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.

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 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.

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.

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.

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.

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.

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.

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:

@ZenobiaRenquist I got February royalties October 9(Last week) @TymberDalton @deirdresm

— Kelly Jamieson (@KellyJamieson) October 16, 2015

And I just got an EC check for FEBRUARY royalties. That's *definitely* more than 3 months. #notchilled

— Ella Drake (@Lori_Ella) October 11, 2015

@TymberDalton @lynneconnolly someone posted on FB they just received a check from EC DATED February. #notchilled

— Trista Ann Michaels (@trista_michaels) October 15, 2015

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.

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.

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.

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.

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.

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.

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.

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.

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

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:

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.

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.

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.


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.

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.

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.

(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:

@Retireme15 @courtneymilan To be clear, while I have a low opinion on Randazza's ethics, I think as an attorney he is…

— Fight © Trolls (@fightcopytrolls) September 3, 2015

@Retireme15 @courtneymilan …very capable of handling this frivolous case (and @ellorascave deserves to lose miserably). #notchilled

— Fight © Trolls (@fightcopytrolls) September 3, 2015

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