It’s been almost six weeks since I first posted it, but the Ellora’s Cave Author Exodus Support Thread now includes 29 authors, several editors, and a cover artist.
Each of them have spoken out in some context about Ellora’s Cave.
If you’re looking for books to get you through the holidays (or to get other people for the holidays), they could use your support.

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This post discusses phrasing of the initial lawsuit filed by Ellora’s Cave and Jasmine Jade Enterprises against Dear Author and DA columnist Jane Litte. In Courtney Milan’s thread system, this is Thread A.

The Tense Thing

My most frequently overlooked problem when critiquing other people’s work is tense wobbles. So, while I noticed the change of scope in this section I’m going to quote, I’d missed some potential implications of the tense shift.
I was talking about the case with a friend of mine, and he said:

I notice they’re playing silly buggers with the tenses.
“have not” and “are”
and they don’t dispute that in fact they hadn’t been paid in six months.

Here are two of Jane’s allegations in the Curious article:

There is a set of authors who have not received royalty payments in over six months. EC has blamed this repeatedly on a new accounting system installed in December of 2013.
[…]
The total sum of unpaid royalties, editor fees, cover artist fees is in the several thousands, perhaps approaching six figures.

In EC/JJ’s lawsuit, here’s what they allege:

[…] Such false statements include:
[…]
That the Authors have not received royalty payments in over six months when in fact they are being paid.
[…]
That unpaid royalties, editor fees, and cover artist fees amount to several thousands of dollars perhaps approaching six figures when they do not.

In my Proving Substantial Truth post, I’d talked about the size of the data set in proving that “a set of” is untrue.
But I hadn’t talked about the fact that what EC claimed was defamatory in the lawsuit paperwork wasn’t actually what Jane Litte wrote. Courtney Milan talked about this some in the interview she did on the SBTB podcast.

Hypothetically Speaking

Let’s say the following are true:

1. An article, published mid-September, states “a set of authors who have not received royalty payments in over six months.” Past tense. There are over 500 authors, but the article’s author knows the claims are true for at least three. a = {Fred, George, Mark}
2. After the article was written, the publisher in question writes checks for all its authors due royalties for a given accounting month. Let’s say the royalties being paid are for May, the checks are dated August 31, and they are mailed in late September.
3. After the checks are mailed, the publisher in question files a defamation lawsuit abut the blog post. In said lawsuit, the publisher claims, “That the contract authors (Authors) have not received royalty payments in over six months when in fact they are being paid.”
4. Note that there’s no claim that said Authors are fully paid. Or that they had been being paid. In fact, it’s present continuous tense, making it sound like the checks are being written even as the paperwork for the lawsuit is being typed. (Lest one think I’m being harsh on this point, remember that we’re discussing a publisher. Tenses and nuance are their core competency.)
5. After the lawsuit is filed, Fred, George, and Mark each receive a check for the most recent month’s royalties, but this does not change the fact that the language in the blog post was correct as of the date it was published. They are still owed back payments, however.

So, hypothetically speaking, it’s entirely possible that there was a set of authors who hadn’t received royalty payments in over six months, and for whom between the time of that post and the lawsuit being filed, checks had been cut for at least some payment, making the present-continuous-tense statement also true. (It’s probably also not necessary for every single author to be paid to make the present-continuous-tense statement true, either.)
Yes, well, that’s all well and good, but there was a second part to the article’s claim, and how could that work? Here’s a hypothetical.
EC claimed: “That unpaid royalties, editor fees, and cover artist fees amount to several thousands of dollars perhaps approaching six figures when they do not.”
This really hinges, I think, on nitpicking two phrases: “several thousands” and “perhaps approaching six figures.”
I’ll just throw this out there: if the amount owing is known to be in excess of $100,000….
No, I can’t finish that sentence. I can’t rationalize the verbiage.
Remember, “unpaid royalties” as of mid-September includes not only May’s royalties that were reportedly received at the end of September or early October, but also monies received—for hundreds of authors—for June, July, August, and so far in September. Not just amounts that may be past due.
When one looks at, say, the amount Lolita Lopez didn’t receive in December 2013 that was on her 1099 (tl;dr: $13,354.79), and realize that there are (or were) several big-name EC authors who were making that kind of money monthly, royalty amounts owing in excess of $100,000 doesn’t seem that big a stretch for 4-1/2 months, even if the dramatic drop in Amazon sales were true.
Even without including editors and cover artists.
However, claiming that someone owes less than they actually do isn’t defamatory.
I have no personal information about the actual facts of the Ellora’s Cave case, so I have no information about the veracity of my hypotheticals.

So…?

The point of the above: if what Jane Litte wrote weren’t true, why not file a lawsuit claiming that specific language was untrue?
Why bother using different language in the filing when Jane’s post is right there to copy/paste from?
I’ll leave you to ponder that and end with a throwback moment.

Ellora’s Cave Legal Throwback: Two. Thousand. Three.

Over the past couple of months, I’ve read a great deal of the documents involved in the Brashear case where EC/JJ were defendants.
As a fascinating aside, one of the items EC submitted in their answer and counterclaims was a snippy email by Brashear to complaints that payments were, once again, late. That was in October 2003.
It was in response to an email that said this (and then some):

Look, I KNOW you guys work hard at keeping everything together at EC and this new accounting system has been trouble — BUT, don’t promise that checks are going to be mailed on a certain date and then fail to deliver. OK? (This is not the first time this has happened.)

Two. Thousand. Three.

It’s Chestnut Season

In addition to the above, I note that we should seasonally switch from popcorn to chestnuts—especially given the subject matter.

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This isn’t about a convention, but I’m using a convention change as a launching point.
BayCon is going to be a three-day convention this next year rather than the four-day convention it has been in prior years. I heard about this through random pissing and moaning through facebook.
By “pissing and moaning,” I mean people who say things like it’s not what it used to be, yada yada yada.
Well, I’d hope not!
Anyhow, here’s my take when I hear that kind of thing:

1. You can only do X similar things Y times before the magic smoke stops working for you. How similar X events have to be to each other and how large a number Y needs to be are individual.
2. At that point, the right thing to do is something that isn’t quite so similar to X, whatever that happens to be for you.
3. There are always problems with {conventions, vacations, cruises, rocket launches, square dances, rodeos, church socials, bowling leagues}. The problems only start glaring when you’re at point #1.

I honestly had a blast at BayCon this year. Sure, some things I’d enjoyed in the past didn’t happen this year, but other new things did.
So, if you’re not having fun because something doesn’t seem fresh and new, go find something fresh and new to do. Maybe you can go back to X at some point. Maybe not. Maybe you need something similar to X, but not too similar.
There are a million billion things to do.
The world is a big place. Enjoy it.

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As of today, I’ve completed one of my travel life goals: to visit 100 countries and territories from the Traveler’s Century Club list. In short, you can’t join the club as a full member until you’ve been to 100.
Sure, they are liberal in what they count (their list totals 324 countries and territories, where the UN list is 193), but they encourage people to see far-flung places that are very different from the ruling government far away.
For what it’s worth, I’ve been to 65 UN member countries (plus the Vatican). Eventually, I’d like to get to 100 there, too, but that interests me less.
Here’s my list in alphabetical order:
Alaska * Aruba * Australia * Austria * Bahamas * Balearic Islands * Barbados * Belgium * Belize * Bermuda * Bulgaria * Canada * Canary Islands * Cayman Islands * Chile * Colombia * Corsica * Costa Rica * Crete * Denmark * Dubai * Easter Island * Egypt * El Salvador * England * Estonia * Faroe Islands * Finland * France * Germany * Gibraltar * Greece * Guam * Guatemala * Haiti * Hawaiian Islands * Honduras * Hong Kong * Iceland * India * Indonesia * Ionian Isles * Ireland * Isle of Man * Italy * Jamaica * Japan * Leeward Islands, French * Leeward Islands, Netherlands * Liechtenstein * Luxembourg * Macau * Madeira * Malaysia * Maldives * Marshall Islands * Martinique * Mexico * Micronesia * Montserrat * Morocco * Myanmar * Netherlands * New Zealand * Nicaragua * Northern Ireland * Norway * Panama * Pitcairn * Portugal * Puerto Rico * Romania * Russia * Sardinia * Scotland * Singapore * South Africa * South Korea * Spain * Sri Lanka * St. Barthélmy * St. Lucia * St. Maarten * St. Vincent & Dependencies * Sumatra, Indonesia * Sweden * Switzerland * Tahiti * Thailand * Trinidad & Tobago * Turkey in Asia * Turkey in Europe * Ukraine * United States * Vatican * Venezuela * Vietnam * Virgin Islands, British * Virgin Islands, US * Wales
On the TCC list, I have at least one visit in each region except Antarctica.
My 100th was Trinidad and Tobago. Here’s a picture from Charlotteville, Tobago, announcing a cricket match (click for full size):

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Riffing off Courtney Milan’s post here.
While I haven’t followed appellate cases on the Communications Decency Act § 230 the way Courtney has, the first thing I did after reading Dear Author’s answer was to read up on existing case law. Like Courtney, I didn’t see any that applied to something similar to the Dear Author situation.
As Courtney points out, most of the CDA § 230 cases involve larger companies completely unrelated, legally speaking, to the person who wrote the content in question at the heart of the suit.
Rick and I talked a lot about the implications, some before I wrote this post about DA’s answer, and some after it, but every time we talked about it, we agreed that, at its heart, the CDA does protect Dear Author LLC.
The fact of a separate legal person isn’t even an issue here.
For example, say you’ve let an author write a guest post on your own blog and you’re unincorporated. You get commenters too.
Is that still an interactive computer service?
Here’s the CDA definition again:

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

Yep, that still applies.
In reading the definitions, here are some examples:

• “Interactive computer service” – a blog
• “Information content provider” – the writer of a specific blog post (or a specific comment)
• “Access software provider” – WordPress or Blogspot or whomever

I said this before:

In other words, because Jane Litte, the pseudonymous author of the Curious post, is not Dear Author LLC, the LLC providing the Dear Author service offering the Curious post, Dear Author LLC is not liable for any statements Jane Litte made.

That’s true in this case (my opinion, not yet set in legal precedent afaik), but it shouldn’t actually matter that these are different legal persons.
If I wrote my own blogging software and someone wrote and posted a guest post, I as the publisher and software writer—but not the information content provider—should still be protected.

So What Does This Mean As Far As the Dear Author Case?

A legal case is about triable matters of fact and applying legal investigation methods (discovery) to determine those facts and settle what points of law apply to them.
At the point where the matters of fact are determined and it has become a simple matter of law, a party can move for summary judgment, moving to apply that matter of law to that set of facts. (And then the other party typically opposes with their own brief, and the judge rules, sometimes asking for a hearing first.)
Here’s a quote from a free legal dictionary.

Two criteria must be met before summary judgment may be properly granted: (1) there must be no genuine issues of material fact, and (2) the Movant must be entitled to judgment as a matter of law.

I believe this is a matter of law that’s clear about DA being entitled to judgment. After all, CDA § 230 states:

It is the policy of the United States—

1. to promote the continued development of the Internet and other interactive computer services and other interactive media;
2. to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

…and…

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Dear Author is not Jane Litte.
It doesn’t matter that this is a novel application of CDA § 230. That’s why you hire someone like Marc J. Randazza: because a great lawyer thinks outside the box of existing case law and looks to intents behind the laws.

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As you probably heard, the majority in the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) ruled against equal marriage.
The dissent is blistering. It starts on p. 43.
Here’s the opening:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.

And here’s the closing:

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

I’ve seen a few statements of no confidence in the majority opinion before, but none so thorough.
Wow.
One more paragraph, from p. 61 (close to the end):

Moreover, as it turns out, legalization of same-sex marriage in the “nineteen states and the District of Columbia” mentioned by the majority was not uniformly the result of popular vote or legislative enactment. Nine states now permit same-sex marriage because of judicial decisions, both state and federal: Massachusetts, Connecticut, Iowa, New Mexico, and Colorado (state supreme court decisions); New Jersey (state superior court decision not appealed by defendant); California (federal district court decision allowed to stand in ruling by United States Supreme Court); and Oregon and Pennsylvania (federal district court decisions not appealed by defendants). Despite the majority’s insistence that, as life-tenured judges, we should step aside and let the voters determine the future of the state constitutional provisions at issue here, those nine federal and state courts have seen no acceptable reason to do so. In addition, another 16 states have been or soon will be added to the list, by virtue of the Supreme Court’s denial of certiorari review in Kitchen, Bostick, and Baskin, and the Court’s order dissolving the stay in Latta. The result has been the issuance of hundreds—perhaps thousands—of marriage licenses in the wake of those orders. Moreover, the 35 states that are now positioned to recognize same- sex marriage are comparable to the 34 states that permitted interracial marriage when the Supreme Court decided Loving. If the majority in this case is waiting for a tipping point, it seems to have arrived.

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Answer PDF here.
Note that this is a paragraph-by-paragraph response to the original complaint, so you should have a copy handy to look at them side-by-side.
I also haven’t compared it to the Dear Author answer yet.
The full docket with color-coding and blog post links and PDF original docs links is here. Note that in my blog posts, I refer to Jane Litte by her Dear Author pen name, but the legal documents, including that docket, use her legal name.

Short Version

Nothing leaped out at me off the page.
Dear Author’s answer had the affirmative defense of immunity under the Communications Decency Act (CDA) § 230, and Jane’s doesn’t. This is expected.
Apart from that, a quick scan of the two answers shows that they’re substantially similar.

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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.

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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

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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.

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