the iBooks store instead of my library. My recollection was that I’d bought one of Taylor’s books back when I was taking notes and writing research questions for an ex-stripper character I wanted to write. I’d never read the book (as I’m working on a different book right now), so I was trying to find it in amongst the other billion books I’ve bought.
I found one book by Taylor in the store. My recollection was that he’d written two. I was wrong; he’s written three. Well, co-authored three. I filed that away, then thought I’d use his case as symptomatic of a larger problem that EC has with its book distribution.

	Take It Off!	Take It Off! (Again)	Top Guns
Ellora’s Cave site	$5.20	$5.20	$5.95
All Romance Ebooks	—	$6.50	$7.50 1
Amazon	$5.39	$5.39	$5.78
Apple iBooks	$5.99	—	$7.99 2
B&N Nook	$5.99	$5.99	$6.99
Kobo	$5.39	$5.39	$6.19

Huh.
What’s really interesting about this is that Apple reports that the seller for Taylor’s book on iBooks is All Romance Ebooks, which does not list that title.

EC’s Own Site

Two of these are paperbacks. Three e-books.

All Romance Ebooks

Amazon

Note that one can cleverly add the publisher in the search.

Apple iBooks

B&N Nook

Kobo

Let’s Look at Cat Grant’s Titles

You may recall that Cat Grant is trying to buy back her rights from Ellora’s Cave to the three titles she has with them (The First Real Thing, Appearing Nightly, and A Fool for You).
EC’s site: all three
Amazon: all three (but only two show up with Ellora’s Cave in the search)
Apple: no Appearing Nightly
ARe: all three
B&N Nook: all three
Kobo: all three, ranked dead last when sorted by “bestsellers”

Then There Are Books Getting Filtered

Like this tale from Lissa Matthews:

I have one book filtered at Amazon and I don’t even have a year’s worth of sales numbers on it, but I can tell you it definitely meets the ‘sells less than 100 copies in a calendar year’… No one even knows the book exists unless I tell them. And it’s filtered because I didn’t specify No Nudity for the cover. Okay, I took blame for that, but how was I supposed to know I had to tell Ellora’s Cave what their distributors would and wouldn’t allow on covers in order for them to be found by readers and not stashed so deep into the abyss? I had never had to specify that before and believe you me, I learned that lesson. Because the next and final book that I submitted specified on the cover art form NO NUDITY!

The cover in question features a nude woman facing away, held by a man in jeans. I think it may be the side boob more than the nudity, though.

Shoshanna Evers’s Story

I’ve had rights reverted on an EC book since Dec, but it’s still for sale on @iBooks. *sigh* On hold w/iBooks now. #notchilled

— Shoshanna Evers (@ShoshannaEvers) October 24, 2014

@hmweinerman @deirdresm I’m not even looking for any money from EC. I just want my last book back from them. They’ve put it on sale for 99c.

— Shoshanna Evers (@ShoshannaEvers) October 24, 2014

So—EC’s still selling a book they haven’t had the rights to since December 2013.

Moral of the Story

You can’t just “set and forget” books. Database issues occur. There are nuances of data structures that mean not every vendor will represent titles in the same way.
It’s got to be someone’s job to comb through and make sure that every single book is at every single vendor. And re-check it periodically.
Paul Krugman wrote this piece about Amazon, which is worth it just to comment only on this one bit:

Book sales depend crucially on buzz and word of mouth (which is why authors are often sent on grueling book tours); you buy a book because you’ve heard about it, because other people are reading it, because it’s a topic of conversation, because it’s made the best-seller list. And what Amazon possesses is the power to kill the buzz. It’s definitely possible, with some extra effort, to buy a book you’ve heard about even if Amazon doesn’t carry it — but if Amazon doesn’t carry that book, you’re much less likely to hear about it in the first place.

Well, that’s true so far as it goes. Personally, I only look at Amazon if my first-source vendors don’t have it. When I worked at an indie bookstore, I wound up making a habit of knowing what books were featured on NPR, as those were the titles more people asked about than any other.
For me, I’m usually searching on a web site for books, so if that search doesn’t find the books in question, that’s what kills the buzz.

Footnotes

¹ The book is listed only under Justin Whitfield even though there are three named authors on the cover. I don’t know if this is generally a problem with multi-author titles at ARe as I don’t shop there much.
² Listed only under Justin Whitfield in iBooks, too, but ARe as a vendor may explain that.

Read More

Courtney Milan has the blog post and the exhibits.
Let’s put it this way: birther Orly Taitz is famous for her remand-back-to-state-court motions. Not someone to emulate.
This is an aspect of federal procedure I don’t know a lot about, but my understanding is that removal is automatic, and that remanding is for related courts (e.g., an appeals court can, and often does, remand a case back to a lower court). In this case, however, I’m not sure a federal court has the legal right to remand to state court.
As Courtney Milan posts:

What to expect next: DA/Jane will almost certainly file a memorandum opposing a remand. The court will decide if it wants to hold a hearing on this or simply decide on its own, and we should get a decision from the court. That decision will almost certainly seal off this thread once and for all, and we can move on to the many, many other issues.uu

One Note on the Answer

Courtney is waiting for Jane Litte’s answer before posting commentary on both answers. She says (in the post linked above):

The reason I have not done this yet is that the answer is from Dear Author alone, and not from Jane in her personal capacity. Some things Jane will say in her answer will be duplicative. Some things she says will, I suspect, not be (which is why they didn’t file together).

I think part of the reason to file the answers separately is to make clear that Dear Author, LLC and Jane Litte are legally separate entities.

Read More