Archive of posts with tag 'ellorascave'

May 2016: EC for Books: May Update

Ellora’s Cave has rebranded as EC for Books, so I’ll be using that in my headers from now on. I will keep the header graphic as it was, though. I’m torn about the rebranding for two reasons: often, a rebranding for a troubled company signals a new direction that only hastens its demise, especially in the tech world. On the flipside, the Ellora Caves are a sacred site in India, and it would be nice to let them have their google-fu back.

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• ellorascave

Jan 2016: Ellora's Cave: Docket Item 69 Now Available (Marc Randazza Was Right)

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

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• ellorascave

Jan 2016: Ellora's Cave: Some Laurann Dohner Title Reversions

I’ve suspected this was coming for some time: yesterday, some of New York Times Bestselling Author Laurann Dohner’s titles are no longer available from Ellora’s Cave. The only plausible explanation for same is that the titles have reverted.

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• ellorascave

Dec 2015: Ellora's Cave v. Dear Author Suit Dismissed by Judge

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

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

IT IS SO ORDERED.

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

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

Links to More Authors Speaking Out

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

Right after the settlement was announced almost two months ago, there was a pall of silence for a bit, but since then, quite a few more authors have spoken out about their experiences with Ellora’s Cave.
Here are some of those links with a summary of each. I’ve listed the authors in alphabetical order by first name.

• A.M. Griffin posts asking readers not to purchase her Ellora’s Cave titles (the “Dangerously” series). Her post also has links to her non-EC titles, including some under other pseudonyms.
• Ann Jacobs posts about having first published with EC in 2003, and how her eyes were opened. (Ann still has a motion pending in the Ellora’s Cave v. Dear Author case claiming she’s owed $193,000 in back royalties.) Ann has also asked readers not to purchase her EC books while they’re still at EC. Here’s Ann’s Amazon author page.
• Cait Miller started out with Ellora’s Cave in 2003, which is fairly early. Quote: “Maybe two years ago my sales had dropped so drastically that I started to question my books fit with EC.” Note that this was before the Dear Author article and thus the lawsuit. She doesn’t have any non-EC books available at this time, so I’ll link to her author page if/when that changes.
• Denise A. Agnew has asked readers not to purchase her Ellora’s Cave titles while she’s still at EC. Here’s Denise’s Amazon page.
• Frances Stockton started out with Ellora’s Cave as a Paranormal Historical line for the company’s Cerridwen Press imprint, which later became their Blush imprint. Frances’s Amazon page is here, and her non-EC title is here. I’ll speak to Jaid Black’s comments on Frances’s post in a separate entry.

• Jane Leopold Quinn posts her own story.

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

  Jane’s Amazon author page can be found here.

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

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

  Kate’s Amazon author page can be found here.

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

• Titiana Ladley spoke out on Twitter:

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

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

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

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

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• ellorascave

Dec 2015: Ellora's Cave: Former Managing Editor Speaks Out

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

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

I’m going to give a summary of those recent developments, then I’m going to discuss a few rumors going around and my take on those rumors. This is likely to be the first of several such posts.
And, at the end, a follow-on to my previous Ellora’s Cavemen anthology post.

Ellora’s Cave Former Managing Editor Speaks Out

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

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

She talks about the heartbreaking treatment of authors:

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

…and…

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

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

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

I’ve been in similar work situations (in another industry) and can deeply resonate with this post.
The entire post is worth a read, and it’s also a great cautionary tale for why you, as a writer, should negotiate the hell out of your contracts.

Dear Author Revelations about Court Costs

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

To date, I have paid the following in fees:
Randazza Law Firm: 115,712.29
Lefton Group: 2,855.00
Expert witness fee: 5,075.00
Brennan, Manna & Diamond: 8,936.06
The total was: $132,578.35

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

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

Jane Litte’s Error Corrections

As covered in this Dear Author post.
My commentary follows:

I made some errors and want to correct them:

1. Tina Engler has represented that she has not purchased a house in West Hollywood and has not indicated to me that she did.
2. She has not gone on any recent Rodeo Drive shopping trips.
3. The principals of Ellora’s Cave did not receive “no interest” loans.
4. It has been represented to me that, at the time of the post, most or all authors had been paid within their individual contracts.
5. Finally, Patty Marks has not said that the company will be entering bankruptcy or that any contracts will be sold in bankruptcy.

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

1. Tina Engler has represented that she has not purchased a house in West Hollywood and has not indicated to me that she did.
   I’d previously mentioned that I’d found Tina Engler saying it was a lease. That said, it was a mistake, not a lie (nor defamatory!), and Jane’s context in the Curious post is still relevant: it’s an expensive place to rent, too. This correction seems to be all about Tina Engler’s ego.
2. She has not gone on any recent Rodeo Drive shopping trips.
   @ataglanceRMC pointed out that Tina Engler said she was looking at houses in the area at the time that she checked in from Rodeo Drive. That said, Jane Litte’s statement wasn’t defamatory, nor was Tina Engler even a party. This correction seems to be all about Tina Engler’s ego.
3. The principals of Ellora’s Cave did not receive “no interest” loans.
   This was actually not one of Jane’s representations, but something from the Brashear case that Jane cited. Maybe Ellora’s Cave should have fought harder on that docket.
4. It has been represented to me that, at the time of the post, most or all authors had been paid within their individual contracts.
   Note that this assertion is very carefully worded, quite scathing, and says absolutely nothing about what Jane thinks the truth is, nor what the truth actually is, nor what you should believe.
5. Finally, Patty Marks has not said that the company will be entering bankruptcy or that any contracts will be sold in bankruptcy.
   …but that says absolutely nothing about whether or not Ellora’s Cave is a going concern.

Instead, what we have are the following:

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

Department of Rumor Control

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

Rumor: Ellora’s Cave Won the Lawsuit

(Rumor source: now-deleted facebook post by RT Booklovers Convention; here’s their apology.)
Fact: This rumor is false. The lawsuit was settled, which can be more accurately translated as: both sides lost.
Fact: Also, technically, the case is still not over. The judge noted a settlement had been reached on Oct 22, but there has been no stipulated motion to dismiss, nor has the case been dismissed by the judge. There is still the matter of Ann Jacobs’s motion to intervene, too.

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

(Rumor source: Emma Paul.)
Fact: When the court issues an order, there’s an item on the docket. There is no such item on the docket. Also, the copy of the order is downloadable by anyone unless it is noted as sealed. None of the judge’s orders are noted as sealed.
As of this writing, there have been no docket items since the judge’s note of the proposed settlement on October 22. When the settlement is final, the case is finally dismissed, and that has not happened yet.
Additionally, EC supporters can probably believe Ellora’s Cave’s lawyer on this (document here):

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

This was not ordered by the judge. Plaintiffs and Defense approached the judge the following day with a proposed settlement.
Anyone with a PACER account can verify that my copy of the docket matches the court’s record.
If you wish to do so, here are the steps:

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

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

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

And that’s it. There are really only two substantive rulings in this case: denying Ellora’s Cave’s motion to remand the case back to Ohio state court, and the denial of @pubnt’s motion to quash the subpoena to Twitter to discover @pubnt’s identity.
To those spreading this rumor: put a couple of bucks where your mouth is and support accurate information.

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

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

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

For an agented author:

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

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

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

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

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

(Source: Tina Engler)
This is false.
Fact: Nothing Ellora’s Cave submitted about any author was proven to be true in court. There were no rulings about the factual nature of any evidence about any author submitted in the case.
Except, of course, for @pubnt. Somehow, I don’t think that’s what Tina meant, though.
It’s not proven until the judge or jury agrees; please see above for all the judge’s orders. No jury was ever selected as the case didn’t get to the voir dire stage.

Ellora’s Cavemen Anthology Contract

I’ve been given a copy of what claims to be a 2008 Ellora’s Cave Cavemen Anthology Contract. (Note: it may be until sometime Saturday 12/12 before this document syncs)
I don’t know that this contract is specifically the same as any that were signed. I just noticed the following things about this particular document.

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

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

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• ellorascave

Nov 2015: Ellora's Cave: Laurann Dohner's Subtle Announcement

Earlier today, Laurann Dohner updated her facebook profile to show Ellora’s Cave as a former employer rather than her current one.

A bit later in the day, she removed Ellora’s Cave from her work history entirely.

So far as I’m aware, all of Laurann Dohner’s titles remain in print with Ellora’s Cave, at least for the time being. If I were the speculating sort, I’d guess that we’ll be seeing reversions happening at some point in the not-too-distant future.

A Shiloh Walker / J.C. Daniels Update

Earlier today, Shiloh Walker (who also writes as J.C. Daniels) posted a link to the Twitter #notchilled hashtag linking to this blog post about her Ellora’s Cave titles.
An excerpt from that post:

At this time, I’d like to request that my readers stop buying the titles below from any and all retailers. If I’m not going to get paid, and in a timely manner, I’d rather the books not be bought at all.
Her Best Friends Lover
Silk Scarves and Seduction
Never as it seems
Guilty Needs
One of the Guys
His Christmas Cara
Lacey’s Game
Belonging
Sexy Little Surprises

Best of luck to Shiloh on getting reversions for her remaining EC titles.
I’ve heard from sources sources that many, if not most, long-time Ellora’s Cave authors want out. Unfortunately, they’re neither in a position to use a hammer (e.g., a lawyer) or slink under the low number of sales. Most are now publishing with other houses or indie publishing themselves. (As far as many/most, I believe my sources are credible on this point, but I obviously haven’t heard from more than a fraction of EC’s authors.)
At least some fear speaking out because they’d be branded as troublemakers—and feel they would be less likely to be paid and/or less likely to get reversion offers they could live with.
Which reminds me….

Booktrack Adds Ellora’s Cave As a Publishing Partner

The article here lists a few Ellora’s Cave authors being converted to the Booktrack format:

• A.L Wiley (first published by EC in Oct 2015)
• Lora Leigh (long-time EC author whose last EC book was published in May 2014)
• Desiree Holt (long-time EC author whose last EC book was published in Feb 2015)
• Audra Carusso (first published by EC in Feb 2015)
• Joanna Wylde (EC published the first book in a series; later volumes from Berkeley made her a NY Times bestselling author)

Joanna Wylde, you may recall, was one of Jane Litte’s sources for her Dear Author article The Curious Case of Ellora’s Cave, and said she had not seen Amazon payments since January. (Despite the name being redacted on that document, it’s put together in this document on p.6.)
So what’s Booktrack’s interest in Ellora’s Cave?

Booktrack offers a new content creation and distribution platform that turns reading into an immersive movie-like experience. Booktrack’s patented technology lets anyone add a synchronized movie-style soundtrack to an e-book or other digital text content, with the audio paced to each individual’s reading speed.

I can just hear the moan soundtrack and the bad ’70s jazz….

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Nov 2015: Ellora's Cave: Authors, Double-Check Your Royalty Statements

Some Ellora’s Cave authors have been reporting that, indeed, they have received royalties from Ellora’s Cave recently. Yay. Except that some of those same authors are reporting they have notable inaccuracies.
Update 11/18:

Color me surprised–I received a check from EC today for Mar-Jun royalties, an amount in line with my expectations. #notchilled

— Robin L. Rotham (@robinlrotham) November 10, 2015

Yesterday received EC royalties check and statements – March, April, May and June 2015 :-) #notchilled

— Jan Springer Author (@janspringer) November 14, 2015

Hold the hoorays, though, because there are issues.

Royalty Statement and Check Mailed to Wrong Person?

Sidney Bristol reports that someone else received her royalty statement and check.

I’ve been told someone else has received my statement and royalties, so technically I guess I’ve been paid? So weird. #notchilled

— Sidney Bristol (@Sidney_Bristol) November 15, 2015

Paid for Print Book that Ellora’s Cave Never Published?

Update 11/18: I’ve added Patty Marks’s letter to the ec_biz list at the bottom of this post. This was a product type error that reportedly does not affect the royalty amount.
Shoshanna Evers reports having received a royalty statement claiming that she was being paid for a print book for her title Chastity Belt—even though Ellora’s Cave never published that title in print.

The *only* paperback format of this book was self-pubbed after EC rights reversion. What is going on? ? #notchilled pic.twitter.com/oelHwhoorZ

— Shoshanna Evers (@ShoshannaEvers) November 16, 2015

Olivia Waite reports the same issue:

@ShoshannaEvers Mine has the same thing, I just saw, and I’ve never had print editions of these titles. ??? #notchilled

— Olivia Waite (@O_Waite) November 17, 2015

If you search on Shoshanna’s ISBN, though, (see tip below), you’ll find this Google books page. Now that link doesn’t specifically state that it’s an ebook (nor does it have the correct description for the book), but it is the ebook published in 2011. Sometimes you need to look at several of these to get the full picture.
What’s important, though, is that Ellora’s Cave pays lower royalty percentages for print books due to the physical cost of producing and shipping books. Reasonable.
It seems to me that this was an error on the royalty statement for the wrong format. It’s pretty clear for those cases where only one format was ever published by EC, but less clear when both print and paper were published.

Price Column Sometimes the Total, Sometimes the Unit Price?

Robin L. Rotham reports that sometimes the price column is the price per unit, and sometimes the total.

@authrannjacobs @ShoshannaEvers And WTF is up with the PRICE column? Sometimes it’s the total, sometimes it’s price per unit. #notchilled

— Robin L. Rotham (@robinlrotham) November 16, 2015

She also reports being underpaid for a specific title for a four-month period.

Two Conflicting Statements for the Same Month?

Robin L. Rotham also reports getting two statements for March—and they disagree.

@authrannjacobs @ShoshannaEvers AND got two statements for March, different formats and totals. Not sure what to make of THAT. #notchilled

— Robin L. Rotham (@robinlrotham) November 16, 2015

What’s Really Disheartening…

…is trying to get existing issues resolved.

@authrannjacobs @ShoshannaEvers *sigh* You made me look at MY statement. My third “corrected” January statement is STILL WRONG. #notchilled

— Robin L. Rotham (@robinlrotham) November 16, 2015

@ShoshannaEvers @charmedozarks When you bring the mistakes to EC’s attention, are they able to correct them quickly? #notchilled

— Susan Garbanzo (@Soenda) November 16, 2015

@DKinnard @Soenda @ShoshannaEvers @charmedozarks response for mistakes r the same as response 4 nonpayment. Silence #notchilled

— Trista Ann Michaels (@trista_michaels) November 17, 2015

Another Issue to Check

If you have a pre-mid-2011 contract where your contract says you should be paid on cover price rather than sales price (and you didn’t agree to amend the contract to sales price), you might want to double check that your royalty statement reflects the correct price.
For more information about this issue, please see Ann Jacobs’s Intervening Counterclaim in the Ellora’s Cave v. Dear Author case.
I’ve heard that some people hadn’t heard about Ann’s counterclaim (still pending in court as of this writing), so wanted to give a heads up.

The Long Tail, Redux

Assuming a constant error rate, one way Ellora’s Cave could reduce its number of errors is, as I’ve said before, chopping the long tail.

Search Tip

If you have an ISBN and want to check more information about who the publisher is and what the format associated with that ISBN is, Google on:

ISBN (number)

I find Google is a better search engine than Bing for this particular purpose as you’re more likely to find a useful result with smaller houses.

Patty Marks’s Letter re: ARE Books Showing As Print

From: Patty Marks
Date: Nov 18, 2015 2:11 PM (1 minute ago)
As you receive your royalties, you will notice that the product type under ARE (All Romance Ebooks) sales is showing as PRINT on the May statements. This should read Ebook, however, if you do the calculations, you will see that it has no affect on the royalties. According to our MAS liaison:
“when loading customer sales order file, the Store Site and Product Type is defined. the Store Site and Product Type are constants in the production of the monthly Detail Report.
all royalty calculations, Print or E Book are performed for each ISBN in the Inventory module. regardless of the Store Site or Product Type defined at the sales order load, the inventory module identifies the ISBN correctly and assigns the correct royalty percent accordingly..
thats it.”
I noticed the error when we started sending them out, but did a quick calculation and saw that it had no effect on the numbers. As that was the case, we decided it was more important to work on getting them out rather than redoing everything. I apologize that I didn’t mention it.
Sincere thanks to Jan Springer for contacting us – she had already figured the numbers were correct, but I really do appreciate her bringing it to our attention, as we should have saved her and others the trouble of figuring it out for themselves.

I’m very glad this doesn’t affect royalties and doesn’t mean EC will have to issue a bunch more checks and the authors were (per Patty) paid correctly for those titles.

Questions? Comments? More Royalty Peculiarities?

Please feel free to leave comments below.

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• ellorascave

Nov 2015: Ellora's Cave: We've Heard This Before

First: if Tina’s email comes to pass, it will mean Ellora’s Cave authors will be getting paid. My commentary follows Tina’s email.

From: theeternaltubthumper
Date: Nov 6, 2015 1:33 AM
Subject: [ec_biz] royalty info
I wanted to let everyone know to expect a check for March-June (hopefully!) before Christmas!! 🙂 Checks have resumed going out daily along with their accompanying reports. As these reports are being pulled individually, it will take a solid 1-1.5 months to get them all verified, and mailed. After March-June is completely done, we will repeat the process for July-September (or July-October if it takes closer to 1.5 months than 1 month to mail all the March-June checks.) Point being, everyone will be 100% caught up soon!!
I won’t bore you with too many technical details, but I do want to try and semi-explain the software for the reports: every month has to be pulled, verified, and re-verified before a check is cut. We wanted to send out one check covering March-August, but July and August still need pulled, verified, and re-verified; we figured you’d rather get March-June now and the remainder in the next batch as opposed to waiting on those reports so everything could be included in 1 check. (And hopefully that made sense!)
At any rate, Courtney is busting more butt than usual in an effort to get everyone’s March-June checks to them in time for the holidays. The less email she receives over the next month, the better. Obviously if there is something that needs brought to her attention ASAP, please do email her. Otherwise I will post here when the last batch of checks are mailed so you know to contact her if you haven’t received your check within 10 business days of that date.
Last note: we are going to be switching our biz loop to a different, trackable system after the checks are caught up so we can resume open communication. We are very sorry we’ve had to go nearly silent this past year and look forward to resuming open communication with you to keep you apprised of what’s happening at home base.
If you don’t hear from me beforehand, please have a very Happy Thanksgiving 🙂
Tina/Jaid

Sooooo…Tina’s pre-announcing checks. Remember January’s pre-announcement?
And EC’s going to switch to some trackable system that even major tech companies do not use because…why, exactly? EC’s communication wasn’t top notch even before the whole Dear Author thing went down. It’s not Jane’s fault, nor Courtney’s, nor mine, nor any of the other participants in #notchilled.

Well, I’m glad you clarified that, Jaid. Really. (Note: screenshot is of this link.)

¡¿Four to Six Weeks Per Quarter!?

Let me get this straight: Ellora’s Cave’s controller is spending a solid third to half her working hours verifying (and inputting) royalties and issuing checks. There are, as of October 19th, 813 Ellora’s Cave authors, but let’s round that down to 800 for easy math, which translates to 133 to 200 authors per week.
If we assume eight-hour days and five days a week (even though that’s optimistic), that’s forty working hours a week. An average day would therefore mean 26-40 authors’ royalties verified; an average hour 3.25-4 authors.
Assuming there’s no easy way to make the work process more efficient (doubtful, but let’s run with it), what’s the easiest way to reduce the workload without reducing profitability?
Chop the long tail. From that post:

With over 800 authors, some of those authors are going to be bringing in peanuts and others whole food trucks. Release the authors that are consistently not performing.
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).

Also, it’s probably true that anthologies are the most difficult. Given that anthologies divide royalties between contributing authors, for every anthology, you’ve got to do the work N times. Unless those are really really big sellers, then it’s time to give them a neutral look with a profitability eye.
If some authors aren’t making more for the house than the cost to cut the checks, it’s saving both money and time to cut those authors from the list.
It’s also unclear to me why hand verification of each author is necessary. Even indie authors get spreadsheets from Amazon. Those spreadsheets include things like:

• ASIN
• Quantity sold (also includes KU/KOLL if those features are enabled)
• Price sold at
• Currency

I can see one possible configuration of the required database tables in my head:

• Authors
• Books (this would include a field for whether the payment for this book was based on cover price or sales price and the royalty rate for this book)
• AuthorsXBooks (many-to-many join table with at least one additional field for royalty %)
• SalesOutlets (e.g., Amazon, All Romance Ebooks)
• BooksXSalesOutlets (to hold things like Amazon ASIN and URLs by site)
• SalesOutletsCurrencyMonth (i.e., for Sep 2015, Amazon’s exchange rate for UKP was USD $1.59)
• SalesXBooksXSalesOutlets (Also links to SalesOutletsCurrencyMonth for non-USD sales. Basically, this keeps sales price (which can be multiple values per sales outlet per month), month sold, quantity sold—and stuff like that.
• RoyaltiesXSalesOutlets (totals received from each vendor by period—the check-and-balance in double-entry accounting)
• PaymentsXAuthors (check #, time period covered, amount)

Then write an importer for each file from each publishing outlet and some good unit and functional tests for edge cases. If the royalties (including the publisher’s share) total the payment received, it’s good.
What still mystifies me: if this new royalty application has caused (or helped cause) so much consternation and cost since 2013, where’s the lawsuit for that?

Why Is Tina Pre-Announcing Now?

Let’s look at a timeline here:

Date	Event
08-18-2014	Ellora’s Cave Layoffs.
09-24-2014	Laurann Dohner’s Darkness, a book in her New Species series, released. Shortly after, the book becomes a NY Times bestseller. Amazon monies for this would start coming in the end of November (assuming the same payment schedule as indie authors); All Romance Ebooks payments would arrive mid-November.
10-29-2014	Laurann Dohner’s Smiley, a book in her New Species series, released. Shortly after, the book becomes a NY Times bestseller. Amazon monies for this would start coming in the end of December (assuming the same payment schedule as indie authors).
1-7-2015	Tina/Jaid’s post to the biz loop about the status of royalty payments. (Note that one editor commented a few days ago saying that she’s still not been paid.)
9-8-2015	Laurann Dohner’s Numbers, a book in her New Species series, released. Shortly after, the book becomes a NY Times bestseller. Amazon monies for this would start coming at the end of November; All Romance Ebooks payments would arrive mid-November.
10-28-2015	Alien, an anthology featuring four Ellora’s Cave authors is released. One of the four stories is a new Zorn warriors story from Laurann Dohner.
11-6-2015	As quoted above, Tina/Jaid’s post to the biz loop about the status of royalty payments.

The point is: these little boom cycles where EC crows about being able to pay their authors follow fairly closely on the heels of Ms. Dohner’s book releases.
Which begs the question: Given Laurann Dohner’s announcement of a new self-published series, what’s going to happen when Ellora’s Cave no longer has new bestselling titles from her to rely on?

Speaking of Ellora’s Cave Releases

Let’s look at that image up top again.

After the August 2014 layoffs, EC immediately dropped from nine to ten releases per week to eight for the first two weeks of September, then five for the third (which was the week The Curious Case of Ellora’s Cave was published). So there’s absolutely no way that Dear Author’s article could have triggered that change. The following week bounced back up to eight releases, but the last week of the month—the week that Ellora’s Cave filed suit against Dear Author and Jane Litte—went back up to nine releases.

Part of the reason for the drop was the elimination of the Blush line (though there still would be releases of already-contracted Blush titles), which had typically accounted for one or two titles on a Thursday release. Non-Blush EC titles were released on Wednesday and Friday.

Over time, the number of releases slid…no week in December 2014 had more than six releases in one week, and the final full week featured only three releases.

With the exception of July, releases for 2015 ran about half that of the previous year’s releases, dropping even lower by August.

What’s also interesting is that since October, 2014, Micah BlackLight’s The Cult of the Serpentari has comprised 27 releases—more than any whole month since October 2014—first as 24 volumes chapter-by-chapter (from October 2014 to April 2015), then three omnibus volumes published in May 2015. It seems pretty clear that the old pricing structure wasn’t working as 24 volumes worked out to be a lot of money.

I said to Rick, “I’m not quite sure what to say about this graph.” Except perhaps that romance writers came to feel about Ellora’s Cave the way majority owner Tina Engler/Jaid Black clearly feels about them.

Rick said, “Perhaps some arch comment about starting a new chapter in their business?”

Edit Note

11/16: I’d inadvertently deleted the final two rows of the dateline table when I had two edit windows open and continued in the wrong one. Only realized this a week later.

• publishing
• ellorascave

Oct 2015: Ellora's Cave: Some pubnt Trick-or-Treat

As much as @pubnt made us tear our virtual hair out on #notchilled, there were some really (unintentionally) hilarious assertions. Here are a few of my favorites.

1. Claiming to be a legal blogger (and law student)
2. …yet failing Courtney Milan’s 1L test.
3. Claiming Ellora’s Cave was in “merger” talks with a big 5 publisher.
4. Asserting tax liens are a “government agreed tax incentive” and “low cost loan.”
5. Saying it was perverse for the (Dear Author) defense team to call @pubnt as a witness. (Completely failing to understand why defense was subpoenaing Twitter about @pubnt’s identity.)
6. Assertions that Ellora’s Cave, which was founded in 2000, is an “ancient” publisher.
7. Claiming that Ellora’s Cave had $15 million cash in the bank, despite the fact that there are consistent reports, both last year and this year, of authors being paid super late.
8. “Wrong rubbish.” See also: false rubbish and banned wrong rubbish.
9. Not to mention “banned pariah.”
10. Asking Marc Randazza, lawyer for Dear Author, a legal question.

Claiming to Be a Legal Blogger and/or Law Student

@julainestone @jaidblack As legal bloggers we present valid legal arguments. Only the Judge determines if our legal arg. applies.#notchilled

— Pub Net (@pubnt) December 24, 2014

@tejasjulia Only one of us is, but she is hardly on here. Yeah, we are legal bloggers with access to a lawyer sometimes. #notchilled

— Pub Net (@pubnt) February 14, 2015

@Anda_Rae @Gianna_Simone @excogitates As a law student and a lawyer we knew this had to happen for Judge Adams to run the trial. #notchilled

— Pub Net (@pubnt) January 30, 2015

Courtney’s 1L Test

Hey @pubnt if your number includes a lawyer, when does the law assume that all eighty-year-old woman can have children?

— Courtney Milan (@courtneymilan) December 18, 2014

Covered in this post here.

Tax Liens

@AuthorAnitaCox Tax Liens: Because it is a Government AGREED tax incentive and for effectively EC a low cost loan. #notchilled

— Pub Net (@pubnt) February 16, 2015

@tejasjulia Agreed tax liens is a LOWEST rate cash around 4 the “borrow low (interest), invest (at) high” returns first princple.#notchilled

— Pub Net (@pubnt) January 15, 2015

(Quite apart from the fact that the existence of tax liens will tend to drive the cost of all other sources of credit higher.)

Calling @pubnt as a Witness

@ataglanceRMC And thus the DEFENSE calling us as a witness is PERVERSE. For who calls a “witness” to prove the OPPOSITION’s case?#notchilled

— Pub Net (@pubnt) February 16, 2015

Courtney covers the logic errors in @pubnt’s position here. I just re-read that post the other day, and it’s fantastic.

Ancient Publisher

I’ve sat on things that pre-date Christianity (e.g. at the Temple of Delphi), so even my ass has more experience with ancient things than EC…unless one’s counting appropriating sacred caves in India or symbols of Ancient Egypt.

Even if EC wants to consolidate, which there is no indication of, demand for the ancient pub will be huge. @Soenda #notchilled

— Pub Net (@pubnt) October 16, 2014

There’s no reason for the authors of a publisher with a rep as ancient as EC to panic. #notchilled

— Pub Net (@pubnt) October 16, 2014

EC is an ancient enough Pub it must now close doors to unagented submissions. Agents know how to behave, filter trash.@jaidblack #notchilled

— Pub Net (@pubnt) October 13, 2014

$15 Million in Cash in the Bank

@tejasjulia @ataglanceRMC They can confiscate EASILY from bank account with $15 million if they wanted, Mega Supid Slush Piler. #notchilled

— Pub Net (@pubnt) February 16, 2015

…and also this overstatement of EC’s earnings (based on various articles)…

@AuthorAnitaCox @ataglanceRMC ..right through the years EC was raking in 15 million to 20 million profits per annum. #notchilled

— Pub Net (@pubnt) February 16, 2015

Wrong Rubbish, et al

@julainestone @deirdresm If EC had gone under by the end of the year DA would be sitting pretty now for it was not WRONG RUBBISH.#notchilled

— Pub Net (@pubnt) February 16, 2015

@julainestone @deirdresm ..that has already been proven as WRONG RUBBISH meeting conditions of Libel stronger every day. #notchilled

— Pub Net (@pubnt) February 16, 2015

Banned Pariah

@Format_Me @julainestone A banned pariah with no credibility that nobody respects and nobody believes. #notchilled

— Pub Net (@pubnt) January 28, 2015

@Soenda @julainestone That’s in Slush Piler Dreamlandia. EC will laugh at any demand from this banned pariah slush piler. #notchilled

— Pub Net (@pubnt) January 13, 2015

Asking Randazza

@marcorandazza (1/2) Please give us an insight into why you would go to Fed court with an experienced First Amendment judge… #notchilled

— Pub Net (@pubnt) January 27, 2015

@marcorandazza (2/2) … and then agree to proceed with a Magistrate, counselor. Any insight much appreciated. #notchilled

— Pub Net (@pubnt) January 27, 2015

Randazza’s answer is gone, but if I recall correctly, it boiled down to ask your own lawyer.

Special Double Backflip Fail Award

And for the special double backflip fail award, special mention should go to filing a paper with the court (interpreted as a Motion to Quash) that was so ineptly written the court was able to overrule simply because @pubnt admitted to having discoverable information in their filing. From the judge’s order:

Here, @pubnt objects to any information being produced by Twitter that may assist in identifying the “owners” of the account. However, in the five-page letter, @pubnt does not identify or analyze any basis for quashing or modifying the subpoena permitted under Rule 45. Instead, the letter indicates that the individual or individuals who purport to be the “owners of the ‘@pubnt’ Twitter account” are intimately familiar with the parties in this case, along with the claims and defenses asserted. They speak adamantly, declaring to all readers that they have witnessed misconduct by Defendants and that they can prove their negative statements about the Defendants. These facts alone put @pubnt and its “owners” within the confines of Fed.R.Civ.P. 26 and Fed.R.Evid. 401, and therefore, their information is subject to discovery under the subpoena power of the Civil Rules.
In their letter – let alone the actual tweets on the account – the @pubnt “owners” confirm that they have knowledge about the underlying allegations and defenses, such as claims for defamation/libel and the defenses of truth, substantial truth, and lack of malice.
[…]
Simply reading the “owners’” letter demonstrates that they have relevant information that is discoverable in this case. Merely because the Defendants may be able to obtain certain information from other sources does not render the subpoena unnecessary. Furthermore, Defendants are entitled to pursue discoverable evidence from the primary source, instead of merely accepting statements by the “owners” that information they have can be procured by other means (especially considering the tenor of their letter shows an almost venomous disregard for Defendants).

Several Reasons Why I Think Tina Engler Is @pubnt (or part of @pubnt)

Comments About EC’s Counsel, Past and Present

First, assertions about the Dear Author suit’s Ellora’s Cave Attorney vs. the Brashear suit’s EC Attorney.

@deirdresm Seems EC has a better attorney this time or he wouldn’t have agreed stipulations. He’s not playing hardball. #notchilled

— Pub Net (@pubnt) November 1, 2014

@deirdresm .. unlike the attorney in the last case. This attorney seems to be conducting this case very correctly. #notchilled

— Pub Net (@pubnt) November 1, 2014

@deirdresm I meant better in the sense better behaved proceduraly and in compliance than the atty in EC’s previous case.#notchilled

— Pub Net (@pubnt) November 1, 2014

I’ve made reference several times to the Brashear judge’s 27-page smackdown ruling (doc here, please add popcorn), but there is nothing in that document that points to any correctness of @pubnt’s assertions. In fact, this conversation caused me to read the entire Brashear case over time, and I never did have that kind of sense of either their earlier counsel in the case (whom EC later sued) or their later counsel.
So who would? One of the very few EC insiders who either a) had direct access to said counsel; or b) was one of EC principal’s confidantes—but even confidantes will tend to forget details over the years, you know?

Comments About Ellora’s Cave’s Merger Negotiations

Merger information is generally embargoed until the merger is fully hashed out, but @pubnt was quite happy to tweet all about it.

@JetGibbs The merger partner would have trimmed the bad eggs. happens all the time. Lean and mean EC with big profit margins. #notchilled

— Pub Net (@pubnt) February 14, 2015

@trista_michaels Your contract will also be earmarked for a fire sale by EC & big pub merger partner. #notchilled

— Pub Net (@pubnt) January 31, 2015

@tejasjulia @CatGrant2009 @ataglanceRMC EC wouldn’t want a sale. Only a merger. #notchiiled

— Pub Net (@pubnt) January 17, 2015

Funny how @pubnt knew (alleged) internal motivations. Even more interesting was that Ellora’s Cave never did anything about it. In fact,

Lightening

@ShelbieKnight Stands to reason. NO PUBLISHER would touch an author complaining about a lightening fast 3/5 Editing schedule. #notchilled

— Pub Net (@pubnt) November 9, 2014

@ShelbieKnight Professionals don’t tweet comments the opposite of the norm – about a 3/5 month lightening fast Editing schedule

— Pub Net (@pubnt) November 9, 2014

As I’ve previously pointed out, this one of several typos that Tina Engler and @pubnt share.

Ellora’s Cave Seemed Singularly Uninterested in Who @pubnt Was

…despite the fact that @pubnt made Ellora’s Cave look bad.
In fact, in filing 72-1, Mastrantonio wrote (emphasis added):

Even if Plaintiffs were responsible for the actions of @pubnetTwitter, such conduct is not relevant to establish any element of abuse of process. Element (2) of abuse of process makes it clear that the “proceeding” that is being used for the ulterior purpose is the legal proceeding. In other words, the abuse has to involve the misuse of procedures like discovery or some other tool of the judicial process. Regardless of who or what @pubnetTwitter is, its actions are not using the machinery of this litigation. Accordingly, such conduct cannot be considered as part of an abuse of process claim.

Mastrantonio seemed so clueless about Twitter at that point that he really had no idea what had been going on for months.

Credits

Thanks to Brian Longoria for the Pumpkin PSD mockup. Fun!

• publishing
• ellorascave

Oct 2015: Ellora's Cave: Dear Author/Jane Litte Case Settled

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.

• ellorascave

Oct 2015: Laurann Dohner Announces New Self-Published Series

Yesterday, New York Times and USA Today bestselling author Laurann Dohner said she’d have some news today. Today, she posted the news: she has one book completed and another in progress, both to be released in December. The really big news happens in the first and second comment:

For the visually impaired, Valerie asked:

Will this be a self-published venture or through your regular publisher?

(All of Ms. Dohner’s previous books have been published by Ellora’s Cave.)

She replied:

You go right for the tough one, Valerie. LOL. This is my project. It’s my baby.

Which several people interpreted to mean these two books will not be published by Ellora’s Cave.

Existing Series

So far as I know, all of Ellora’s Cave’s recent NY Times or USA Today bestselling titles have been authored by Laurann Dohner.

Ms. Dohner did say further along in comments that, “I still have a “to write” list a mile long for my other series.” So we can expect to see more in those lines, though she hasn’t stated whether or not those books will be published by Ellora’s Cave. Legendarily, Ms. Dohner signed a 75-book contract with Ellora’s Cave in 2011, but of course we don’t know exactly what the terms of that contract are.

I’m happy for Laurann and her new books, and I’m glad she’ll be able to bring them out independently. I could even pick up copies without breaking my “no Ellora’s Cave titles” rule. During this last year, I’ve met some huge fans of Ms. Dohner’s writing, and I’m looking forward to being able to see what the fuss is about.

Comments

I’d love to hear your comments, but please keep them polite. It’s a big step announcing a shift to being an indie writer, and it can be a scary time.

Also, this post may (or may not) have been brought to you by repeated listenings of Ozan Çolakoğlu’s song “Aşk Gitti Bizden” featuring Tarkan on vocals (English lyrics).

• ellorascave
• writing
• authors

Oct 2015: Ellora's Cave: Recent New York Times Bestsellers

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

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

Note: she’s also ranked on the combined print + e-book list multiple times, but the matching print book has not been out at any time she’s made the list, so I haven’t included those numbers. With only the e-books available, the combined ranking is more of an indicator of how well print vs. e-books did that week than about Ms. Dohner’s rankings per se.
“Yeah, well? What’s your point?” I hear you say.
I’m glad you asked.
In short, looking at Ms. Dohner’s NY Times Bestseller list positions, it doesn’t appear that the Dear Author article did any damage to her ability to make the list or her position on the list.
When I thought to look this morning and see how Laurann’s newest book was doing, I’m reminded of something Tor editor Patrick Nielsen Hayden said to me at Clarion.
To paraphrase: what you see at writing conferences and workshops and science fiction conventions is only a small part of your readership, and don’t overinterpret what’s going on in the small groups because they’re rarely reflective of one’s readership as a whole.
Let’s visualize the ranking in a scatter plot, which will make my point clearer. Note that lower numbers are better.

In a nutshell, compared to the e-book market as a whole, Ms. Dohner’s e-books are not faring worse after the EC layoffs and Dear Author’s Curious article than they were before.
For the last table, I’m not a statistician. That disclosure out of the way…here’s what I know.

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

To translate that into English: on average, Laurann Dohner’s e-books rank 3.2 places higher (11.9 before vs. 8.7 after) on the New York Times Bestseller list after the layoffs and Dear Author article than before. The median of is one place higher (9 before vs. 8 after).
None of which means sales are necessarily higher, just that they’re strong relative to the other contenders in the market.

Ellora’s Cave’s Claims About Reversions

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

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

cough

The Bankruptcy “Scare”

Let’s look at who created that bankruptcy “scare,” shall we?
On August 19th, Dear Author republished the layoff letter Patty Marks had sent to the EC biz list that had previously been published on Absolute Write. It included this choice quotation from Patty Marks:

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

Many of us read that as: “we are in too poor a shape to file bankruptcy.”
Many of us also saw that article signal boosted onto The Passive Voice, where the commenting got quite spirited. Many of us read and latched onto antares’s comment, specifically:

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

Later on, antares clarifies in another comment:

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

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

The Reversions Numbers Game

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

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

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

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

Option 1 is cash they’re not entitled to unless the author leaves it on the table. Given that most of the 154 were in this category, I’m betting most of the 1250+ were, too.
Option 2 is improvement of cash flow.
Option 3 & 4, well that’s just business.
None of the above are Dear Author’s fault. That’s how I see it, anyway.

Ellora’s Cave Should Have Chopped the Long Tail

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.

• ellorascave

Oct 2015: Calling Current and Former Ellora's Cave Authors

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.

• ellorascave

Oct 2015: Ellora's Cave: RWA Addition to Dear Author Motion

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

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

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

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

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

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

As a reminder of the timeline in this case:

1. On August 18, 2014, Ellora’s Cave laid off many of its staff. This was reported by Dear Author’s Janet the following day.
2. On September 14, 2014, Dear Author published The Curious Case of Ellora’s Cave (sometimes abbreviated TCCoEC on Twitter) by Jane Litte.
3. On September 27, 2014, Ellora’s Cave and Jasmine Jade filed suit against Dear Author and Jane Litte.

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

Getting Behindier

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

Multiplying the cover price ($5.95) times the contractual royalty rate (37.5%) times
the number of Kindle books sold (257), [Jacobs] was entitled to receive a total
royalty of $573.43 for March 2012 Kindle sales of In His Own Defense.
However, Ellora’s Cave paid [Jacobs] a royalty of only $77.49. The reason for the discrepancy is that in March 2012 Kindle copies of In His Own Defense were sold at a substantial discount from the cover price, and Ellora’s Cave improperly calculated the royalty based on the sale price rather than cover price.

In other words, with the receipt of the check for March 2012, Jacobs claims that she didn’t receive the full royalties she was due.
Now, had that been, say, a car or mortgage payment with certain banks, the monies received would have been put aside into an escrow account until the full payment is received and then the monthly payment’s applied when it’s received in full.
Something like this:

So you see, over time, even with a simple $63 transposition error, someone can seriously fall behind over time, and one month behind slips to two and three as time goes on.
It seems likely, with the $193,000 claimed as due Ann Jacobs, that there have been a number of months with shortfalls that, taken cumulatively, may well mean that as of September 2014, payments had slipped six months or more behind.
By which I mean to say that this statement by Jane Litte in the Curious post would be actually true, not just substantively true, that, as of September 2014:

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

Possibly because even checks received in, say, January through early September were paying royalties owing for more than six months, and not received for months January through early September of the current year.
In other words: if, because of a publisher’s underpayment of royalties, an author is only fully paid through (example) March 2013, receiving royalty checks in Jan-Sep 2014 does not mean those checks were for the periods Jan-Sep 2014 even if the accompanying royalty statement claims that is the case.
The check should be applied to the oldest amount outstanding due the author. That’s how a bank would do it, after all.
In other words, I believe Jane Litte’s statement is actually true in a way the defense has not yet shown. It doesn’t even matter if Jane knew about it at the time of writing. Substantial truth is a defense, and that would still be substantially—if not fully—true.

Ann Jacobs as Counterclaimant

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

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

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

Nowhere does Ellora’s Cave (or Jasmine Jade for that matter) claim Ann Jacobs’s filing was untrue.
So here’s how I feel about that. I believe the fact of the lawsuit revolves around the “set of authors” phrase I quoted above. That, were it not for that one phrase, the case probably wouldn’t exist.
Digression paragraph, bear with me: Except perhaps for Tina’s desire to see “that the offending site be shut down”, perhaps, and her statement that “one of my cases was in the UK” (leading one to wonder how many there had been, exactly). And yes, I’m 99% sure that’s Tina we’re talking about: See the email address at the top of p.22 of this Brashear v. Ellora’s Cave case and then this page giving the same email address on the same site (not to mention the purpose of the site, one of Tina’s interests). And, if not Tina, it’s someone at EC who was also involved in the Brashear litigation. End digression.
Given that EC isn’t opposing the substance of what Ann is claiming, that makes it look even more likely that Ann’s claims are correct than if EC had filed nothing.
Ultimately, Ann Jacobs’s case is about the heart of the truth of Dear Author’s statements. As I pointed out above, questions about royalties paid to Ann in 2013 (or even earlier) are crucial to understanding whether any checks issued to her in the first 9 months of 2014 were in fact covering payments due in 2014—no matter how much Ellora’s Cave wants to flail madly in their filings and say prior years are not relevant.
As I’ve pointed out in an earlier post, “A set of authors” could be a set of one, in which case Ann’s factual situation could settle the truth of the underlying claim all by her lonesome.
If so, then fighting Ann’s joining the case means committing to massively higher expert and legal expenses to prove that all 900+ EC authors in September 2014 had been paid for not just all months in 2014, but that they were not in arrears to any author causing 2014 payments to be applied to earlier months and even years. Your call, EC.

EC Filing WTFery

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

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

I just can’t even with that cite. This might be relevant if Judge Adams had already ruled and the motion were being appealed, but it’s not relevant at this point in time.
The ruling is about May Company’s (this is an old case) attempts to unseal records from a case that was already closed so it could have them for discovery on the same issue. It wasn’t about a party intervening as a claimant. However, it was a 6th Circuit ruling that reversed the district court’s ruling anyway. Like, dude, I don’t know why you picked it, but that case ruling is the exact opposite of the part you cite.
So, Mastrantonio’s chosen case is cited by a Larry Flynt (yes, as in Penthouse) ruling from the 8th circuit. Let’s look at an excerpt of that:

The appellees assert that the district court did not err in denying Flynt’s motion to intervene under Rule 24(b), and seem to suggest that since Flynt admits he could file a separate lawsuit to address the merits of unsealing the judicial records in question, his rights of access are not harmed. We disagree and find Rule 24(b) intervention an appropriate procedural vehicle for parties seeking to intervene for the purpose of obtaining judicial records.
Given the district court’s terse orders denying Flynt’s motions, we are left to some degree to speculate what the district court meant when it said “[a] generalized interest in a subject of litigation does not justify intervention.” To the extent the district court denied Flynt’s motions because it believed Rule 24(b) intervention was the incorrect procedural mechanism, the district court applied the incorrect legal standard in holding that Flynt’s generalized interest in the subjects of the Zink and Ringo cases did not justify intervention under Rule 24(b). Normally, parties seeking permissive intervention pursuant to Rule 24(b) must show: (1) an independent ground for jurisdiction, (2) timeliness2 of the motion, and (3) that the applicant’s claim or defense and the main action have a question of law or fact in common. United States v. Union Elec. Co., 64 F.3d 1152, 1170 n.9 (8th Cir. 1995).

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

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

Yet, in the Flynt case, the appeals court reversed and allowed Flynt to intervene.
Which still isn’t relevant to the Ellora’s Cave v. Dear Author case, because the motion to intervene was only about access to discovery and/or records. It was also granted after the dude had been executed and that was considered sufficiently timely.
Maybe I’m expecting too much. 😉

The Timeliness Dig

Mastrantonio has a snarky little footnote:

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

Which says (emphasis added):

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

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

Motion for Further Discovery filed by Dear Author

So, there’s a discovery dispute. Are you as unsurprised as I am? It’s over the word—I know, I know, I’d never sell a story with foreshadowing this heavy handed—preliminary.
I agree with Courtney Milan that it doesn’t seem like the whole story is in the filings, so we’ll just have to see what happens with the upcoming hearing.

Ellora’s Cave Books Disappeared from Three Amazon Regional Sites

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

Repeat for amazon.nl and amazon.in. Compare with the same search on amazon.com (or .ca, .co.uk, etc.).
Note that .au, .nl, and .in are the three most recent country sites for Amazon: Australia, Netherlands, and India. (Amazon has separate retail websites for United States, United Kingdom & Ireland, France, Canada, Germany, Italy, Spain, the Netherlands, Australia, Brazil, Japan, China, India, and Mexico.)
What does this mean?
I’m not sure. I held off posting to see if something else would come up.
Knowing that Laurann Dohner had recently had a new Ellora’s Cave release, I checked out her FB page and found this:

But it’s not just affecting Laurann’s books, but those of all current Ellora’s Cave authors.
Nevertheless, the promise of some canned statement tempted me, so I wrote to Amazon PR:

Dear Amazon PR,
For almost a year, I’ve been reporting on the lawsuit filed by Ellora’s Cave against romance industry blog Dear Author and its founder Jane Litte (pseudonym for Jennifer Garrish-Lampe). https://deirdre.net/tag/ecda/
It came to my attention today that Amazon.com.au is no longer offering Ellora’s Cave titles except for three published very recently: Myra Leigh (Maddening Desire), JL Taft (Burning for the Fireman), and Tina Donahue (Wicked Times Too).
It’s my understanding that Amazon.com.au customers who’ve written in have received a prepared statement about why books from some of their favorite Ellora’s Cave authors aren’t available from your Australian store.
Does Amazon have an official statement on the matter?
Thank you in advance,
Deirdre Saoirse Moen

I received no response, however those three titles disappeared from Amazon AU within two days.
Then I decided to do a customer service chat on Amazon AU (emphasis added on key line):

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

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

Sent: Tuesday, September 8, 2015 4:58 PM
Subject: [ec_biz] Amazon AU
We are aware of the situation and are handling it. Our rep at Amazon has her team investigating this; we’ll report back to you when we hear from her.
Tina

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

Sent: Wednesday, September 9, 2015 2:50 PM
Subject: [ec_biz] Update: EC books on Amazon AU
Amazon informed us this afternoon that they have found a glitch in the payment system for publishers who are participating in the new program EC moved to in mid-July. (See ec_biz announcement of June 29, 2015.) They say this affects only the newer Amazon territories — Australia, Netherlands and India; all other territories are fine. Because Amazon’s software isn’t able to correctly generate payment information for this publishing program in those territories, the territories temporarily removed books from sale.
Amazon’s development team is investigating a workaround until they can make the needed software changes. Obviously everyone – Amazon and the publishers in this program and all authors – want to get the books available for sale again as quickly as possible in the affected territories. I feel confident Amazon is working hard on the problem. They will be giving us an update end of day tomorrow. We will let you know when the problem is resolved. In the meantime, you can certainly suggest readers purchase from the EC webstore (it’s then easy for them to convert the file onto their Kindle).

See what I mean about promoting buying from their own web store? When they’ve burned customers before by not restoring their books (like mine) after migrations? Where there’s no external audit information available for authors to discover in the case of hinky royalties? Yeah, no.
As far as Raelene’s statement goes, yes, Netherlands, Australia, and India are the three most recent Amazon stores. The next-most-recent is Mexico. However, I find it difficult to believe that Amazon would put a publisher contract in place if they didn’t have the means to use it with certain stores yet.
I’m not aware of any later statements on this topic by Ellora’s Cave, and it’s been going on for more than three weeks at this point.

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

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

• ellorascave

Sep 2015: Ellora's Cave: An Interesting USDOT Finding

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.

Per the USDOT website: > Apart from federal regulations, some states require commercial motor vehicle registrants to obtain a USDOT Number. These states include:

[…]
• Ohio

Per that, it appears that any commercial registration in Ohio requires a valid USDOT number.
Note that this isn’t a USDOT number for the vehicle, but rather for the carrier. So if Ellora’s Cave had, oh, any commercial vehicle registered to the company, they’d need to have a current, valid USDOT number with no Out of Service Orders.
Like, say, if they owned a bus.
It does seem odd, given that the description for Step 63 says that yes, the carrier’s vehicles would be targeted at roadside, and yes, deny registration, that this situation appears to be unaddressed after almost seven years.
There’s a formal process for issuing an out of service order, detailed here. It just strikes me that it’d be the kind of thing that’d be hard to miss.
It’s not unheard of for government sites to be incorrect, though, so I don’t want to read too much into it.

• publishing
• ellorascave

Sep 2015: Ellora's Cave: Tina Engler's Legal Update to the Biz Loop

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

• ellorascave

Sep 2015: RWA Notice Regarding Ellora's Cave

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

• ellorascave

Sep 2015: Ellora's Cave: Defense Pulls a Mic Drop!

So Ellora’s Cave finally filed a status report. (boring)
And Ellora’s Cave filed their Motion for Summary Judgment. (yawn) tl;dr: We didn’t do anything wrong, it’s all lies, we don’t owe six figures. Here, have a sworn statement. Clarification: Note that this is an MSJ against Dear Author’s/Jane Litte’s counterclaims, not the whole case.
The really interesting news is the complete mic drop that’s defense’s Motion for Summary Judgment. (or use this link for the 33mb zip file)
Look, I’ve been getting the pieces of this assembled for y’all for over an hour, and I honestly haven’t managed more than a glance here or there. So I’ll just give some comparative numbers so you can understand how qualitatively different the two filings were.
Like you, I’ll probably read them in the morning.

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

If you’d rather go through the docs one by one or pick and choose, the docket copy I keep is now up to date and everything’s uploaded with (I hope) all the same descriptions as on the court docs.
The most interesting defense exhibit is the 296-page defense deposition #46-9. A few highlights:

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

(will add more bullet points soooooooon)

• ellorascave

Aug 2015: Ellora's Cave: Ann Jacobs's Author Counterclaim

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

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

For. One. Author. (Ellora’s Cave had, last I checked, over 900.)
From pp. 4-5:

By way of example, §10 of the Mutual Favor Publishing Agreement provides that “In regard to all of Publisher’s royalty provisions as specified below, Publisher shall pay royalties based on cover price.”
Under § 10.1 of the Mutual Favor Publishing Agreement, the applicable royalty rate for digital formats of A Mutual Favor is 37.5% of cover price.
Under § 10.2 of the Mutual Favor Publishing Agreement, the royalty rate for print books of A Mutual Favor is 7.5% of cover price.
Notwithstanding the language in the contracts, Ellora’s Cave has stated that it believes it is entitled to calculate and pay (and has in fact calculated and paid) royalties to Jacobs—and, upon information and belief, other similarly situated authors—based not on cover price, but on the actual sales price of the works. […]
Ellora’s Cave has made similar underpayments for most or all of Jacobs’s works, and upon information and belief has made similar underpayments for many other authors.
After complaints about the improper royalty payments, Ellora’s Cave attempted to modify its publishing contracts with its authors, including Jacobs, by unilaterally informing the authors that Ellora’s Cave would begin paying an increased royalty rate (45% or 40%) but pay the royalty rate based on the sales price, which was often substantially lower than the cover price. The net result was that even with a supposedly higher royalty rate, the royalty payments were below those provided for in the contracts.
Ellora’s Cave’s attempts to change the royalty payment structure by unilateral notice is not permitted under any of the Publishing Agreements, all of which contain provisions requiring any modifications to be made in a writing signed by both Jacobs and Ellora’s Cave. The attempts at modification are, however, indicative of Ellora’s Cave’s knowledge that its prior royalty payments were not consistent with the Publishing Agreements.

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

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

So, there you go.

Updated to Add: Link to Courtney Milan’s Piece

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

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

My commentary: I didn’t want to say this until I saw Courtney’s take on it, but I agree with her that this is some badass sabre rattling. I also find it really interesting that nothing was filed far earlier, say in December or January at the very latest.
Why? I think she’s seeing the writing on the wall, and she believes this is the best strategy to get paid, in full or in part, and get her rights reverted. Because if they pay her and revert her work, she doesn’t have a cause of action any more.
It’s a way of jumping the queue in front of other authors, and I think we may see more queue jumping coming up.

• ellorascave
• miscellaneous

Aug 2015: Ellora's Cave: A Whole Bunch of Biz Emails

This post includes the bodies of several emails from Tina Engler to Ellora’s Cave’s business list (hosted on yahoogroups). Note that where there are email addresses listed in the body, I’ve reduced it to the part in the front of the domain name (e.g., website@) to not be a source of spam.

Aug 12: Website & New EC Active Author Group

Date: Wed, Aug 12, 2015 at 7:26 PM
Subject: [ec_biz] a new group for active EC authors & site update
After the past couple days I’m starting to feel like the town crier so (hopefully!) this will be my last post for at least a week 🙂

Website

1. search engine done
2. author pages done
3. made “coming soon” section our current priority as of today
4. new front page after that
5. series search is next
6. adjusting book pages so the cover isn’t stretched out

*any errors for points 1 & 2 should be sent to website@ as they are completed

New Group Loop

This week I’m going to be sending out invitations to a private, closed group for active EC authors! The new group is voluntary and participatory; it’s not an announcements-only loop. The group’s main foci are: brainstorming, blurb help, strategizing, maximizing sales, and maintaining communication. If you are an active EC author with a professional reputation (i.e. no history of making private business matters public fodder) then you will receive an invite so long as you meet one of the following criteria:

1. Had an EC book release within the past 3 months
2. Have an EC book that hasn’t yet released, but has a scheduled release date
3. Signed a contract with EC within the past 3 months and are in good standing with your editor by turning in your revisions/edits on or before the agreed upon due date
4. Are a full time EC employee.

*Please remember this is NOT mandatory. If you receive an invitation but feel you’ve already got too much on your plate to deal with, simply decline it. You will NOT be frowned upon for doing so!! Alternately, you can accept the invite then opt out of individual emails so you can check the loop when time, energy, and desire allows. It’s totally up to you.
And finally, inactive authors who still have books under contract at EC will continue to receive all announcements that pertain to them here on the biz loop. You are not removed from our biz loop (unless you choose to unsubscribe) so long as your books are contracted at EC.
Tina, whose typing fingers are getting sore 🙂
(end email)
Except, of course, quite a few people were silently shoved off of (or never added to) the ec_biz list, so this blog is the place they get those emails. Call it a public service.

August 12th Addendum to Email Contact List

Sent: Wednesday, August 12, 2015 3:38 PM
Subject: [ec_biz] Addendum to Email Contacts
Per Raelene:

1. The main email for authors to use for anything you hadn’t listed, and actually for anything if they don’t remember the other addresses, is AuthorInfo@. Anything they send there (including stuff for contracts, royalties, whatever) will be routed to the right place for them. So if they can only remember one EC email address, that’s the one to use.
2. And for rights buybacks, authors should cc contracts@ when emailing patty@.

August 12th A Final Post for Now

Sent: Wednesday, August 12, 2015 4:22 AM
Subject: [ec_biz] a final post (for now) with a thank you
First of all, I want to thank you for your patience and understanding as we get over this hump. I am humbled and sincerely warmed by the outpouring of positivity and graciousness the overwhelming majority of you have sent our way. You make all the hard work and long nights very much worth it 🙂
Secondly, after speaking with an EC author who’s been with us for a while but who I hadn’t met until recently, I realized that we’ve been far too silent this past year. This person pointed out that the majority of EC’s authors are good, professional people and therefore shouldn’t be punished because of a few bad apples. While it was never our intention to punish anyone, we have come to realize that we have indeed been far too silent over the course of the last year. The bad apples are going to do what bad apples do regardless to whether or not we maintain transparency or cloak ourselves under a veil of silence. Gun shy though we may be, s/he is correct. Therefore we will do our very best to be more communicative on a regular basis.
I often wax nostalgic for the old days when I was able to be 100% transparent with our authors and never once have to worry someone would leak private business information onto public forums and social media. While I realize those days can’t be relived due to sheer growth, I would remind those of you who have been with EC for over a decade that I am the same person now who I was back then. What you see is what you get. I have no hidden agendas and rate 0% in the “poker face” arena. I have always kept my life an open book and that will never change. My goal both then and now is to maximize your profits and make you proud to be an EC author. While the current market has turned the publishing world on its heels, we will continue to reinvent ourselves as we’ve done a plethora of times before. We got through the Borders debacle and bounced back stronger than ever thanks to the business acumen of our CEO, Patty Marks, during a time when many publishers went under. Amazon is merely another bump in the road and, as always, we can and will endure and end up stronger because of it.
Those of you who know me are aware of the fact that I (a) don’t bullshit people and (b) never, ever give up. Because of our small but mighty team at EC, we WILL put you back on the map and make sure you rule over it. THAT IS A PROMISE!!
Again, thank you for your kindness, generosity, and belief in EC. I allowed myself to behave reactively toward the negativity for a year, but that is over. I love EC and I love the vast majority of our authors both new and old. Here’s to reclaiming our stronghold.
Warmly,
Tina
(end email)
A few bad apples? That’s how you’re choosing to characterize authors making you money who are upset about (purported) slow/no pay and/or underpayment?

August 11th Contact List

Sent: Tuesday, August 11, 2015 9:41 PM
Subject: [ec_biz] EC emails
I apologize in advance for inundating you with an uncharacteristic amount of notices! I want to make various issues easy to find by having their own subject lines rather than grouping them together in one large email. I’m trying to become more conscientious where that’s concerned, though sometimes I do forget. But I’m digressing…
VERY IMPORTANT NOTICE FOR YOUR BENEFIT
When you need to email EC please email ONLY the appropriate address and nobody else. Otherwise everyone included in the email occasionally assumes someone else addressed the issue. This happened recently which is why I’m addressing it now.
CONTACTS
contracts@ – new contracts, new contract questions, and rights reversion requests that meet the criteria (sold less than 100 copies in time frame specified in contract)
royalties@ – royalty questions that can only be answered by the accounting department, missing statements (you should ALWAYS receive a statement with each check,) and discrepancies between statements and monies received (this is rare, but it does occasionally happen.) For the next couple of months please only email royalties@ for missing statements and discrepancies between statements & monies received. This kindness on your behalf is greatly appreciated as Courtney is working 7 days a week (literally) to catch up.
patty@ – questions pertaining to rights reversion requests wherein the author knows they don’t meet the criteria for free reversions and are asking for a buy-back price. As an FYI, the prices are straightforward and are based on anticipated loss of income over a 3-year period. (I’m pretty sure it’s 3 years, but I’m not 100% on that and I don’t want to wake her up to confirm!) Point being, we don’t hijack the prices. Each and every request is calculated the same way.
website@ – issues with the new site.
jaid@ – when you have exhausted yourself of all proper channels and feel that your question and/or issue hasn’t been sufficiently addressed then I’m the one to contact. (It doesn’t matter which department this pertains to.) I’m also the person to contact for anything that has to do with marketing, creative PR, or just project ideas you have that would require me to give the green light before proceeding. Example: authors X, Y, & Z would like to put together a niche anthology (which we don’t typically do anymore) bc they think it has sales potential based on (insert reason.)
josem@ – social media issues/questions/ideas.
IN CLOSING
It’s important we work together; emailing only the proper address is a vital part of that. It’s especially crucial for general email addresses (contracts, royalties, website) because multiple people access those boxes so never assume you’re reaching one specific staff member.
Thanks in advance!
Tina
(end email)
“We don’t hijack the prices.” I disagree. So does Victoria Strauss:

One last thing: a publisher should not put a price on rights reversion. Charging a fee for reversion or contract termination is a nasty way for a publisher to make a quick buck as a writer goes out the door. A termination fee in a publishing contract is a red flag (for more on why, see my blog post). And attempting to levy a fee that’s not included in the contract is truly disgraceful.

August 11th Updates

Subject: [ec_biz] updates
To: ec_biz@yahoogroups.com
We’re extremely and genuinely sorry for the delays you’re experiencing. I understand and empathize with your needs and worries, but I promise it’s getting better. Please hang in there while we catch back up, which we will and always do.
As an FYI: the fewer emails sent to accounting, the faster we can get royalties processed and mailed. Courtney recently had a family emergency and went to [visit a family member with a hospital emergency], but she is back in Ohio and working feverishly to catch up. I understand this is not your problem, but I hope you can lend your understanding.
Sincerely,
Tina
(end email)
Note that I edited out the specifics of what Courtney’s family emergency was to protect the privacy of that family member.
You know what? Rick and I have both worked as temps for Accountemps. There are plenty of temp/contract agencies that could have covered this.

• ellorascave
• publishing
• writing

Aug 2015: Ellora's Cave: Headquarters for Sale and Lawsuit Update

I got word about a week ago that Ellora’s Cave’s headquarters were for sale. This building isn’t owned by EC, but by sister company Brannon-Engler Properties, Ltd. Per Dear Author’s Curious post, one of the things alleged in the Brashear case was that the property was rented to Ellora’s Cave at inflated prices.
I had other things going on, so I’m a little late in reporting on it, but I think you’ll agree it was worth the wait. The other day, I got an anon tip containing Tina Engler’s latest missive:

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

1. Yes, the building EC currently inhabits is up for sale. As we no longer print books and have downsized to boot, it makes no sense to keep such a large facility with 3/4 of it being unused space. When the building sells we will be moving into a commercial area that is zoned for retail; the offices will be in the back and our (upcoming) bookstore will be in the front. We’re actually very excited about this and have been working toward the goal of getting the Home Ave building up for sale for months; it is now (finally) on the market.
2. No, we did not spend “tons of money” on our new website. It was created in-house by Darrell King who is already on payroll.
3. We are not filing for bankruptcy. (This rumor is really getting old.) We are further downsizing where we need to, upsizing where we need to, and getting EC back to where we were before… and then some. This process takes time, but it’s definitely happening. We’ve got several irons in the fire and look forward to furthering the careers of our loyal, professional authors. (More to come on that later.)

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

Additionally, there was another followup from Tina:

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

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

1. First, all authors have agendas. All businesses do too. This is a very us vs. them kind of statement that has no constructive purpose.
2. On the building sale: good for the most part. Tina basically echoed what I said a few days ago on Twitter: they don’t print their own physical books any more, and thus the building is too large a space for their current needs. My only criticism is that this feels like it’s happening significantly later than it should have. My understanding, which may be in error, is that they stopped printing their own physical books around the time of the POD printer lawsuit, which dates to 2011.
   Note that this doesn’t mean EC will stop having print versions of books, just that they will no longer be printing and stocking them in house. Switching to a just-in-time POD production company (e.g., CreateSpace) makes sense. (I’m actually a big fan of just-in-time manufacturing. More on that in a later post.)
   On the other hand, a bookstore? When so many are closing? So, they’re selling off their book storage space so they can move into a smaller space where they’ll need book storage space?
   Ellora’s Cave is not going to get significant foot traffic unless they’re somewhere with really high retail rents. After all, the space they have right now has a front office space that could be a bookstore. It has window space, though too many divided lights to make it a display window. Also, anywhere with a lot of window space will be expensive to heat in winter.
   Also, having worked in a bookstore, I’m pretty sure this will be a huge rude awakening for EC. The US lost ~20% of its indie bookstores between 2002 and 2011. In addition, a bookstore requires continual staffing, and Ellora’s Cave doesn’t have that kind of staffing level right now.
   But, you know, romantic ideals about bookstores. Whatevs.

3. Despite other criticisms about the new website, I think moving to WordPress with WooCommerce on WPEngine is a huge improvement. And, thank God, no more blinding red. Also, they’re using WooCommerce for their shopping cart, and that is what I would have suggested had they asked.
   That said, I’ve given it a few weeks to settle in, so I think I can make some real criticisms now.

   • The way the migration was done killed Ellora’s Cave’s existing SEO (search engine optimization). All the inbound links from everywhere are now broken. When those links bring up 404 errors (page not found), what happens is they then lose the inbound link as adding to the value of that site. They might as well have bought a brand new domain and started there.
     The right solution is to add a bunch of redirects, one for each author and each book. Unfortunately, the tools for doing so on WPEngine aren’t super great because it doesn’t use Apache’s .htaccess format for it.
     There is exactly zero reason that this should be on authors (or reviewers), though.
   • Not migrating customers and their libraries is amateur hour. I can understand libraries taking a while, but then you’d have to shut off e-commerce until you worked the old libraries into the new table structure.
     Here’s my constructive suggestion: if EC can’t migrate people except by hand, migrate people’s libraries in the order they sign up for an account on the new site. It would also be nice if there were some time frame given for when customers’ libraries would be migrated. (And totally unprofessional for them not to be migrated.)
     Over time, that will reduce customer service requests, and it will also give EC a goodwill boost it desperately needs. Plus, many of us—myself included—have bought books off of EC’s website and we’re basically cut off from our libraries. Apparently, this is not the first time EC’s done this; I’m told they also did so when they upgraded to the red site from the previous incarnation.
     Not only that, but Tina was encouraging authors to encourage their readers to buy books directly off EC’s site, so now EC’s throwing those authors and customers under the bus?
     Can you just imagine the outcry if Amazon did this for Kindle books?
     If you want Amazon’s business, Tina, you have to be at least as good as Amazon. Not amateur hour.
   • I know default WordPress search isn’t the world’s best, but visit the new EC site and search on, say, Paris. One of the many titles found has Paris in the title, but not all of those books have the search term even in the description. I don’t know how they managed that, but my WordPress searches don’t work that badly. Logic suggests that author matches and/or title matches should be ranked first, though, and they’re not.
   • There is no information on the site about how to submit to the publisher. That’s probably a good thing, though.
   • Others have noted that there is no physical address. Given that their building is for sale, that may well be temporary, but I’m more likely to do business with a site that actually lists their physical address.
4. While I’m glad Ellora’s Cave isn’t filing for bankruptcy, part of me wonders how much of this is sheer stubbornness. Several people have reported that they haven’t received a check since May, which paid for royalties due up through January.

Ellora’s Cave v. Dear Author Lawsuit Update

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

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

What’s interesting, though is that there’s only been one plaintiff status report (on April 28th, docket item 35) and there have been four defense status reports. Normally, things filed with the court by the parties are a matter of public record, so I’d expect to see them on the docket.
Now, granted, the discovery period is a time when the parties are incredibly busy, but there may not be a lot of court filings. So, from an outsider’s perspective, this can appear to be a very “quiet” period, even though it’s anything but.

• ellorascave
• webdev

Jul 2015: Ellora's Cave: New Kindle Contract and Forthcoming Website

Two things: Ellora’s Cave has a new contract with Amazon for Kindle sales. Also, Ellora’s Cave’s website is currently down, but apparently a new site’s forthcoming. Emails from EC follow, along with minimal commentary from me.
Yesterday, EC’s site was completely offline. Today, they’ve got a placeholder page up, which is an improvement.

Ellora’s Cave Has a New Amazon Kindle Contract

(edited slightly only for formatting reasons)
Sent: Monday, June 29, 2015 2:25 PM
Subject: [ec_biz] New EC Kindle contract
Dear authors,
You hear about it when huge publishers like Simon & Schuster or Penguin Random House are renegotiating their expired Amazon contracts. But that happens to the rest of us too, although it doesn’t make the news. EC’s Kindle contract recently expired, and we had notified Amazon we did not want to renew at the old terms, wanted to negotiate a better deal for EC and our authors.
EC now has a new contract for ebook sales with Kindle, one that we feel will bring more royalty income! [The negotiations are why I have so many more silver hairs and have been mainlining chocolate for weeks. 😉 ] Amazon has a very stringent confidentiality clause, so we cannot disclose the exact details of the terms. This new contract will go into effect early July.
Royalties will be based on both list price of the ebook and the location of the purchaser. Royalty rates will be significantly higher for sales within the US and in our other primary customer bases, and when ebook list price is $2.99 and higher. Almost 90% of EC Kindle sales meet these criteria! For ebooks priced less than $2.99 or sold in other areas of the world, per-unit royalties will be reduced by about 25%–but those are only about 10% of our Kindle royalty income, so this was an acceptable negotiation trade-off.
In light of the above royalty rate changes, EC has reevaluated our ebook pricing structure and is making adjustments to take best advantage of the algorithms.

• Ebooks with a current list price of $2.00 to $2.98 will be repriced to $2.99, so that they get the improved royalty rate. Almost all these books are the older backlist titles whose prices were halved; even with the very slight upward adjustment, they will still cost significantly less than their original list price.
• We will no longer release new books priced less than $2.99. We are making appropriate adjustments in minimum word count and multi-short-story packaging.
• We have calculated that with the new royalty rates, EC can lower list prices a bit and still bring in more income. Lower prices will hopefully encourage more sales, especially since we are strategically dropping each price point into the next lower dollar bracket. For example, ebooks with a current list price of $5.60 will become $4.99, those at $6.50 will become $5.99, and so on. These changes will occur in early July, and apply across the board—all etailers.

The new contract does eliminate EC’s previous exemption to have a cover price on its own webstore that was lower than what we provide to vendors. So the EC webstore is being revamped, will show just the standard new List Price.
The royalty and pricing changes will show up starting with your July royalties statement.
(end email)
Assuming there’s no spin on this, this sounds like a very good deal for Ellora’s Cave and its authors.

New Ellora’s Cave Website Forthcoming

Sent: Wednesday, July 1, 2015 9:35 AM
Subject: [EC newsletter] New EC webstore
From Darrell King, Chief Creative Officer, Ellora’s Cave Publishing Inc.:
Ellora’s Cave is in the process of switching to a new and improved website. It’s streamlined, cleaner, easier to use and tablet/smartphone friendly!
As par for the course, we expect some minor bumps in the road during the changeover. Unfortunately, the restructuring of the store means that the old bookshelf system will not transfer to the new site, but our customer service staff will be standing by to assist you along the way as we transition.
We appreciate your patience as we work to improve your experience with Ellora’s Cave. In order to avoid overloading customer service with web-related issues during the next few days, please send your questions or comments about the website to website@ellorascave.com. We will answer all queries as quickly as possible. Thanks for your understanding and we hope you enjoy our wonderful new online shopping experience!
Darrell King
Chief Creative Officer
Ellora’s Cave Publishing, Inc.
Deirdre’s comment: I hope it’s less red.
Update: the new website is up, at least in its early form, and there is no red to be seen.

• ellorascave

May 2015: Ellora's Cave: Judge Denies @pubnt's Motion to Quash

Today, Judge Adams issued a ruling in the Ellora’s Cave v. Dear Author case relating to @pubnt’s letter to the court in February that the judge interpreted as a Motion to Quash (the defense subpoena to Twitter to determine the identity/identities of the @pubnt account).
From the ruling (note: I’ve replaced Jane Litte’s legal name with her Dear Author pseudonym; other square brackets are from the Court):

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

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

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

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

Let’s Talk About the Subpoena

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

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

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

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

Defense’s list is longer:

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

So why, if, as @pubnt claimed, the only information they have is to help plaintiff’s case, would the defense subpoena Twitter? Taken at face value, that would only seem to hurt defense’s case, right?
Well, if @pubnt is someone(s) who’s not already on the existing defense list, they also may have unprivileged information that can help make defense’s case—or disprove plaintiff’s.
Meanwhile, time for popcorn!

In Related News

1. @pubnt’s letter to the court from February.
2. A PDF of all @pubnt’s tweets.
3. There won’t be a Romanticon this year, but there will be next year. (See next item for source.)
4. Amergina reports on the Ellora’s Cave publisher spotlight event at the recent RT Booklovers convention. I’m gobsmacked at not being able to answer royalty rates or manuscript length questions. Those are…kinda basic. I don’t know who was leading the presentation, but I know Axl Goode, one of the EC cover models who’s also an EC author, was at RT.
5. Speaking of Axl, a few months back I read his first novel, Primal Desire, which is erotic romantic suspense. It suffered from many of the “written by a man” kinds of problems of men’s adventure novels of olde, including having the woman wait in the car (way) while Mr. Alpha Male went in to wail on some Dangerous People. Once, just once, I’d like to see a plotline like that where the evil geniuses go after the woman in the car as the presumably easier target, and have her beat the crap out of them. Mr. Alpha Male returns to the car, vexed he can’t find the people he was expecting to beat up, and Herself is touching up her makeup after the fight, never saying a word about what actually happened.

• ellorascave

Apr 2015: Ellora's Cave: Don't Bet on Black

Every single time I’m convinced the Ellora’s Cave situation can’t take another weird turn (I mean, c’mon, Ebola strippers? What are the freakin’ odds?)—well, let’s just say that I’m rarely disappointed because there’s always something new and strange.
I found out about this side project of Jaid Black’s two days ago, and I can’t help but shake my head repeatedly over it. On the bright side, at least I’m getting my neck exercises in.
Here’s a screenshot of the latest project, Bet on Black Books, which has a header link proudly titled “Self Publish With Us.”

So. Tone. Deaf.

Does Jaid Black have any idea how tone deaf this comes across?
Why would anyone need to “bet on” anything?
If this were a portal for, say, books about gambling strategy—it would be a great site name. As something that’s ostensibly otherwise, though, it’s like you’re supposed to bet on her reputation. Which, when it comes to women’s reputations and betting, it’s just skeevy to me.
Furthermore, expecting customers to bet on Jaid Black’s reputation just seems incredibly strange.
Also, the timing of this is interesting. If you look at the domain screencap further down, the domain was registered a couple of days before the mass layoffs at Ellora’s Cave last August. And this is supposed to inspire confidence to “bet on” Jaid Black?
And yet, at the same time, it’s less appropriative a name than Ellora’s Cave, which also appropriates a second culture of color with its logo. So, um, better? Differently wrong?
I don’t even.

Wait, What, Self Publish?

Basically, it’s an electronic store for books. You know, like Amazon. Except this one’s newly-built with outdated technology on a free website builder with a cart service several of us (who have spent more than our fair share of time with shopping cart services) have never heard of.
Yeah, you also have to sign a contract when you submit.
There are a lot of interesting nuances in the FAQ that are not in the contract.
Things like:

When you buy a book from Bet On Black Books, you own it permanently.

Unlike, say, every single other ebook agreement, possibly making new case law in doctrine of first sale as it applies to ebooks.
Courtney Milan had a few comments as well:

@AlishaRai What. Someone created a storefront for just self-published books and they think they can offer worse terms?@suleikhasnyder

— Courtney Milan (@courtneymilan) April 10, 2015

@AlishaRai Also, you make more on a lower priced book… I guess transaction costs don’t matter? @suleikhasnyder

— Courtney Milan (@courtneymilan) April 10, 2015

@AlishaRai It looks like she just copied her publishing contract without thinking. There’s stuff in that that makes no sense otherwise.

— Courtney Milan (@courtneymilan) April 10, 2015

This one is particularly important as it involves a significant downside risk:

@AlishaRai I mean, she’s claiming the right to prosecute a suit for infringement where she had no exclusive rights. Why.

— Courtney Milan (@courtneymilan) April 10, 2015

@AlishaRai Also. Just don’t do business with a self-publishing portal that can’t afford to have a lawyer look at its boilerplate.

— Courtney Milan (@courtneymilan) April 10, 2015

As a general rule, I suggest avoiding self-publishing portals that don’t use competent lawyers to look over their boilerplate. #notchilled

— Courtney Milan (@courtneymilan) April 10, 2015

(Standard disclaimer : last tweet on behalf of myself and not anyone else etc etc)

— Courtney Milan (@courtneymilan) April 10, 2015

There Are Illegitimate Sites Selling Books Out There

Modest though my own sales are, I’ve found my own books on sites selling them for $—sites that never had any intention of paying me any royalties. These sites are often based on the same kind of free site builders and payment gateways.
Note that I don’t believe Black’s intentions are untoward here, it’s just that, were I a potential customer who didn’t know who she was but happened across the site, I wouldn’t assume it’s legitimate. I admit that the gambling metaphor would be my first red flag.
But there are times when I was buying things in market sectors I knew less well than publishing, desperately wanted something, but didn’t buy it because it just didn’t feel entirely above board.

If You’re an Author, Should You Sell Here?

I’m going to say it: I believe it’s a bad idea to sell your books through this site.
If you want to sell your books off of a web site other than Amazon, you can sell them off your own site, get the money more quickly, not have to contract with another company, and make more money. Oh, and note that the Bet on Black contract does not specify when or how frequently you will be paid.
Let’s say you have a book you’d like to sell for $1.99, and you sell it today (April 12th, as I write this)

And let’s look at the $2.99 level, too:

(Note: Google’s also a book vendor, but their terms of royalty amount are unclear, so I’ve omitted them. I believe they’re in the 52-55% range.)
The whole thing: freebie website builder, cheesy cart system, unexceptional royalties, no defined payment schedule, peculiar legal terms—add up to nope.

So How Hard Is it to Set Up an E-Commerce Store?

This answer assumes that you want to sell directly to readers, in addition to other outlets such as Amazon and iBooks.
If you want to accept PayPal (typical transaction fees of 2.9% + 0.30 for premier and business accounts), then here’s one way to get what you need:

1. A self-hosted WordPress account (varies widely, but I’d be looking in the $12-20/month range)
2. A domain name for said account ($15/yr)
3. Easy Digital Downloads or WooCommerce
4. A theme that is compatible with your storefront of choice.

Because PayPal handles the payment information, you do not need an SSL certificate. The beauty of it: once you set up the site, when someone buys a book from you, you get your money right away.
For very little cash (~$27 initial outlay, same as a WordPress self-hosted site with no e-commerce), you can sell your digital goods, and you can have your own shop. Plus, you can add other things to your little store, too. Like maybe you want to recommend books, and get affiliate commissions on those. Maybe you’re part of a writing group and you want to exchange ad space on each others’ sites.
Without having done it before in WordPress, I found that it took me about 30 minutes to set up either Easy Digital Downloads or Woocommerce for the first time. (Granted, I’m very technical.)
Examples: deirdre.net currently has Easy Digital Downloads on its front page (that will change in a couple of weeks). desamo.graphics uses WooCommerce. (deirdre.net is changing simply because WooCommerce is something I’m also using on other sites, and I’d rather have one ecosystem to maintain.)

Okay, Maybe I Don’t Want to Go That Far

Let’s say you don’t want to fuss with WordPress. You want your own domain, you want a lovely pre-rolled solution.
I’d recommend Squarespace. Fees start at $8/month; with that plan you could sell one product. The next plan is $16/month, which allows up to 20 products.
For two examples of Squarespace author sites, Tiffany Reisz and her husband Andrew Shaffer’s site.(Note that they don’t sell directly off their sites, but they do have different-looking sites from each other.)

Is This Independent? Ellora’s Cave? WTF BBQ?

The domain registration says the registrant organization is Ellora’s Cave, and uses the exact same street address that EC does, even though the bottom of the web page says “Jaid Black Productions.”

Jaid Black Productions is indeed an LLC in Ohio, but I didn’t find a DBA for Bet on Black books. (I have had issues figuring out where the UI is for that, so this may be my fault. It’s been a few months.)
So: I don’t know? Maybe Ellora’s Cave just owns the domain?

One Hilarious Thing

One thing I do find hilarious, though: she’s using the classic 70s typeface Avant Garde for the header.
This is the same typeface that Marc Randazza—you know, opposing counsel in the Ellora’s Cave v. Dear Author case—famously uses for his pleadings.

@deirdresm flattering

— Marc J. Randazza (@marcorandazza) April 10, 2015

Was there no better choice of typeface? Personally, it’s not one I warm to very much, which is why I don’t have the same thinner weights that either Black or Randazza use.

Got Comments? Questions?

I’d love to hear your thoughts. I do have a planned topic about the specific problems of author websites, so questions on that topic will help me formulate that post.

• publishing
• ellorascave

Apr 2015: Ellora's Cave: Tina Engler Compares EC to Rape Victims

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

Sent: Tuesday, April 7, 2015 11:46 AM
Subject: [ec_biz] Rumor Mill 2 (Long)
1) Amazon pays its self-published authors every 60 days; they pay us every 90 days. You can decide on Amazon’s motivation for yourselves.
2) Re: the lawsuit – while we cannot comment on specifics we can tell you that we have not asked for any author names. We have asked for specific individuals by name to be identified in discovery, all of who fall into 1 of 2 groups of anonymous commenters: competitors and/or former EC employees let go with cause. While we are disappointed that some of our authors have partaken in online gossip, and equally disappointed that some of our other authors have stayed publicly quiet while privately continuing to play both sides of the fence, we still have not requested author names. I realize it makes for juicier gossip if we were seeking that info, but such is not the case.
3) We did not “dox” anybody and that accusation is getting quite old. Fact: you cannot file a lawsuit against a person that doesn’t exist so of course the defendant’s real name was in the lawsuit. That said, it was the defendant who posted the lawsuit to her own blog, thereby “doxing” herself. We have never, at any point in time, posted the defendant’s real name and home address. I wish the defendant had granted me that same respect instead of posting my name and address on her blog back when my youngest daughter was 12 or 13 years old for anyone with an Internet connection to see.
4) Re: projection – No one should constantly have to defend themselves and their employees against accusations of wrongdoing that only the accusers have partaken in. It is time to make one thing crystal clear: we are not like the accusers. While hateful, gossipy people cannot wrap their heads around the fact that everyone else doesn’t think & behave like them, we trust that the majority of our authors can understand that.
5) Revisiting points 3 & 4: We are not pubnt. We are not STGRB. We did not and would not “dox” the defendant to her employers. It appears that she’s made quite a few enemies & frenemies over the years… A fact everyone recalls with ease when discussing their anger at her “revelation” but which is conveniently overlooked when it comes to us.
The bottom line: This situation is very old. Until we felt pushed into a corner & given no choice but to file a lawsuit just to clear our name I gave the defendant zero thought. Directly after filing the lawsuit, 95% of my thoughts were consumed with her & simply wondering WHY. Anonymous tipsters pretty much answered the question within a few days so within a week of filing she went down to about 50% of my thoughts. Within a month she was back to zero unless I had to think about her for purposes of the lawsuit.
This is a very long winded explanation as to why it induces major eye rolling in me every time I’m accused of being pubnt or an anonymous commenter or (insert ridiculous accusation.) I am happy to let the courts decide this case. I never wanted it tried on social media nor was I the one who took it there. But will I defend myself, my mother, my employees, & the many wonderful authors of EC who are being targeted on social media? Absolutely. I will never relent.
To the overwhelming majority of authors, especially those who have remained loyal to us: I am SO sorry you are being dragged through this. I am SO sorry you fear being publicly targeted if you say anything positive or even neutral about EC. What’s being done to us is being done to you & we get that. The only thing I can ask of you is to continue exercising patience while this plays itself out because dropping the lawsuit is not an option. I get that you just want this to go away, but asking us not to defend ourselves feels, to us, like asking a victim of rape not to testify against his or her rapist because of potential social backlash. Only a couple of you have come to us with this plea, but I felt it should be addressed to all of our authors in case others were thinking it. It’s vital to remember we didn’t start this, that we didn’t go online & trash talk anybody, but that we will use any legal remedy available to us to defend ourselves and end it.
I trust everyone had a wonderful holiday. As always, feel free to contact us with any questions.
Tina

Point the First: Amazon Payment Schedule

Amazon does not pay self-published authors every 60 days. Instead, they pay self-published authors every month, 2 months behind. So, sales in January get a royalty statement at the end of March, followed a few days later by the direct deposit/check. In my own case, I received my last statement on March 21 and the money was paid on March 29th for January sales. The previous month was February 20th and 28th, respectively, for December 2014 sales.
E-publishers, on the other hand, are paid quarterly. The fact that Tina doesn’t know the difference is consistent with Ellora’s Cave’s statements about quarterly payments being atypical and confusing.

Point the Second: Ellora’s Cave “Competitors”

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

This is disingenuous. Why? Because competitors means the self-published, including previous Ellora’s Cave authors who are now self-publishing.
The purpose of the courts is not to go on information quests about your competitors.
Secondly, if your purpose was in fact to go after anonymous commenters who were former EC employees let go with cause, then the following is also true:

1. Ellora’s Cave has had a relatively limited list of employees over the years. I suspect it knows all of them. (Including, for example, who commenter “Adam,” purportedly the spouse of a former EC emeployee, is.)
2. If you wanted to go after them, then they could have been added as defendants in the suit. That is typical practice, but that didn’t happen.
3. If part of the point of the lawsuit was to go after them, then why wasn’t it mentioned in the complaint? Sure, there was that one line about anonymous commenters in the wrong place (page 21 in the TRO memorandum of law), but there was no evidence attached in the complaint that there were any anonymous commenters.

So the actual documents submitted to the court disagrees with what Tina’s now saying.
There are those who believe that the comments as a whole were the reason that Dear Author and Jane Litte were sued.

Point the Third: “Doxxing”

Look, I’m one of those people who doesn’t much like the term doxxing, and who thinks it’s overused.
That said, a lawsuit really is the ultimate in doxxing, and not just in the revealing the legal name of a pseudonymous person. It doxxes that person to an entirely different community. Forever.
If I felt this were anything other than a SLAPP lawsuit, I might feel differently about it. So: I disagree with Tina on this point. I do believe that Ellora’s Cave doxxed Jane Litte unfairly.
It’s also incorrect that Jane posted it on Dear Author. It was hosted via an embedded iframe on The Passive Voice. I have also hosted all the lawsuit documents on Dropbox, but only because federal court documents can’t be obtained for free by most people.

Point the Fourth: “Projection”

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

Oh. Please.
That’s such bullshit.

Point the Fifth: Disclaimers

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

1. I still believe that Tina Engler is intimately involved with pubnt. I don’t believe pubnt is (or was) a sole voice, though. I have a shortlist.
2. I’ve never claimed that Ellora’s Cave is STGRB (the ironically named Stop the Goodreads Bullies), but it is noteable that, in October, the first Ellora’s Cave tweet in over a month (which has since been deleted) supported STGRB.
3. As for the harassing letters point, I do not believe Tina, but I am not going to say why I think so.

Point the Sixth: The Bottom Line

What Ellora’s Cave seems to fail to understand was that it was not Jane Litte’s article that turned us against Ellora’s Cave, it was the fact of Ellora’s Cave filing the lawsuit. In other words, Tina has causation exactly backwards.
The bottom line is that this lawsuit is very new. It will probably run 3-5 years, and it’s only been a hair over six months. Tina has previously said that she would like to make case law, and that would lengthen, not shorten, the case.
So it’s not very old, and Tina should be aware of that, having been in a three-year-plus lawsuit before in the Brashear case.
But will I defend myself, my mother, my employees, & the many wonderful authors of EC who are being targeted on social media?
Let’s get an example here so I can understand what you’re saying.

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

So, you’ll be taking Jenny Trout’s side, then. Right?
No?
I thought not.
That’s what I call: a dishonest assertion on Tina’s part.

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

I get that you just want this to go away, but asking us not to defend ourselves feels, to us, like asking a victim of rape not to testify against his or her rapist because of potential social backlash.
Ellora’s Cave does not get to use the fact of my having been raped to justify their (my belief) SLAPP suit against a columnist.
No.
Hell no.
Fuck no.
You know what? Whatever sympathy/empathy I had for Ellora’s Cave just died in a fire.

Loyalty and Business Relationships

Ellora’s Cave isn’t a rape victim. It’s a brick. The brick does not love you.
I’d like to highlight some tweets from yesterday that I think are oh-so-apropos:

If there’s one word I’m getting sick of seeing, it’s “loyalty.” Between authors and publishers, but between readers and authors too. 1/n

— Olivia Waite (@O_Waite) April 7, 2015

Authors sign over publication rights, not speech rights. Point to the “loyalty” clause in any of my contracts, I dare you. 2/n

— Olivia Waite (@O_Waite) April 7, 2015

A publishing contract is a business relationship, creating mutual business interests. It doesn’t compel me to believe everything you say.

— Olivia Waite (@O_Waite) April 7, 2015

People switch publishers all the time, in this business. It’s not a betrayal: it’s a better match, a change in direction, etc.

— Olivia Waite (@O_Waite) April 7, 2015

And no, I haven’t been very vocal about this before now. I believed caution was warranted. I spoke up in authorized channels.

— Olivia Waite (@O_Waite) April 7, 2015

But now it seems that my (and others’) caution is being interpreted as hostility or two-facedness or, ugh, disloyalty.

— Olivia Waite (@O_Waite) April 7, 2015

You do not get to make broad public statements about enemies and haters while asking that we, your authors, remain silent.

— Olivia Waite (@O_Waite) April 7, 2015

You do not get to take legal action with wide free speech ramifications, and scold us when we express hesitance.

— Olivia Waite (@O_Waite) April 7, 2015

All of that, plus the following: the author’s responsibility is to their art and their bottom line. The publisher owner’s responsibility is to increase shareholder value. There are, at all times, various conflicts of interest between any author and any publisher.
End of story.
I don’t fault authors for looking out for their own perceived best interests (including, but not limited to: where they should publish next, and what they choose to share about their publication history and interactions with publishers), and neither should Ellora’s Cave.

• publishing
• ellorascave

Apr 2015: Ellora's Cave: EC's Author Loops Letter

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

1) We have no interest in what goes on in author loops. We don’t even monitor our own let alone anyone else’s. Closed loops are closed for a reason: so authors can vent to each other and support each other. We would never violate your space. If you could find even one credible instance wherein we’ve ever violated authors’ private spaces then I could understand getting worked up, but since no such incidents exist it amounts to worrying over literally nothing.
2) To our knowledge, there are no faulty 1099s out there. The handful of people who had questions emailed us and we responded. All replies to those responses were to the tune of “Ohhh okay. Thanks for the explanation and have a great day!” If you have a problem with your 1099 and do not bring it to our attention then we have no way of knowing. Again, and as was stated in the last email sent to this loop, if you do not receive an email reply within the specified amount of time then just call us at the author number we set up for you (last post) or send us a certified letter because chances are we never received it. To date, we have received one phone call and her call has been returned.
3) Human error and computer error are unavoidable and are going to happen. The walking-on-eggshells climate that has been created by gossips and conspiracy theorists doesn’t allow for either eventuality and it’s getting old very quickly. With over 600 royalty checks going out every month, mistakes are inevitable. Please be in the habit of checking your statements every month. Contrary to gossip, mistakes are actually more the exception than the rule, but they DO happen.
As always, we encourage you to contact us with any questions you have.
Thank You & Happy Sunday,
Tina/Jaid

Point the first: Author Loops

Because no doubt some author loop information has become discoverable (see Courtney Milan’s kboards post here), there’s always the possibility that, even if Ellora’s Cave had no intention of invading the privacy of author groups, if they need to make their case based upon some of that information in discovery, I believe they will.
However, I have zero information as to whether or not that will, in fact, be necessary.
I’m one of those who doesn’t believe in premature optimization of anger, aka “don’t borrow trouble.” I think we should wait and see what happens.
That said, I find it difficult to reconcile the above statement of Tina’s with the stance in the lawsuit paperwork about anonymous commenters—many of whom were authors.
To refresh memories, that statement (which can be found on p. 21 of this document) says:

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

If that’s Ellora’s Cave’s stance, then why wouldn’t they be interested in discovery on author loops?
Therefore, my feeling is that Tina’s statement is meant to appease authors, but is not reflective of the reality of having initiated this lawsuit, nor the stated aims of the lawsuit.
(Though I still maintain that the lawsuit may ultimately be about Adam’s comments on TCCoEC.)

Point the Second: 1099s & Errors

Given Lolita Lopez’s story about last year followed by the August layoffs, several people were hoping there wouldn’t be big issues with this year’s 1099. To EC’s credit, that hasn’t seemed to happen. Julie believed she’d had one, but tweeted that she was in error.
The only other 1099 issue I’ve heard of was co-authors receiving 1099s for different amounts, but I believe they’d also received checks for different amounts. It’s been a LONG time on Twitter, and it’s not easy to look back for the underlying information.
As Tina says, errors happen.

Lolita Lopez Update

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

Last week, I learned that emails from Ellora’s Cave that were meant for me never reached my inboxes. They were sent to someone else in the company’s headquarters who–curiously–never forwarded them to me or let the sender know they had gone to the wrong place. So, for six months, I needlessly stressed over something that could have been fixed with one or two quick conversations.
On Tuesday morning, Patty Marks, CEO of Ellora’s Cave, offered a very, very gracious compromise on the unwritten spec contracts for Grabbed books 4, 5, 6, and 7. These books and the rights to them and the Grabbed world are back in my hands. I can’t promise that you’ll see Raze, Terror, Torment or Cipher’s books this year (not with all that’s going on with my heart) but I will write and publish these books.

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

• ellorascave

Mar 2015: Dear Author: More on Jane Litte/Jen Frederick

I’ve been teasing apart the feelings around Dear Author’s Jane Litte revealing herself to be romance author Jen Frederick, and I’ve been reading a lot of comments around. I’d also like to thank Olivia Waite for her comment on my last post, which was super helpful.
I’m also being distracted while writing this post by one of the entertaining and beautiful black squirrels we have in our yard. I’m still running on less sleep than I need, but sometimes that’s the best time to access feelings.

First: What I See As the Big Ethical Question

There are many, but this one’s the biggie, I think:
How much of what was posted in the Curious Cave article was told to Jane Litte (voluntary disclosure) vs. Jen Frederick (involuntary disclosure)?

Lawyers Are Not Magical Beings Who Know All About the Law

I’ve seen this said over and over and over that Jane, being a lawyer, must magically know something specific about the law.
I can only speak to this via analogy.

1. I’m a software engineer who’s been paid to write programs in 26 different computer languages.
2. Some of that software (okay, a very small part) has been launched into space.
3. I know how to write anything in software that I’d like to write. That doesn’t mean I’d have the best, most efficient, most beautiful code. Nor does it mean that I wouldn’t have to do any research. Only that, given any software problem, I could write a solution to it if I felt interested enough in doing so.
4. I have an M.S. in Computer Science from a respected university.
5. Yet, despite that amount of skill, there are fundamentals I know I’d have to look up. For example, I personally hate writing sort algorithms. It’s one of those “(pretty much) everyone goes through this during a CS degree” things that I didn’t bond to. Fortunately, the reference work (by Donald Knuth) on the topic is, at any given moment I’m at my desk, at my right hand. No, not because I need it to write code, but because I’m actually using it for story research.

Similarly, there are a lot of basics topics that lawyers train on during law school. Law school is incredibly broad and far reaching, like a general humanities degree is. There’s a limited amount of specialist training after the first year.
Still, the expectation that anyone who’s a lawyer must know X about the law is a bit like saying I must therefore know everything about sort algorithms. Or that any American with an English degree must necessarily be an expert on Mark Twain.
Even more than software or knowledge about writers, legal knowledge is incredibly specific and can be outdated quickly. Jane practices in an area of employment law (worker’s compensation) likely removed from civil litigation discovery issues.

Can Authors Be “Just” Readers?

First, I don’t like the word “just” I’ve been seeing in some contexts, as though readers are somehow lesser than authors. Nevertheless, I’ve only had one cup of coffee so far today, so I’m starting there.
This is an ironic mistake for me to have made, but somehow I missed that most of the people speaking up about Jane/Jen’s revelation are readers rather than writers. That they feel like someone is no longer representing their interests. Further, after Sarah Wendell’s post, I suspect a lot of readers won’t be trusting that site, either.
I got started writing in part because I was a fan of Lawrence Block, and I ran out of novels to read, so I started reading his non-fiction. One of the things he’d said is that he didn’t review books because he wouldn’t want to feel compelled to be honest. That it could imperil friendships with other authors.
It’s not something that happens immediately upon becoming an author, though. For years, I didn’t really understand Block’s point—until I read a book from an author colleague I liked and found I hated the book. Then I got it.
At that point, I could no longer be “just” a reader, but that point didn’t happen immediately. Arguably, it can happen a lot sooner in this Internet age—I started submitting fiction more than twenty-five years ago.
The other reason I missed it is that there’s not an equivalently large site in SF/F for readers apart from the magazines. (I’ve always considered Locus more a professional magazine focused on the industry insiders than readers per se.) Part of that is the incredible divide between various parts of SF/F writing and fandom. I don’t know whether SF/F is more divisive than romancelandia, but it sure seems that way to a relative outsider. Let’s just say the challenges of the genres are different and leave it at that.

Courtney Milan Has a Great Point

Link to Courtney Milan’s Comment (comment #210), which I’ve quoted in full below:

Look, there’s a reason I haven’t said much. I’m still untangling things. There are a lot of things that I need to untangle. I’m sorry that’s not convenient–I conveniently wish I could untangle this easily, too.
But here is one thread of about 45 tangled threads that I think I’m finally clear on: There is an intersection between Jane being on author loops and the lawsuit.
Everything that crosses Jane’s eye about Ellora’s Cave is discoverable by Tina Engler–someone who has allegedly inflated the 1099s of former editors who testified in the suit in retaliation for their testimony, an action that will cost them time and money to correct. A lot of authors–and I mean a LOT–are being very cautious about what they say because they don’t want to be retaliated against. I understand that worry and I’m not going to tell people to put their careers on the line when they’ve got a living to make.
Now we come to those private author loops. Because that’s where we do a lot of processing behind the scenes, including processing of the questions regarding the EC suit. On private author loops, authors have asked each other questions like this: Do I say something in public? Is it worth the risk? They still have six of my books, and they’re still paying me and I need that money to pay rent. Or, maybe the calculus goes, They haven’t paid me yet but I think they will and I can’t afford not to get it. I can’t speak up.
Ellora’s Cave is going to ask for discovery of any and all communications received by Jane in any form regarding Ellora’s Cave. If Jane was on any of those loops? That stuff is discoverable. Even if Jane as Jen didn’t respond or instigate the discussion. Even if she never used the information.
It is a huge risk to speak frankly in front of someone who may be compelled by court order to report your speech to the person you are talking about. There’s even the risk that, as a result of that speech, you may be compelled by subpoena to testify in court. These are risks that are vastly different in kind than the risks authors normally assume–and Jane spent six months on authors’ loops not disclosing that a court could compel her to put everything said in front of her about Ellora’s Cave in front of Tina Engler.

Apart from the quibble that the 1099 thing (see this post from Lolita Lopez) was Ellora’s Cave, not Tina Engler as an individual—yes.
However, I’d argue that the potential discovery problems occurred because Jane’s “industry journalist” hat got mixed in with the author hat, not because her reviewer hat did. As I said yesterday, I’d argue that the industry journalist hat offers the greater overall conflict of interest in this particular case.
It’s also perfectly normal to process via talking to each other, and, precisely because writing’s a lonely profession, that’s commonly on mailing lists with other writers. Also, it’s going to take me quite a while to untangle this too.

Jessica Clare on Jane Litte’s Announcement

Jessica Clare, aka Jill Myles, has blogged about Jane Litte’s announcement. It does answer an outstanding question I had (whether Jessica knew of the Jane Litte identity).
While I am totally fine with both of them loving each other’s works and being friends, I’m still uncomfortable, for reasons I haven’t totally unpacked, with Jessica having brought Jen into inner circles without giving others a heads up as to her other identity.
I just discovered that I’ve been on an author loop where Jen Frederick was as well. However, she left that group quite some time ago.

Jen Frederick’s Undeclared

I started reading Jen Frederick’s permafree book, Undeclared, when I couldn’t sleep night before last. I read about 10% of it then, then read another 10% last night. (I’m behind on two books I need to put more energy into reading, but I also was in no shape to read either of those.)
For whatever it’s worth, I’m enjoying the book. Granted, new adult romance is my personal catnip.

• ellorascave

Mar 2015: Dear Author: Pseudonymous and Anonymous Speech Issues

I’ve thought a lot about anonymous and pseudonymous speech over the years, and I have to admit that the outrage to Jane Litte’s outing herself as Jen Frederick has me scratching my head.
I’ve got a long history with pseudonymity, and I used a pseudonym long before I became a writer. Back in the 70s and early 80s, I used the pseudonym Harfesta online, partly because someone was already using Deirdre as their pseudonym (which frankly cheesed me because it’s my given name).
I’ve used pseudonyms in various places where it was the expectation, and I’ve used pseudonyms in publishing since not long after my start (but long before Google) simply because it was a contract requirement.
In 94-95 on alt.religion.scientology, I used an open pseudonym (Deeny, which was related to my AOL account name) as well as my real first name. I also used anonymized speech through the late anon.penet.fi (a two-way anon remailer) as well as outright anon speech, back in the days when you could push email through an anon gateway and have a reasonable expectation it’d be received on the other end.
I haven’t used truly anon speech since then.

Anonymous Speech: Peer vs. Non-Peer Relationships

But in most circles where there are pseudonymous or anonymous speakers, those speakers are generally peers, e.g., people on a web forum.
What’s fascinating about the romance community is that there are a number of people known full-time by pseudonyms, and people may have multiple pseudonyms operating in different segments of the romance community at the same time. Some of these are “open” pseudonyms, like Jennifer L. Armentrout’s J. Lynn (or, in science fiction, Harry Turtledove’s H.N. Turtletaub for his non-SF historicals). The open pseudonyms are typically needed because of bookstore computer systems—not wanting to cross the marketing streams, especially where sales are expected to differ significantly. That way, one bad book won’t tank both of your careers.
A number of people are known by closed pseudonyms too, though, and some are probably known by both open and closed at the same time. (One could argue, given that Jane Litte’s legal name was used in an article years back, this is true for her.)
But relationships with editors, well, we expect them to be known by their “real” names. So I’ve wondered if part of the backlash about Jane’s/Jen’s revelation is delayed backlash about Jane Litte having been a pseudonym in the first place.
I’m coming from the sf/f world, where a higher percentage of people seem to use their real names (though that may just be the apparency), and I’m just shaking my head at the irony of some of the comments over on The Passive Voice article linked in my last blog post on this topic: using a pseudonym to complain about pseudonymity per se would be funny if this weren’t such a serious topic.
To be clear, I’m not ignoring the ethical issues relating to disclosure or transparency. They are there, and some of them don’t make me happy.
Personally, I’m wondering why there’s a bigger reaction to there being a reviewer in author spaces than an industry journalist in author spaces. That seems the potentially larger conflict of interest.

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

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

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

Some Other Links

• Sarah at Smart Bitches, Trashy Books has a great Q&A session, including answering issues relating to the ECvDA legal fundraiser.
• Kat on Bookthingo has a great article and some great links.
• Ceilidh on Bibliodaze also has a great piece with more links.
• I also wanted to make sure you didn’t miss azteclady’s piece on Her Hands, My Hands, which also has a lot of links.
• And, finally, EC author and DA legal fund contributor Olivia Waite has a great piece.

• ellorascave

Mar 2015: Ellora's Cave: Royalty Statement Missing Column

When I looked at Cat Grant’s statements from Ellora’s Cave (link to one), I noticed that the statement contained the following columns:

1. ISBN
2. Book Name
3. Book type (e.g., ebook or paper)
4. Store (e.g., Amazon UK)
5. Per Unit (which I interpret to mean the amount received from EC from that vendor for that line item per copy sold)
6. Quantity Sold
7. Total Received (5 times 6)
8. Royalty % (which is not shown as a percentage)
9. Royalty paid (7 times 8)

That’s missing a very important column to be able to audit the royalties received. I happened to mention this to someone last night and, well, mind blown.
Sale Price at the vendor in question.
Sorry I didn’t think to post about it earlier. I’m one of those people who notices holes in things, and I kinda forget that other people don’t always.
Here’s one of my royalty statements.
Note the second column: Price, meaning the suggested retail price for a book, or the price at a given vendor.
That’s absent from Ellora’s Cave’s statements.
So, what you can’t see on EC’s statements are what the spread between price (for a given vendor) and “per unit” are. Meaning: how much, as a percentage of the price, is Ellora’s Cave actually receiving? (Or claiming to receive?)

1. Is that spread in line with industry norms?
2. Is that spread consistent from month to month?
3. Has the price changed over time?
4. If so, has the spread followed those price changes?

Without the price information, you just can’t determine that.
Ellora’s Cave apparently figures that that’s none of its authors’ business, and they should not worry their collective pretty little heads over it. Personally, I disagree.

Then There Are Worldwide Pricing Issues…

I’ve previously mentioned EC’s distribution issues, but that also feeds into the point about price, as each market may or may not have a different price for an Ellora’s Cave title. On top of that, I only looked at US markets in that post; there are many, many more.

• ellorascave

Mar 2015: Ellora's Cave: Jaid Black/Tina Engler Flounces off Twitter

Ellora’s Cave founder Tina Engler (pseudonym: Jaid Black) flounced off Twitter after being called out on her Thomas Jefferson/Sally Hemings beliefs (that it was a romantic relationship and the two were married) and her transphobic comments.
Yesterday was quite the day. Too bad I screencapped the wrong stuff, missed half of the best stuff, and lost bandwidth entirely just as @pubnt returned.
The Anne Rice Facebook post issue was still going sideways.

The Thomas Jefferson/Sally Hemings Issue

So there’s a new book (short story length, apparently) about Thomas Jefferson and (his slave) Sally Hemings and their BDSM “relationship.” It’s paranormal.
Jaid Black/Tina Engler got involved in this one.

WHAT IN THE ACTUAL FUCK? “historical context of the times” It’s called rape. 200 years ago IT WAS STILL RAPE! pic.twitter.com/jtyNyjdGhp

— Jeanne (@fangirlJeanne) March 11, 2015

#whitepeoplestop pic.twitter.com/7TRCtavTyC

— Alisha Rai (@AlishaRai) March 11, 2015

And so did Jenny Trout, who doxed the hell out of it far more than I could on limited internet time/bandwidth while away from home.
The earlier start to this is last week’s Stephanie Dray incident, covered by Jeanne here and Aya de Leon here. Both cover a lot of similar ground, but both are worth reading. Updated to add this link: Roslyn Holcomb? What she said.
Today’s piece that ties all of these things together, though, complete with a neat little bow, is this one from Moonlight Reader:

And that, my friends, is the hill that Anne Rice has chosen to die on. She hates Jenny Trout so much that she will support that crap over Jenny. And she hates the “bullies” so much than anything that they think is bad, she must go on record as calling good. Even if that thing that is “good” is a disgusting rape fic about a 14-year-old black enslaved person who was raped by her 44 year old white owner for decades.

And, in related news:

Anne Rice’s pro STGRB thread on Amzn was deleted; apparently targeting customers for an attack is NOT OK. #notchilled pic.twitter.com/W6waHTAvsD

— Karlyn P (@KarLyn_P) March 11, 2015

Getting Back to Thomas Jefferson for a Moment…

About Thomas Jefferson and his slaves: the Marquis de Lafayette bequeathed TJ money so he could afford to free his slaves. TJ didn’t.

— Deirdre Saoirse Moen (@deirdresm) March 11, 2015

Correction: it was Thaddeus Kosciuszko.

@deirdresm @smscotten I looked it up. The money was from Thaddeus Kosciuszko. http://t.co/qpaHZXshTV

— At a Glance Romance (@ataglanceRMC) March 12, 2015

Transphobia

First, let’s have a trans* man speak, shall we?

Trans people fight “Bathroom Bills” with restroom selfies in #WeJustNeedToPee viral campaign: http://t.co/9gJXsPhpsL pic.twitter.com/1RW8Z5LfmQ

— Logo TV (@LogoTV) March 12, 2015

Jaid Black/Tina Engler also showed her transphobic ass yesterday.

@courtneymilan @suleikhasnyder this was my favorite part. pic.twitter.com/cefaq2tAga

— Alisha Rai (@AlishaRai) March 11, 2015

…and…

Don’t say you’re 100% for trans rights when you think this is the definition of being trans. pic.twitter.com/UrrE4YPxEW

— Courtney Milan (@courtneymilan) March 11, 2015

…and…

TW for transphobia: Don’t tell me you “100% support trans rights” when you liked this post on Facebook. pic.twitter.com/9k81x9iuQM

— Courtney Milan (@courtneymilan) March 11, 2015

There’s more, but I didn’t screencap it all.
First: what Courtney said.
I wrote a piece last year about my evolution in thinking about transgender folks. About three decades ago, when I first learned about trans issues, pretty much everyone was railroaded into being pre-op or post-op.
The trans* community doesn’t all fit into neat categories that cis people like Tina Engler/Jaid Black define, though. Nor should they.
Hell, Jaid’s definitions don’t even cover a lot of the biologically intersexed, which my husband covered rather well in an essay on the definitional problems of “man” and “woman”. While this was written to point out how flawed Prop 8 was, every bit is just as true today.

And then the Flounce.

Tired of being called out (for good reason), Tina Engler decided to delete the @JaidBlack Twitter account.

• racism
• ellorascave
• lgbt

Mar 2015: Ellora's Cave: Tina Engler Claims I'm Pubnt

Yep, you heard right. Given that Tina Engler says that, I propose a wager.
As a comment on Anne Rice’s Facebook post, Tina Engler/Jaid Black said the following:

Well to be honest Anita, my mom & I believe it’s [@pubnt is] one of you. That D— who keeps a color-coded spreadsheet tracking my every breath lives in San Francisco. I’ve never been to SF & don’t know anyone who lives there. (Purposefully edited so I don’t get accused of more “doxing.”[)]

Look, I’m pitifully easy to dox, and I do not live in San Francisco. Further:

1. I’m not @pubnt, never have been.
2. I still believe that @pubnt is solely or mostly Tina Engler.
3. I believe, if it’s not Tina, that Tina and Patty Marks know perfectly well who @pubnt is—which is why Ellora’s Cave didn’t add @pubnt to their witness list like the defense did.

Personally, if someone not affiliated with my company started tweeting about business and legal strategy in the middle of a lawsuit, I’d be all over that. Which is one reason why it’s so curious Ellora’s Cave has not been.
The color-coded “spreadsheet” (sic) I keep is the court case docket that has nothing to do with Tina personally. If Ellora’s Cave and/or Tina Engler didn’t want me to keep a color-coded docket, maybe they shouldn’t have sued Dear Author.

Ellora’s Cave, I Call Your Bluff

So here’s the deal, Ellora’s Cave and Tina Engler/Jaid Black.
If you’re so convinced that I’m @pubnt, feel free to subpoena Twitter asking for a comparison of @deirdresm’s and @pubnt’s IP addresses and identifying information.
I’ll waive any privacy issues at the Twitter end on one condition….
That, when you’re proven wrong, you agree to do the following:

1. Put on the top of Ellora’s Cave’s home page in the first slider right up at the top an apology to me and include a link to my Ellora’s Cave posts, and
2. Do the same on the top of Jaid Black’s website and blog, and
3. Both for a duration of no less than four months and thirteen days (the amount of time we had to endure @pubnt’s nonsense). Longer if @pubnt ever shows her face again.
4. Failure to do so will cost $500 per day (plus collection and/or court costs) per site for every day you don’t display said apology.

So, Tina Marie, how about it?

• ellorascave

Feb 2015: Ellora's Cave: Double Entry Divas

I love the Internet.
Two days ago, I asked if anyone saved this Ellora’s Cave video that was tweeted by @CaveChaos on July 30th.
As with many “disappeared” videos from YouTube, it has found its way onto the Russian site Rutube. However, you needn’t know any Russian to understand the meaning of this video….

• A riding crop.
• Fanning themselves with Monopoly money.
• Deciding to pay the electric bill.
• Mocking the electric bill.
• Crying when the books don’t balance.

It’s pretty clear that Courtney is Courtney Thomas, Ellora’s Cave’s CFO.
However, it’s not clear if “Sammy” is Sherry Herchek, the Assistant Controller? Or someone else?

• ellorascave

Feb 2015: Ellora's Cave: The Sunken Queen

Well, New York Magazine published an article about Ellora’s Cave founder Tina Engler (aka Jaid Black), titled “Did Amazon Sink the Queen of Online Erotica?” A copy of that article can be found here.
The article made me laugh out loud—and not always in ways the article’s author, Phoebe Reilly, intended. Though there were some intentional laugh-worthy lines in there. Tina says, in a blog post about the article, “I’m Done with the Media.” (I was startled at one claim that Tina says is untrue.)

The Real Sinking of Ellora’s Cave’s Amazon Revenue

First, I realized I used a buzzword a couple of times, and I want to define it: “organic” search means search results based solely and only on relevancy rankings. The opposite is “paid” search, e.g., the right side of Google pages.
One of the things that determines organic search at Amazon is keywords. These keywords aren’t shown to buyers, but they drive the search box. This is something the indie crowd has taken to heart and excelled at, but it’s alleged that EC doesn’t do anything with keywords at Amazon.
Rick and I were talking about this last night, and he’s a smart guy. He’d just read the following in the article:

It wasn’t until late 2013 that she noticed a plummet in sales via Amazon, the company’s biggest distributor. It had been pulling in roughly half a million dollars a month, but suddenly that figure dropped 60 percent.

He said, “You know, a sudden shift implies a technology change. If it were gradual, over a period of six months, it would be a market change.”
He’s right.
If your competitors gradually got better than you, it would be a change over time, but if Amazon suddenly figured out that keywords should be weighted more heavily, those using them poorly—or not at all—would have their organic search visibility tank at Amazon.
And, btw, only at Amazon, as they are the the only book vendor who drive search via keywords.
If one’s writing erotica, keywords can (and should be) what real people would use to describe what they want to read, not code phrases writers use. Given what sells from indies on Kindle, I’m guessing there’s a lot of fucking going on in those keywords of successful authors.
That said, I’m not sure organic search and technology shifts explain the phenomenon (mentioned in the article) where the top hits for a search on “Jaid Black” are different authors (and not even ones published by Ellora’s Cave).
There is a prohibited keyword practice of using other authors’ names in keywords. Several authors have been banned for that, and some books have just been taken off the market.
Which I’m not saying is a factor, just that it’s theoretically possible.

On the Bright Side, There May Be Buoyancy

If my hypothesis about keywords is correct, then it’s relatively easy to fix. It takes a whole lot of time, because keyword research is not simple. It’s not a fast skill to acquire, and insight into Amazon keywords takes practice.
Obviously, a house with as many books as Ellora’s Cave has would have to triage the project into phases and stages, and it’d make the biggest difference to authors who were selling well before but who lost more market share relative to other EC authors.

I Also Can’t Let This Slide

Queen of Online Erotica my ass.
Did she help break through the market? Absolutely. Queen? NFW.

Need to Do Keywords Yourself, But Feel Overwhelmed?

I know a lot of people reading here are writers, and many of you indie publish, too. Your ears may have perked up at the mention of keywords.
Stay tuned, it’ll be a day or two yet.

• ellorascave

Feb 2015: Ellora's Cave: Defense Objection to Quash Motion

Today’s Ellora’s Cave legal update includes the defense’s objections to @pubnt’s Motion to Quash the Twitter subpoena.
To recap where we are: in their initial disclosures, defense in the Ellora’s Cave v. Dear Author case filed their witness list, listing Twitter account @pubnt as one of the witnesses:

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

@pubnt filed a response with the court, which the Court interpreted as a Motion to Quash. My blog post and Courtney Milan’s blog post on the subject.
Perhaps the most amusing of @pubnt’s reasons in her letter to the court is this (note: I substituted Jane Litte’s pseudonym for her legal name):

The Defendant, (Jane Litte), calling us as a witness for the Defense is perverse. If you peruse our Twitter account you will be able to verify every legal argument and statement we have put forward is against the Defendant’s case. You will see clearly that there is nothing we have stated that will support the Defense’s case and everything we have said defeats the Defendant’s case. Thus the Defendant has no right to call us as a defense witness and her attempt is perverse. Thus you further have proof that the Defendant’s only ulterior motive in calling us as a witness is to use your court to seek out our identities in order to victimize, harass, stalk, defame, and libel us as she has done many times before, purely for daring to say positive things about her target, the Claimant.

I can’t even begin to tease apart all the false assumptions here, but let’s start with why I believe @pubnt’s testimony is of interest to defense:
As I see it, @pubnt breaks down to at least one of four classes of people:

1. An Ellora’s Cave insider using @pubnt to conduct an asymmetric information propaganda campaign.
2. A close confidante of an Ellora’s Cave insider using @pubnt to conduct an asymmetric information propaganda campaign.
3. An internet troll simply being provocative for attention. (Initially, I believed @pubnt was solely in this class.)
4. Someone who needs mental health help.

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

Defense’s Filings Today

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

Also, in paragraph 2 of the Motion @pubnt claim that “[i]f you peruse our Twitter account you will be able to verify every legal argument and statement we have put forward is against the Defendant’s case. You will see clearly that there is nothing we have stated that will support the Defense’s case and everything we have said defeats the Defendants’ case.” See ¶2 of Motion. Again, these anonymous authors are not mere spectators. Either @pubnt are insiders at Ellora’s Cave Publishing, Inc. or have received inside, nonprivileged, information.

The filings also included a copy of the Twitter subpoena, dated January 27th, with a response due by February 6th, and a selection of @pubnt’s tweets.
Note that @pubnt’s letter to the court was dated February 7th, the day after Twitter’s response was due.

What I Think Will Happen

I’d been saving this information from another case I ran into recently. Two Twitter accounts, @FakeUli and @NotUliBeringer, were Does (as in John Doe) in a case filed by MUSIC Group, who wanted to uncover their identities.
Like the Ellora’s Cave case, the primary subject matter is defamation.
The Music Group v. Does case was brought in Washington state, which is still in the same appeals circuit (9th) as Twitter’s home turf. Yet, Twitter insisted that their local district court (California’s Northern District, based in San Francisco) rule on the subpoena.
Here are the three most relevant documents:

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

So, six weeks beginning-to-end.
The last document is worth reading because it talks about the right to anonymity vs. the right to serve defendants in a lawsuit. One of the reasons the motion succeeded was the narrowness of the request (the identity needed to be known to serve the defendants in a lawsuit).
I’m not sure DA’s Opposition Motion needed to be drafted that narrowly, given the @pubnt’s claims of knowledge about EC’s inner workings, though.
I’d personally have picked different tweets to highlight:
Apparent inside knowledge of the alleged accounting system crash, e.g.:

@ataglanceRMC ..catching up with the backlog from the accouting system crash now recovered… #notchilled

— Pub Net (@pubnt) February 16, 2015

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

@ataglanceRMC ..and paying royalties close to monthly when contractually it is due quarterly, with its surplus of cash. #notchilled

— Pub Net (@pubnt) February 16, 2015

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

@tejasjulia @CatGrant2009 @ataglanceRMC EC wouldn’t want a sale. Only a merger. #notchiiled

— Pub Net (@pubnt) January 17, 2015

@ataglanceRMC A merger is not a sale. JB & PM will be running EC as an imprint of the big pub. #notchilled

— Pub Net (@pubnt) January 16, 2015

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

@trista_michaels You will be when the commenters’/tweeters’ case commences at the end of the DA case. #notchilled

— Pub Net (@pubnt) January 31, 2015

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

• ellorascave

Feb 2015: Ellora's Cave: Double Entry Divas • Did Anyone Save This Video?

Did anyone save this video?
Here’s the description I have: Courtney Thomas (Ellora’s Cave’s CFO) and Sherry Herchek (Assistant Controller) made a video making fun of Ellora’s Cave’s accounting system. They play Monopoly to decide what bills to pay. At the end, they cry because they can’t get the books to balance.
The original video was at this YouTube URL but is not there now.
However, there is a screencap and link here on ShowYou, which validates the tail part of the original YouTube URL.

Even More Interesting: When This Was Posted

Apparently, this was posted shortly before, like a handful of days before correction: less than three weeks before, the big August layoffs at Ellora’s Cave. For further context, the layoffs took place about a month before Jane Litte’s The Curious Case of Ellora’s Cave blog post, and about six weeks before Ellora’s Cave sued Dear Author and Jane Litte over the contents of that blog post.
Yet, I just heard about this video’s existence. Apparently it was taken down when people objected to it. I wonder why.
(Edited to add: per commenter below, this was believed posted to Jaid’s YouTube channel with fake news and skits. Regardless: appalling lack of sense of how this would be received by EC’s community.)

Rick’s Reaction When I Told Him About This

Context: Rick passed the CPA exam and was working on his audit hours when he decided to leave accounting instead.
His head tilted. A lot.

If You Have a Saved Copy of this Video

Or if you can find it on, say, rutube.
Please email me: deirdre@deirdre.net

Correction Note

This July 30th tweet links to the video, far earlier than my source became aware of the video. Hence I’ve corrected the text above, striking out the original phrase. Hat tip to Anonymouse in comments.

• ellorascave

Feb 2015: Ellora's Cave: IT Infrastructure Statement

Recently, on the #notchilled hashtag, we heard about Ellora’s Cave’s IT system in the days of yore. Then Ellora’s Cave sent an internal email on the subject. I have some commentary after that.
First, the tweets that started it all:

@pubnt @Format_Me You’d think they would have learned. Back in ‘03-04 then COO and my husband tried 2rantically save only copy #notchilled

— BJ (@JetGibbs) February 14, 2015

@pubnt @Format_Me of publishing AND royalty data on sick laptop. I was there, you weren’t, Pubby #notchilled

— BJ (@JetGibbs) February 14, 2015

@pubnt @Format_Me At the time, husband strongly suggested offsite redundant backups (IT security professional). #notchilled

— BJ (@JetGibbs) February 14, 2015

@pubnt @Format_Me Funny, now that I recall JB and PM were in the bar. Partying. #notchilled

— BJ (@JetGibbs) February 14, 2015

Note: this happened in the 2003-2004 time period. Okay, now that we’ve got that cleared up, let’s read the rest of BJ’s tweets on this topic…then Ellora’s Cave has an official response.

@Format_Me DH actually offered his services but the price was…um not right.

— BJ (@JetGibbs) February 14, 2015

@Format_Me @pubnt Any company living and dying by their data should have redundant offsite backups.

— BJ (@JetGibbs) February 15, 2015

Spoke with hubby to make sure I was correct He said that yes, everything regarding the company infrastructure was on that one dying laptop.

— BJ (@JetGibbs) February 15, 2015

On 1 EC company PC was only copy of manuscripts, financial dox, royalties, tax dox, payroll. The works. #notchilled

— BJ (@JetGibbs) February 15, 2015

@JetGibbs Wait. EC had their entire company files on a LAPTOP????? What idiot made THAT decision? #notchilled

— tejas (@tejasjulia) February 15, 2015

And there were NO backups. Just that one EC laptop with keys to kingdom @tejasjulia #notchilled

— BJ (@JetGibbs) February 15, 2015

@ShoshannaEvers Its for real. I worked as an editor for them for 12 yrs. This was at RT in Kansas City (03? 04?)

— BJ (@JetGibbs) February 15, 2015

@ShoshannaEvers Crissy had been in IT and she and my husband connected on that level, so she brought him in when the laptop was sick after

— BJ (@JetGibbs) February 15, 2015

@ShoshannaEvers one of the events–Jen Martin (then an editor) Crissy, I think there were a couple other folks in the hotel room.

— BJ (@JetGibbs) February 15, 2015

@julainestone The RV was about the same time as the single laptop. Maybe the year later? There was much rejoicing and fanfare.

— BJ (@JetGibbs) February 15, 2015

@ShoshannaEvers And yes, they did have a HQ, but this was at an RT convention. They had several (the warehouse in Akron, and previous

— BJ (@JetGibbs) February 15, 2015

@ShoshannaEvers a business complex in maybe Kent or thereabouts. They ended up splitting editorial to a complex across the st.

— BJ (@JetGibbs) February 15, 2015

@ShoshannaEvers I hope so :/ I never worked in office (freelancer) and only went to one RCon so I haven’t any idea how things had been run

— BJ (@JetGibbs) February 15, 2015

@ShoshannaEvers in the last however many years 😉 But I did consider once (circa mid 00s) working in office and spent a week out there

— BJ (@JetGibbs) February 15, 2015

So, to recap what I understand as the essential elements from the above:

1. At the time (2003-2004?), all critical business infrastructure data was on one laptop;
2. …and it was dying while at an RT convention, so Jet called in her husband’s help.
3. Jet did not work at the EC HQ, but this was stated (to her) to be the only copy of EC’s data for various critical systems.

Ellora’s Cave Decides to Respond

So Ellora’s Cave’s CEO, Patty Marks, sends a puff piece to their biz group. Which, by the way, happens to be hosted on yahoogroups, exactly where I’d (not) expect a company with a competent IT infrastructure to host critical infrastructure mail groups….
Letter follows.
Sent: Monday, February 16, 2015 2:36 PM
Subject: [ec_biz] Gossip regarding our systems
I don’t like to address gossip, because it lends to the possibility that someone may find it credible, but I think this is important.Apparently there is someone out there saying that we don’t back up your information and that we run our systems on single computers without backup.This so ludicrous that it shouldn’t need addressed, but just in case…
All of our data, including but not limited to Financial, Manuscripts, Graphics, Spreadsheets, programs and any resources used in the daily business of the company past or present is currently stored in a multi-server network.Each server is raided in the event of a hard drive failure and run we run redundant power supplies as an extra precaution.All data stored on the network is then backed up to another location using automatic backup software.The entire room is on its own electrical panel with commercial grade surge protection and battery backup.Our server network and all computers that access it are protected by the latest in antivirus and firewall technology.We have and still do employ a full-time IT department since 2005 – not to mention three outside consulting and hosting companies, one for the website, one for our computers and servers and one for our accounting programs.
Before that, we were a company consisting of six people or less and had no server network at that time.IT services were subcontracted on an as needed basis.Computers were backed up individually to external storage devices and no one computer contained all of the company information – at least not since I have been with Ellora’s Cave.As the company has progressed so has our hardware and software that we use every day to run things.
As for the confusion in the data loss with the Amazon cloud crash, there was no royalty data lost.The information erased were certain formulas that were built into the back end of the old EC site.We had the consultants who designed the original formulas fix the broken code – using the backups – and install it on our servers as a standalone program.All financial spreadsheets, imported or exported, royalty programs hosted offsite or onsite, have always been stored on our server network as well.Again we run like seven server environments for redundancy.
Our email system and our website all run on multiple cloud based servers for backup redundancy.Our own network has its own backup redundancy as described above.All user passwords and master passwords have to meet strict password requirements and are changed on a regular basis.All internal users require a domain credentials to access the files they have been give permissions to view and remote users need their domain credentials as well as firewall credentials to gain access to the internal network.No one person has access to the entire system except the IT department.All other permissions are locked down by department and department level basis.
AND – on top of it all – we carry business insurance in case of hardware or software failure and data loss.
Can I say with certainty that our systems are absolutely impenetrable?Well, considering people have hacked banks, giant retailers, SONY and managed to crash the Amazon cloud, I would guess not.But to imply that all of our information is on one “dying laptop” is laughable and simply untrue.

My Commentary on the Above

1. It’s generally a convention of the English language to put spaces after periods and before new sentences. I’d expect a publisher to know that.
2. It wasn’t actually gossip. That’s awfully dismissive.
3. Anyone who thought it might be a statement about Ellora’s Cave’s current business practices needs better reading comprehension skills.
4. Methinks EC doth protest too much.
5. “We have and still do employ a full-time IT department since 2005 […}.” Conveniently, none of these people appear on Ellora’s Cave’s staff list.
6. “Each server is raided in the event of a hard drive failure[…].” Okay, I actually LOLed at that. I assume Patty means: “Each server has RAID arrays to prevent loss of data from hard drive failure” and not what it says, which is: “We cannibalize servers when hard drives fail.”

My Own Recent Oops

I’ve lost data, and it’s not pretty. In fact, I’ve been considering writing two separate pieces about preventing data loss: one about several simple things you can do to ensure you don’t lose your data on your hard drive, and the other would be ways to ensure you have a full backup of a WordPress site. The latter involves some harder problems, though.
I have what I consider a paranoid level of backups. The other day, I had to wipe my server (that no longer hosts deirdre.net but still hosts several other domains I run).
I bought another domain the other night and was wondering where I was going to put it—my VPS (virtual private server) was out of space. Then I remembered I’d paid for more space, so I should just use that. Except that meant re-partitioning the drive, which meant wiping it, and then I decided I wanted to switch Linux distributions while I was at it. So…been at that for a few days.
I use the utility rsync to push my sites to my VPS. This is an old habit of mine.
Each site is kept in its own git repository. For those unfamiliar with git, it manages source code control. So, essentially, I can get back any revision at any point. Git leaves an invisible directory, .git, at the top of the repository.
Unfortunately, when I pushed one site up, I forgot to exclude the .git directory, and I canceled the transfer in the middle. Remember, I was space-constrained and git repositories aren’t particularly small.
Then I forgot to remove the partial .git directory.
So I’m in a hurry to back up my domains before wiping my VPS and resizing the partition and reinstalling and yada yada yada, and what I meant to do was to copy the images/ directory from the server back to my own hard drive, so I didn’t lose any photos. As Jenny Trout did. Disclosure: I have made the exact same mistake Jenny did, and that’s why chair-in-the-sky.com doesn’t have any of its old posts. I’ve removed them until I can dig up the photos. Sigh. Like Jenny, I lost them in a site transfer. Of all the steps in moving WordPress installs across sites, the media library is the most fragile part.
Rewinding a bit: I’m in a hurry. Instead of that one directory, I rsync back to my hard drive the whole domain, including the partial .git directory.
Clobbering my repository.
Sad panda.
But!
I have always pushed my git repository to another site! It’s all good, because my backup’s only a few minutes old. I can re-init a git repository and pull from the remote site.
However, the quicker option? I restored a thirty-minutes-ago backup of that directory with Apple’s Time Machine. Then I correctly pull the uploads directory only and add the new contents to my git repository. And push it upstream.
::phew::
To many of you, what I just wrote sounds completely unintelligible, but I do have a point in writing it (apart from personal embarrassment).
I’m a one-person shop, and this is the skill and expertise I have to ensure my own data doesn’t get lost, even when I screw up when I do something I’m too tired and/or rushed to do correctly.
Ellora’s Cave would need that much more skill on the ground, and their staff list doesn’t reflect that.

Look on the Bright Side…

I suppose they can just pay for all that IT infrastructure out of the bank account with $15 million in it, right?
And @pubnt wonders why Dear Author and Jane Litte want to subpoena her.

As Always, Linkage

The Ellora’s Cave Author Exodus Support Thread helps support EC authors who’ve spoken out by linking to their sites and books.

• ellorascave

Feb 2015: Ellora's Cave: @pubnt Faxes Judge

On February 7th, @pubnt faxed a letter to the judge in the Ellora’s Cave vs. Dear Author case. Courtney Milan has a long blog post about it, so I thought I’d take a different tack on the issue.

Ellora’s Cave Thanked STGRB

On October 4, 2014, Tina Engler, writing as Jaid Black, posted a blog entry titled _To the Silenced Victims_, about how Ellora’s Cave’s authors and supporters were purportedly afraid to speak up.
On October 8, Ellora’s Cave tweeted a thank you to STGRB:

(Thank you to azteclady, and several others, for screencaps.)
Before those two tweets, Ellora’s Cave hadn’t tweeted at all since August 11—nearly two months—not even promotional tweets for its new titles. I called out Jaid Black/Tina Engler on this:

@jaidblack @ReeCroteau Some of the concerns have been: 1) No promotion on @ellorascave for authors since 8/11 & 2) promoting STGRB instead.

— Deirdre Saoirse Moen (@deirdresm) October 9, 2014

For those who don’t know, the short version of StGRB is that it is not an anti-bullying group, but is a group of authors who bullied reviewers because of reviews the authors didn’t like. In other words, it’s ironically named.
Giving a one-star review to a book you genuinely didn’t like isn’t bullying.
I stated that the biggest problem with Ellora’s Cave’s tweets wasn’t so much the STGRB mention as failing to promote EC’s authors and books. I mean, it’s a Twitter account for a publisher that had new books published during those two months of radio silence. EC fixed that promotional shortcoming, and has remained focused on prompt tweeting of new releases, pretty much (I noticed a short blip, but didn’t record when, and I’m not interested in looking it up).
Oh, and also, Ellora’s Cave deleted one of those two tweets, the one that invoked STGRB. Why bother with this digression? Please hold….

@pubnt Invokes STGRB

What’s interesting about @pubnt’s tweets from the October 4th creation of the account until February 1 is that there are zero tweets for: “STGRB”, “goodreads”, “bully”, or “bullies”.
And yet, in her letter to the court, @pubnt relies heavily on STGRB rhetoric. Also, STGRB are in fact the only links in @pubnt’s letter.
What amuses me the most of all about @pubnt’s letter is the assertion that @pubnt is presenting evidence. STGRB isn’t evidence, it’s hearsay. Of course, if that’s how strongly TE feels about STGRB, she could have seen to it that the principal STGRBers were on EC’s witness list. But Ellora’s Cave didn’t choose to add said writers to their initial disclosures.
As a general rule, anything said by anyone outside the list of people who make formal statements admitted into evidence or who are witnesses in the case—that’s hearsay as far as the case is concerned.
Remember the pocket universe episode of Star Trek: The Next Generation? Legal cases are kind of like that. Apart from the witnesses and people giving testimony (and the law including case law, of course), the world outside is invisible. Or, more accurately, hearsay, with some notable exceptions.
Invoking some random blog, even this one, is neither evidence nor proof.

Things @pubnt Says About #notchilled Regulars and My Statement About Who I Am

I’d like to refute the generalizations @pubnt makes about #notchilled regulars, at least as they pertain to me.

1. I have never met Jane Litte. I have followed the Dear Author twitter accounts because Jane Litte and others recommend books I’d like to read. I often disagree with JL’s ratings. As a specific example, one of my favorite books last year was Laurelin Paige’s Fixed Trilogy. JL gave the first book a C- rating. I agree that the first is the weakest of the three, but the plot twists in volumes two and three made it one of my favorites, and book one was strong enough for me to continue reading. Apparently not for JL, and that is her choice.
2. I make a horrible minion. I will only do what I think is right, and, even then, I don’t have time (or energy) to do all of that. In Gretchen Rubin’s four tendencies, I’m a rebel with questioner tendencies, so I’m perfectly fine with not fitting in and not going along with a crowd.
3. I have made far more money from being traditionally published than being self published. I have books published by Que, Sams, Baen, and BenBella, plus others under pseudonyms. (If you follow the purchase/sale trail of the first three, you’ll see that means I’ve been Big5 published by two different routes: Sams and Que became part of Simon & Schuster, and some of the work I did for Macmillan Computer Publishing meant I’ve been published by Holtzbrinck.) I’ve never been published in the romance genre, and I’ve only been rejected once in that genre—more than twenty years ago. Frankly, it was a horrible proposal for a category book, but I was still too green to know that. I am working on a romance novel, and I have an agent who’s already been promised first look.
4. That said, of course I’ve been rejected, too. It’s a part of being an author. Though sometimes rejections sting (and I do whine about those privately), I also get over them. As a friend of mine says, the right attitude to take to these if they’re getting to you: “That’s one more time an editor tried to stop me and failed.” (Neither of us believe this viewpoint, btw, it’s just that it’s one that happens to work for both of us to help get us back to the salt mines of writing new stuff.) I don’t dislike anyone who’s rejected my work—except perhaps MZB, but that’s for reasons unrelated to her authorial or editorial work, at least as it relates to me.
5. I am not “jealous” of any successful writers, nor am I envious of them. I also understand the difference between these two words.
6. I don’t accept advertising on deirdre.net, and never have. That said, I make a small amount of money every now and then from Amazon’s Associate program. How small? I haven’t received anything since 2011, and they’ve owed me $16.28 since 2005. Which I didn’t know until I logged in for this screencap.
   
   Essentially, I removed all the Amazon links I had after LGBT fail and have never really managed to build up the associate income stream I used to have, small though it was.
   That said, I have been considering what kinds of banner ads I might have, but generally those would not be paid ads. Like: I’d make a banner ad for my own new book, which makes sense, right? But how about if a close friend releases one that I liked? How about if my writing group did one? Should I promote Clarion (a workshop I did) via ad? If so, what are my guidelines about where I’d put those vs. where/why I wouldn’t? I don’t have those answers yet. Until I do: only inline contextual links.
7. I have a few other kinds of promotional links here and there, but none are specifically targeting indie authors unless it happens to be a book I’ve enjoyed.
8. One of the reasons I don’t generally review books is that I would feel compelled to be honest about books I didn’t like, and I feel that’s a problem as an author. Sometimes my reasons for disliking books have to do with various artistic goals I’ve got as a writer. For example, I stopped reading Neal Stephenson because his endings didn’t satisfy me. As a plot structure person, that’s a killer for a book for me. Clearly, many readers don’t share this perspective, and I’m glad he writes books they can enjoy.
   The guideline I’ve decided to follow is that I’ll promote books I genuinely love. Period.

Ellora’s Cave Author Exodus Support Thread

The Ellora’s Cave Author Exodus Support Thread is located here. Many EC authors have books out from other publishers. The purpose of the support thread is to help give those authors willing to speak out some visibility.

Note:

An earlier version of this post was supposed to be published over the weekend. Apparently several posts I thought I’d scheduled didn’t post. Oops.

• publishing
• ellorascave
• miscellaneous

Feb 2015: Ellora's Cave: DA/JL's Witness List & the Mouthy Mockernut

First, Courtney Milan has an update and gave a better non-technical distinction of Motion to Dismiss vs. Motion for Summary Judgment.
(It is true, I am trying to keep up with even the dry court minutiae.)

Defense Witness List

In that post, Courtney publishes Dear Author’s/Jane Litte’s witness list:

@PubNT Twitter account
The Pub Net Twitter account has made a series of statements on Twitter since the outset of this case, that are with obvious knowledge of the case at hand. The author behind this Twitter account will have additional information as to the operations of Ellora’s Cave.
Tina Engler
Tina Engler is the founder and head of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.
Patty Marks
Patty Marks is the CEO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.
Susan Edwards
Susan Edwards, at all relevant times, was the COO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.
Raylene Gorlinksy
Raylene Gorlinksy is the Publisher of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.
Whitney Mahlik
At all times relevant hereto, Whitney Mahlik was the Managing Editor of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave
Courtney Thomas

At all times relevant hereto, Courtney Thomas was the Chief Financial Officer of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.
So, I’m guessing we’ll get to find out who the mouthy mockernut is after all. Popcorn, anyone?

• publishing
• writing
• ellorascave
• miscellaneous

Jan 2015: Ellora's Cave: TRO Officially Denied

Today, the judge officially denied Plaintiff’s request for a Temporary Restraining Order, but not perhaps for the reason we’d hope:

The Court held a case management conference on January 26, 2015. During the proceeding, Plaintiffs confirmed that they do not intend to pursue the motion for temporary restraining order currently pending before this Court. As such, the motion for temporary restraining order filed on October 20, 2014 is hereby DENIED.

This had been hinted at by Plaintiff’s counsel in a footnote to EC/JJ’s reply to Defendants’ Opposition to Remand Motion on Nov 1. Bottom of p. 3:

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.

If you ever need a great example of passive voice use and abuse? “Had become attenuated” is a beautiful one.

Joining of Parties Deadline Set

In the Case Management Doc:

The deadline for amending pleadings and adding parties: February 25, 2015.

So, we’ll just have to wait and see what’s going to happen there.

Random Legal Funny

There’s a footnote in one of Randazza’s filings that always makes me smile given that this case is about erotic romance. Bottom of p. 9:

Indeed, the seminal case in American defamation law was based on a publication that contained many factual inaccuracies, but the overall gist of the publication was not defamatory. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).

Seminal derives, of course, from semen/seed.
I don’t know if that particular wordplay was intentional, but it does amuse me.

Ellora’s Cave Author Exodus Support Thread

The Ellora’s Cave Author Exodus Support Thread is located here.

• publishing
• ellorascave
• miscellaneous

Jan 2015: Ellora's Cave: Motions to Dismiss vs. Summary Judgment

I’m not a lawyer (and this is not legal advice), but I’ll take a stab at the question.
Motions for Dismissal and Summary Judgment have one obvious thing in common: disposing of all or part of a case, but they are actually different.
From Wikipedia:

A “motion to dismiss” asks the court to decide that a claim, even if true as stated, is not one for which the law offers a legal remedy.

vs.

A “motion for summary judgment” asks the court to decide that the available evidence, even if taken in the light most favorable to the non-moving party, supports a ruling in favor of the moving party.

Potential Examples

A motion to dismiss first assumes the facts claimed in the claim are true, but irrelevant. A federal judge in Ohio with two companies in Ohio Plaintiffs vs. an Iowa individual and corporation could decide that there is no standing to sue over claims made about hypothetical shopping habits of a non-joined party that lived and shopped in California.
A motion for summary judgment assumes the facts are interpreted as favorable as possible to the opposing party, but that even that means the mover is entitled to judgment as a matter of law. Let’s say that California party is joined and in a relevant jurisdiction, and the claim is about whether or not said party bought a house, and whether what defendant said about the alleged purchase constituted defamation. The judge could rule that saying someone bought a house when they leased it isn’t inherently defamatory, and the facts of the case, taken together with the law, don’t support a claim of defamation. Hence, summary judgment.

Courtney Milan’s Explanation

[Courtney Milan has a clearer non-technical explanation in this post.

• publishing
• ellorascave
• miscellaneous

Jan 2015: Ellora's Cave: About That Marriage to a Murderer

I have never & would never contact the victim of a crime & ask her 2 help get perpetrator out. That is crazy 2 even suggest!

— Jaid Black (@jaidblack) January 22, 2015

For those who don’t know, Tina Engler (majority owner of Ellora’s Cave, pseudonym Jaid Black) used to be married apparently still is married to David Keen, who is serving a life sentence for first-degree murder and attempted second-degree murder. You can see his mugshot and history here. From this case ruling:

Angela Jeffers testified that Karen Stewart (her mother) terminated a relationship with the Defendant about two weeks before the murder, that the Defendant was mad, and that they argued about it. Ms. Jeffers testified that on the day of the murder, Karen Stewart told Ms. Jeffers that the Defendant had told Karen Stewart he was “going to fuck her shit up.” Later that day, Ms. Jeffers testified that she saw the Defendant grab Karen Stewart’s hair, that he had a gun in his hand, and that she heard two shots.

With that in mind, let’s look at this 2007 2011 comment from Angela (on a 2007 post), which I am reposting in full, and keep in mind that the blog post is about Tina Engler talking about her marriage to a convicted murderer in this (archived) interview over here:

This blog hits home to me because I am also a vitcum of her husband in the case he is serving a life sentence for.
The young womans name that was murdered is Karen also! I am Angela, Karen Stewart’s daughter. One of his charges are for attempted murder against me because after shooting my mother he shot at me and thankfully the bullet wizzed by my head.
I was 14 then and am almost 32 now. That was how old she was when he took her from us (for the rest of our lives).
She was an amazing woman and mother. My daughter is 8 and my step daughter is 14 and they have more heart and brains than this Black woman. Thank you so much for taking up for the victum (my mother)and our family.
Neither of those idiots have any remorse.
A few years ago she contacted me trying any way she could to find a reason to get here low life, “Poor” and “Uneducated” husband, David Keen, out of prison. I was shocked and disgusted.
To respond to Mrs. Tina Marie Keens, AKA Jade Black’s statment, YES he deserves to be alone and have lousy medical, rotten fruits and vegetables and no family.
My brother and I were left without a mother and our children have no grandmother. His victim is DEAD and we have a hole in our lives and are consequently victims and his incarceration is of great value to us and we ALL think he is where he belongs, FOREVER, just as my mother is unfortunatly where she is FOREVER. In that lousy prison system that I am so thankful for.

Angela commented again on this post, and this is her comment in full:

Hello,
This is Angela, Karen Stewarts daughter again. I commented on the post and noticed after how the end of my comment sounded like my mother was the one, or also is in prison. I tried to edit my comment but every time I scrolled down it automatically went back to the top and I could not edit it.
Anon 76’s comment edit is just how I meant to say it. And yes, I am not a writer and am very passionate about the subject.
Karen Scott, your paraphrase is correct. That is just how I feel. This is that young girl and I am still devasted by his actions. I miss my mother very much and not a day goes by that I do not want her or need her to be here. When good things happen in my life like my marrage, my children and other good experiences I do not have my special person (my mother) to share it with. When bad things happen or life is looking terrible, I do not have that special person to help me through and/or console me. I need my mother and that worthless animal took her.
When you read or hear about something like what happened to my mother and us, you may feel sad but you will never know how truely sad it is or how it effects everyday of the rest of your life unless it happens to someone you love. By the way my brother also was there and witness the low-life kill our mother.
I do not know how Tina Engler found my number but when she contacted me I could barely speak and had to give the phone to my husband. She told him how David had changed and that he deserved to be out of prison. That I was grown up and am alright now. My husband told her that I was not alright and will never be alright for the rest of my life. That what David did will haunt me forever. And it will and has effected our children forever. He told her to leave us alone.
I did contact an attorney about it but they unfortunatly said there was nothing that could be done. I did not know anything about Engler at the time. I have recently found out she is an author. I was so suprised to find this blog and it made me feel good that people cared.
Also, my mother was not married to him as someone commented. And to let everyone know the reason David Keen killed my mother, she realized how bad of a person he was and was leaving him. He told her that if he could not have her no one else will either. Then he shot her.
He very well deserves to be where he is, among other things.
Thanks everyone for caring.

I’ll let you figure out which story you think is true on this one. I agree with Glance:

This is a big reason why I have trouble believing JB’s other denials. #notchilled

— At a Glance Romance (@ataglanceRMC) January 22, 2015

(Note: I do not believe that prisoners should be treated inhumanely, so I do not believe they should get “lousy medical, rotten fruits and vegetables.”)

• publishing
• ellorascave

Jan 2015: Ellora's Cave: A Couple of Updates

I’d be remiss if I didn’t post this, even though I don’t believe it.

I am not @pubnt. I do not know who pubnt is. NOR DO I CARE. I believe defense has subpoenaed the twitter account so prepare 4 disappointment

— Jaid Black (@jaidblack) January 21, 2015

Well, they haven’t.
Anyhow, I believe pubby’s a narcissism farm.

Speaking of…

Jaid: pariah pariah pariah
Pubnt: pariah pariah pariah pariah

It’s Almost 1099 Time

But that detracts from the hashtag, which documents EC’s late payments, sketchy accounting, and attacks on free speech. #notchilled

— Courtney Milan (@courtneymilan) January 19, 2015

And remember that it’s sending out vastly postdated checks… and in a few weeks, we’ll learn if their 1099s make sense. #notchilled

— Courtney Milan (@courtneymilan) January 19, 2015

Some general advice, in light of this post by Lolita Lopez: http://t.co/O112zE5j50 #notchilled

— Courtney Milan (@courtneymilan) January 19, 2015

If you are issued a 1099 that does not match your records, here is a good place to start: http://t.co/P2AtYjbBk2 #notchilled

— Courtney Milan (@courtneymilan) January 19, 2015

Also, consider contacting the Taxpayer Advocate. You can find yours here: http://t.co/Nu4dLZRU18 #notchilled

— Courtney Milan (@courtneymilan) January 19, 2015

Multiple complaints about the same business may well result in greater scrutiny. #notchilled

— Courtney Milan (@courtneymilan) January 19, 2015

Jon Stewart on Free Speech

From a few days ago.

Ellora’s Cave Author Exodus Support Thread

The Ellora’s Cave Author Exodus Support Thread is located here.

• publishing
• ellorascave

Jan 2015: Ellora's Cave: The Extended Self-Pub Argument

My point in writing this post: I’m going to document why I believe Jaid Black is primarily a self-published author, and then, at the end, I’m going to let irony kick her ass.
Last year, when I was talking about a small digital-first publisher, Nick Mamatas referred to it as “an extended self-pub play.” Which, given what he meant, is true.
That’s how Ellora’s Cave got its start, too, as documented in this famous Dear Author interview with the awesome “trash can full of rejection letters” quote:

Jane: Tell me a little about how Ellora’s Cave was conceived.
Tina Engler aka Jaid Black: I was an unpubbed author with a trash can full of rejection letters. As a writer I had reached an impasse: either I was going to have to conform to NY standards and sex down my manuscripts or I was going to have to start my own publishing company. I chose the latter (doh!) and never regretted it 😉

So, for a publisher, one wants to advertise what’s newest and/or what’s the biggest expected seller on the top of one’s site, right? One wants to make the best business decisions that will increase shareholder value, right?

Well, okay, it’s Jaid Black’s book, and Jaid, aka Tina Engler, is the majority owner of Ellora’s Cave. She’s sold a lot of books, right? So this one must be doing pretty well.
Right?

I uploaded that image on Jan 4, two weeks ago. The Amazon ranking has fallen since then to #661,149.
Just two months old and an abysmal sales ranking.
How about the other rankings for her books? Here’s the first page. (Note: not all titles pulled; I’ve had some network hiccups today.)

Therefore, the only thing that justifies Sporked‘s placement at this point is narcissism, though that word seems inadequate.

And Then There’s the Other Book (Series) Highlighted

Micah BlackLight’s Serpentari series. (Note: not all titles pulled; I’ve had some network hiccups today.)

Where there’s a zero in the right-hand column? That means no Kindle sales. Any other number means there’s been at least one Kindle sale.
I’m sure he’s a perfectly nice person, but his sales don’t warrant being at the top of the home page.

But Wait, There’s More!

Let’s see, it’s January, 2015, right?
See the upper left? Don’t miss our best event yet: ROMANTICON 2014!
Which was almost three months ago. You may recall my virtual visit, as well as the post-Romanticon ebola quarantine for Axl and Taylor.
So, since Romanticon was over before Sporked in Time came out, mere tardiness can’t be the justification for the convention notice still being there.

How Other Peers Handle Their Home Pages

I thought I’d highlight how some other presses handle their home pages. Heat map studies show that many people never scroll down on a web page, so I’m just looking at “above the fold.”
Samhain’s slider features all the week’s new books, then past that the last week or two’s.

Riptide features a recent release up top, then starts the new items just above the fold (as I browse, anyway). IMHO, they’d be better served shortening the second row of items and moving the first row of new books up.

Amber Quill’s rather generic home page features a slider with small images of books in various lines, and the most recent books below that.

Circlet has a blog format home page, with images of some of their publications.

Changeling Press has dated feeling art and border use, but the layout features the newest releases right below the masthead.

Bold Strokes Books doesn’t have a lot of new releases. The shading on their nav bar and behind the new release slider feels a tidge dated, but it’s a beautifully functional home page layout. The slider, though, is the best of any of the sites so far.

Side note: I haven’t read any of their titles. Yet.
Highland Press lacks modern whizzbang, but it does highlight new releases.

Loose ID’s design features a slider with their main categories, and each category highlights new work. Below the slider are all new releases. Their genres are clearly spelled out on the left, offering easy navigation to your books of choice.

Last, but not least, Entangled, which has a really nice slider that showcases their lines and themes. It definitely has the best artwork of all the sites mentioned.

And, while I’m on the subject, I’m fond of how Jackie Ashenden uses a slider on her home page.

So, Now That We’ve Taken This Long Walk, Let’s Return to that Tiny Pier

I wanted to showcase that:

1. Ellora’s Cave does not showcase their authors fairly. As an author, you’d have a better shot at getting a prime home page spot with any of the other publishers.
2. What’s showcased on their home page does not appear, from available data, to be favorable to EC’s bottom line.

Meaning: that space could be better used for something that was likely to sell more books, helping both EC’s bottom line and that of its authors, rather than to continue to push a book that’s failed in the market.

Full Metal Irony

@Jeaniene_Frost @pubnt @CoraCarmack Self-publishing worked well for @hughhowey The Big 5 came to him after that. Trad Pub not always the way

— RoseannCaputo (@RoseannCaputo) January 19, 2015

@RoseannCaputo @Jeaniene_Frost @CoraCarmack Yes. And he did not drop his publisher and go indie afterwards. Still with SS. #notchilled

— Pub Net (@pubnt) January 19, 2015

@katiebabs @pubnt @RoseannCaputo @Jeaniene_Frost @CoraCarmack I enjoyed working with major publishers, but I prefer to self-publish.

— Hugh Howey (@hughhowey) January 19, 2015

@katiebabs @pubnt @RoseannCaputo @Jeaniene_Frost @CoraCarmack I published one book (print only) with S&S. After that, went back to indie.

— Hugh Howey (@hughhowey) January 19, 2015

@hughhowey @katiebabs @RoseannCaputo @Jeaniene_Frost @CoraCarmack Well, I respectfully say that’s a bad decision. #notchilled

— Pub Net (@pubnt) January 19, 2015

@hughhowey @Jeaniene_Frost @CoraCarmack And we say that with less respect than when we believed you’d stayed with S&S. #notchilled

— Pub Net (@pubnt) January 19, 2015

@RoseannCaputo @hughhowey @katiebabs @Jeaniene_Frost @CoraCarmack Because we don’t respect self publishers. #notchilled

— Pub Net (@pubnt) January 19, 2015

Maybe Tina should stop acting like a self publisher riding on the coattails of other people she’s publishing.
And maybe learn to respect self publishers, including herself.
Or maybe she should just, like she thought Hugh Howey should do, return to publishing only through Berkeley.

• publishing
• ellorascave

Jan 2015: Ellora's Cave: Another Editor Gone, Big Merger/Sale?

(Note: if you link outside of Tumblr/DW/LJ, please link to the deirdre.net version of this post. Thank you.)
Former Senior Content Editor Kelli Collins announced yesterday that she’s out:

5:01 p.m., and I’m officially unemployed. Authors…it’s been a true honor, and a genuine slice of heaven. #10years #360books #onward

— Kelli Collins (@EditMeThis) January 16, 2015

You can see from the replies (if you visit that link by clicking on the timestamp) that she was much loved.
Best of luck in your next venture, Kelli.
I pointed out today that, six months ago, Ellora’s Cave had 15 editors and 5 artists (I incorrectly said earlier was 20 editors) plus one editor on the leadership page. After Kelli’s departure, EC lists eight people on the editor page plus two on the leadership page.

Speaking of Editors, EC Has Some New Ones

(Note: I’ve added commentary at the bottom of this post that’s a partial correction.)
And then people started looking at who was on the page, latching onto Jill Noelle, aka Jill Noelle Noble. LinkedIn ties the names together.
Jill was previously involved in Noble Romance Publishing (NRP), a publishing effort that had some interesting failure modes, as The Passive Voice highlights. She’s also the author of Not Your Mother’s Publishing Model, published by NRP toward the end of her tenure. There are so many places to go with that tidbit of information….
#notchiller Gianna Simone wrote two posts of her own about her experiences with NRP: one, which links to even more posts, and two.
And then there’s Jill’s note of departure from Noble Romance Publishing that was posted on AbsoluteWrite.
Here are a bunch of Dear Author posts about the Noble Romance debacle.
Let us return to the land of the current affair: Ellora’s Cave.

A Sale? Or a Merger? You Decide.

@tejasjulia @pubnt @CatGrant2009 Thing is, JB said “I’m not selling EC.” Therefore, Pubby claims “it’s a merger.” #notchilled

— At a Glance Romance (@ataglanceRMC) January 17, 2015

Well, we heard it from Peanut, so who the hell knows?
For those who haven’t been following along, many of us #notchilled regulars believe that @pubnt (aka TinaNut and other nut nicks) is none other than Tina Engler/Jaid Black. More discussion of that in this older post. For that reason, I refer to Pubnt as TinaNut frequently.
However, there’s a lot of deliberately obfuscatory rhetoric in Peanut’s tweets, so one can’t rely on what’s said.

@ataglanceRMC A merger is not a sale. JB & PM will be running EC as an imprint of the big pub. #notchilled

— Pub Net (@pubnt) January 16, 2015

JB = Jaid Black, pseudonym of Tina Engler, EC’s primary owner.
PM = Patty Marks, CEO of EC, aka JB’s mother.
But our Fallacious Filbert keeps referring to “BigPub.” See, a merger is of equals, and, frankly, Ellora’s Cave isn’t that big. How big? Hard to say because there is more than one company. Jasmine Jade has a tax lien for $29,679.52 from the City of Akron for the 2012 tax year. That translates to $1,319,090 in profits (or more, since some of the taxes may have been paid prior to the lien). Dear Author’s Curious Case post

@ataglanceRMC Not messing with anyone on either. As our source says one is in the works & the other is being considered. #notchilled

— Pub Net (@pubnt) January 15, 2015

@ataglanceRMC That’s why the cleanup of the trash, the trimming of the fat, and other preparations. #notchilled

— Pub Net (@pubnt) January 15, 2015

Charming, referring to former staff and authors as fat and trash.
So, maybe some contract sell-off? Chicken feed, says peanut. (Sorry, link because pasting the link in WordPress doxs JL.)

@ataglanceRMC those chicken feed sales are just to get rid of the junk – EC doing a cleanup. #notchilled

— Pub Net (@pubnt) January 15, 2015

@ataglanceRMC In a merger EC will be forced to dump bad books, bad authors, and bad employees the merger partner hates. #notchilled

— Pub Net (@pubnt) January 15, 2015

Oh. Really. That’s a charming way to refer to the people who helped build the company.

@ataglanceRMC Good riddance. No point in rewarding rubbish books and authors by giving them a free ride into 1 of THE BIG FIVE. #notchilled

— Pub Net (@pubnt) January 15, 2015

Big Five? You don’t say.

Ongoing Acquisition Talk

It seems so odd to be talking about an ongoing acquisition. If the ink were dry, I’d expect that it would be announced. Given that it’s not, I don’t even know what to say. (I’ve worked for firms in the S-1 quiet period, as has my husband, and so that’s the culture we’re used to.)
It wouldn’t surprise me if EC were entertaining offers, but hearing about them like this, especially from an anonymous Twitter account, seems incredibly weird.
Julaine really has the killer point, though:

@deirdresm @pubnt @Gianna_Simone @ataglanceRMC Isn’t it interesting that Pub that was willing to risk sanctions by withholding #notchilled

— Julaine Peters-Stone (@julainestone) January 17, 2015

@deirdresm @pubnt @Gianna_Simone @ataglanceRMC Fin. info during discovery in previous lawsuit is generously open about finances #notchilled

— Julaine Peters-Stone (@julainestone) January 17, 2015

@deirdresm @pubnt @Gianna_Simone @ataglanceRMC 3/3 with an anonymous Twitter account that claims to be completely unaffiliated? #notchilled

— Julaine Peters-Stone (@julainestone) January 17, 2015

Julaine’s referencing the 27-page judicial smackdown against EC (et al) in the Brashear case. Two excerpts from that document:

Adding injury to insult was Defense counsel’s bad faith production of the tax returns and general ledgers to Plaintiff at the conclusion of the two days of depositions of the named Defendants. While Defense counsel was in compliance with the latest court order as to the tax returns, his decision to wait until the conclusion of the two days of depositions to produce these discovery documents, which addressed the heart of the claims in this case, impeded Plaintiff’s ability to fully depose the Defendants and was clearly done in attempt [to] hamper Plaintiff’s case and thus done in bad faith. This was plainly gamesmanship: a tactical move to ambush and sabotage the Plaintiff.
[…]
Defendants’ conduct as detailed above is nothing short of contumacious: stubbornly disobedient and a flagrant disregard for the Court’s orders. Defendants’ maneuvering during the two-year discovery phase of this case has been plotted to undermine the progression of theis case. This is evident by Plaintiff’s need to file two motions to compel, three motions to show cause / sanctions and two trial continuances, all arising from Defendants’ discovery abuses in the last two years. Defendants willfully evaded the production of discovery, resulting in unnecessary delays of this case and increased legal fees. Defendants’ actions in this case have crossed the line from a zealous defense to malingering, malfeasance, sabotage and delay.

How’s that compare to recent behavior?

Ex Post Facto Justification

Let’s rewind to Christmas Eve.
One of the things the Nut has gone on about is why former EC staffers weren’t paid. In a letter last week, Tina/Jaid said that all were paid.

@julainestone @jaidblack In our independent opinion EC is entirely withing its legal right to wait till the end of the case here.#notchilled

— Pub Net (@pubnt) December 24, 2014

@julainestone @jaidblack EC is being too nice in not waiting till the end of the case. #notchilled

— Pub Net (@pubnt) December 24, 2014

Too. Nice.

@julainestone And we’ve repeatedly told that motion to add them can come at the right point in this proceedings or the next.#notchilled

— Pub Net (@pubnt) December 24, 2014

So, they can withhold payment for former contractors in case they will defame? And then they can file that motion any old time? Or a successor case?
There have been multiple comments about suing other people, too, e.g., this one.

@julainestone @jaidblack As legal bloggers we present valid legal arguments. Only the Judge determines if our legal arg. applies.#notchilled

— Pub Net (@pubnt) December 24, 2014

@julainestone @tejasjulia @deirdresm Different if EC feels Defamation has already happened, not yet to happen “next month”.#notchilled

— Pub Net (@pubnt) December 24, 2014

@tejasjulia @julainestone @deirdresm Yes, until a Judge decides EC is within its legal rights to wait on the payment. #notchilled

— Pub Net (@pubnt) December 24, 2014

As usual, Courtney Milan just nails it.

The nut believes EC can suspend legal obligations any time,and justify it ex post facto in proceedings with unrelated parties. #notchilled

— Courtney Milan (@courtneymilan) December 24, 2014

That’s such a peculiarly EC-centric view of the world that I can’t imagine an unrelated party could ever believe it. #notchilled

— Courtney Milan (@courtneymilan) December 24, 2014

And then there are the tax liens. That really needs its own post. It really does.
Until then, if you’d like to read more pubnuttery, here’s the PDF of all its surviving tweets. (Some tweets have been deleted, but I believe that’s relatively few.)

I Need a Fangirl Moment

I can’t wait for Courtney Milan’s new book. Already preordered it.

A Note of Update

Per my source, Jill Noelle was an editor at Ellora’s Cave before the layoffs last August. To the best of my source’s recollection, she started in March or April, just didn’t wind up on EC’s Editors and Artists masthead last July. And since archive.org hasn’t taken any snapshots of that page more recently, hard to know when she was added, exactly.

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• ellorascave

Jan 2015: Ellora's Cave: The Gulf Between Doubt and Belief

@ataglanceRMC found a blog post that I’d responded to in a drive-by three months ago, and I’d missed Jaid Black’s response to me until today.
I want to respond to part of her response here, though. Here’s the blog post.
Here’s part of my comment:

One point: others have said that their Amazon sales were NOT declining during the same period when EC’s Amazon sales were. Examples: posts 417, 418, and 420 from this thread:
http://absolutewrite.com/forums/showthread.php?p=9076108#post9076108

And here’s part of Jaid’s response:

Deirdre, my impression of you is that of a person who deeply cares about her fellow authors. For that reason I respect you despite the fact you believe I’m guilty of doing pretty heinous things. You have good intentions, but then you know what they say about those…

For context, I was referencing this August 2014 letter from Ellora’s Cave CEO Patty Marks, excerpt:

You are probably aware of the quick, sharp decline of ebook sales via Amazon in recent months. EC is not the only publisher experiencing this sudden decrease, and interestingly, we are not seeing the same drastic dip from other vendors. But Amazon is our largest vendor, so we are having to make some fairly large changes quickly to deal with the situation until we can understand it and turn it around.

There’s a Difference Between Doubt and Belief

Essentially, what I was saying was this: Other people’s commentary about their experiences has given me reason to doubt EC’s statement.
Does it mean it’s not true? No, it does not.
Does it say anything about what I believe about anyone personally? No.
Because, you see, I’m a creature of doubt, not of belief. I find it farfetched to think I have any opinion about who Jaid is based on my point about Amazon. (There was another point about tax liens, but even the worst interpretation of that wouldn’t earn heinous as an adjective in my book.)
Had anyone asked, I could have thrown quite a few hypotheticals against the wall about how the Amazon situation could be true. Just for sport, here are a few speculations, off the top of my head:

1. EC titles got caught in adult filtering changes that more adversely affected them compared to other publishers and indies referenced in that and other threads.
2. EC’s contract terms with Amazon are less favorable to Amazon, so other results are filtered higher to make Amazon more profit.
3. EC’s fulfillment has been a problem (as was alleged in the Borders lawsuit), thus Amazon has filtered other publishers higher.
4. People who buy EC titles aren’t buying as many non-EC titles, so are less well-connected via “people who bought this also bought” results used for upsells, and the algorithm for calculating these changed in a way that was less favorable to EC.

None of those would mean I’d feel that Jaid Black was doing heinous things.

The Thing I Least Understand

Out of every single thing that has been said by EC that’s relevant to this whole legal case, here’s the statement that I least understand (emphasis mine, text also from the August Patty Marks letter quoted above):

It is also important to support and promote Barnes & Noble and All Romance Ebooks as well until we are able to determine the reasons for Amazon’s declining sales. Hopefully we will be able to work with Amazon to correct the inconsistencies quickly.

I’m a software engineer and a researcher. My entire career has revolved around analyzing problems and fixing potential future problems. Therefore, I just absolutely can’t understand why this hadn’t already been discovered and known.

Jaid Also Asked

Have you ever considered that you might be wrong, though?

It’s a fair question.
I’m one of those people who’s far more comfortable with many open questions than most people. On the Myers-Briggs types, Js like things planned out. Ps like things open. I’m 99% P. I like open questions.
The answer is: I question myself all the time. Since I hadn’t reached any conclusions about the truth in the EC matter, it’s hard to actually be wrong.
I tend to be very direct, and I’m not a person who means a lot above and beyond what I actually say. I was not, for example, implying that EC’s statement was a knowingly false statement. Or even a false statement.
More like: here’s a string sticking out, I think it leads to interesting questions.
My general feeling about Jaid is that she’s deeply motivated to make things work out given her background, and she’s not the kind of person to give up. These are admirable qualities, generally speaking, but (as every fiction writer knows) one’s strengths in one context can be one’s greatest weakness in another.

But No, Not Heinous

That would be Marion Zimmer Bradley.

• ellorascave

Jan 2015: Ellora's Cave: Current Status Email

From the eternaltubthumper rolling my eyes:
1) All past and present freelance editors and artists have been paid in full.
2) Many of you received 2 royalty checks in December; More of you will receive 2 royalty checks in January & February.
3) The accounting department will continue to focus on getting the new royalty system online by the end of February and processing royalties on the old system while paralleling them against the reports of the new system to insure all software bugs have been fixed. At some point in the next couple of months expect to receive 2 different royalty statements so you can compare the old way to the new way and make a smooth transition with it.
4) Nothing has changed at Amazon, though more publishers and authors are finally becoming vocal about how Amazon’s business practices are affecting them. Here’s a recent article; note the parallels between what others are reporting and what we’ve been saying all along: http://www.nytimes.com/2014/12/28/technology/amazon-offers-all-you-can-eat-books-authors-turn-up-noses.html?_r=0
5) Elisabeth has reacquired 2 of our former freelance editors who remained on positive, professional terms with us and we’re excited to have them back. Also, Susan Edwards is now editing full-time for us, which is excellent for our authors and thereby EC. (FYI: contrary to rumors Susan never left EC; She simply decided she wanted to edit instead.)
6) We still have a few tough business decisions to make, but overall 2015 is going to be a solid year.
Tina/Jaid

My Commentary

Let’s take them one at a time.

1. If I’m reading this right, Tina’s admitting that, as of the time of the lawsuit, the freelance editors and artists were not paid, and have not been until just recently.

   Hey, @pubnt, what is your explanation of why EC editors and artists were not paid for months at the time of the DA article? #notchilled

   — At a Glance Romance (@ataglanceRMC) December 18, 2014

   @ataglanceRMC @pubnt this is a lie, period.

   — Jaid Black (@jaidblack) December 23, 2014

   And yet, at least one of the checks was reportedly dated Christmas Eve. The day after that tweet. The ones I’ve heard of arriving all were postmarked after Christmas.

2. Several authors have reported receiving checks for July and fewer still for August. One reported receiving June and August, but no July. Some have had no report (or check) for months.
3. So EC’s still using the “old” accounting system? After more than a year? Right.
   If it’s still that fucked up, why sue Dear Author/Jane Litte instead of the software vendor?
   I remain unconvinced that there ever was a new accounting/royalty system.
4. “Nothing has changed at Amazon.” And then links to an article about how indie authors are affected by Kindle Unlimited—which has exactly zero to do with what happened before Kindle Unlimited came into effect? That article’s about stuff that happened after DA’s post, not before. H. M. Ward’s post was at the end of November about the prior 60 days.
   Let’s put it this way: H. M. Ward, all by her lonesome, has sold six million books in three years. I’m a huge fan of her work. It is my crack.
   My point here is that Holly’s revenue from said six million books puts her in EC’s ballpark, sales-figure-wise.
5. “positive, professional terms with us” I’m guessing that means they didn’t complain when they weren’t paid.
   On Susan. Well. It wasn’t a “rumor.” Susan Edwards’s LinkedIn page still says she’s freelance. Ellora’s Cave’s Leadership and Staff page doesn’t list her. EC’s Editors and Artists page doesn’t list her.. In theory, those sites are self-reported and authoritative for both parties in question.
   Sounds more like a rumor that Susan is working at EC.

6. Only a few?
   I have a suggestion. The only lawsuit that makes any business sense is the accounting/royalty system vendor. Everything else is a distraction.

   Pay to settle the DA suit and move on.

• publishing
• ellorascave
• writing

Jan 2015: Ellora's Cave: Remand to State Court Denied

Not a surprise that Ellora’s Cave lost their motion, but I was hoping for more of a judicial smackdown.
Since it’s been two months, here’s the summary. After Ellora’s Cave/Jasmine Jade filed against Dear Author/Jane Litte in Ohio state court (EC/JJ being in Ohio; DA/JL in Iowa), defense filed to remove the case to federal court. EC/JJ filed a remand motion at the end October, and it’s just been ruled upon today.
Five-page ruling here. I’ve also updated the copy of the federal court documents I have on Dropbox.

What’s Next?

The Case Management Conference Scheduling Order specifies that Plaintiffs must make a settlement demand two weeks prior, and Defendants must make an offer one week later.

At least fourteen (14) days prior to meeting with the Court, Plaintiff(s) shall have made a demand with a written description and monetary breakdown of the damages claimed, and no later than seven (7) days thereafter, Defendant(s) shall have responded with an offer. This is to be included in the Parties’ Planning Meeting Report.

Obviously, I don’t expect this to result in an actual settlement unless EC/JJ folds.

Then the Case Management Conference

Main discovery is stayed until after the Case Management Conference on January 26th.
That’s not a meeting that’s public, but this particular judge has very specific instructions for the CMC. From the CMC Scheduling Order:

Lead counsel, parties with full settlement authority, and a representative with full settlement authority of any Insurance Carrier must be present and have calendars available for scheduling.

From his Judicial Preferences Page:

Judge Adams is of the view that the Case Management Conference is of extraordinary importance. He expects counsel to be prepared with the factual predicate from the standpoint of counsel’s client. Judge Adams expects the client to be present; where the client is a corporate entity, he expects a person to be present who has the greatest knowledge of the relevant facts. This is probably NOT in-house counsel. Judge Adams tailors the Case Management Plan based on the information supplied at the CMC by counsel and parties.

Given those two quoted paragraphs, I can’t see how both Tina Engler (as settlement authority based on her majority ownership and the subject of one of the claims) and Patricia Marks (as EC’s CEO of record) can avoid being there. Also, obviously, Jane Litte needs to be there.

How’s This for Irony?

Hat tip to tejasjulia.

Lest you think this is old, the blog post is dated January 3, 2015.
What does this mean?

1. EC has been recently advertising through Google.
2. At least one of those ads was served to Dear Author, who makes ad revenue from Google ads.
3. So, indirectly, Ellora’s Cave is paying Dear Author.

Note: I’ll link to Courtney Milan’s promised post about the remand decision once it’s up.

• publishing
• ellorascave
• writing

Dec 2014: Some Thoughts on Defamation

Yesterday, I posted a link on Twitter and Facebook to a recent John Scalzi blog post:

So THIS is how adults handle being defamed. http://t.co/sEzyenaP6B #notchilled

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

But some people misunderstood what I actually meant partly because a) one can’t show a lot of context in a tweet, and b) lots of people who read my tweets or FB aren’t following the Ellora’s Cave case, and I meant my tweet partly as commentary on the existence of that case.
I went through a period in the nineties where I was being harassed (and defamed) by Scientology, and I had to consider what I wanted to do about it. Some of what was being posted was true but unflattering (and hence not defamation). Some of it was that was partly true, but not substantially true. And some of it was unflattering but not defamatory (e.g., bullying me about my weight). It was all done with the intent to harass and make me lose status, but, weirdly, I gained status with some people, too.
My own experience made me think a lot about defamation. Scalzi’s viewpoint, as expressed in his blog post, meshes pretty well with my own.

When You File a Lawsuit for Defamation, You’re Saying

1. The other party has more power and more respect than you do, and they had that both before and after the alleged defamation occurred. (Though not necessarily in cases of defamation per se.)
   Think about it. If they didn’t have more respect, then how could what they say actually damage you?
   As Scalzi says in his own post: > However, I would also need to show that Beale’s actions have caused me harm, economically and/or emotionally. Aside from annoyance, which does not rise to actionable levels, I’m not seeing the harm to me personally. Essentially, Beale escapes punishment here because he’s failed to be important enough to be harmful.

   The act of being involved in a lawsuit will also change your reputation, and not always for the better. Some people will respect you more, some will respect you less, and some will lose all respect for you—just because you filed the lawsuit.

2. You believe you know what the alleged defamer’s motivations were.
   Granted, there’s a difference of degree between private person, limited purpose public figure, and public figure here. But how much do we really know about other people’s motivations?
   Even proving negligence (for a private person’s statements) is tricky. I remember having to go over the elements of a negligence claim when I took paralegal classes. The elements are:

   1. Duty of care: one has to show that they had a duty of care.
   2. Breach of duty: one has to so that that duty was breached.
   3. Factual causation: one has to show that that breach of duty actually caused the harm done.
   4. How proximate was the causation to the harm?
   5. There was actual harm done.

   It’s not an easy task, and that’s the easiest of them. You might be surprised how many negligence cases fail to show the required elements of negligence. Three and four are particularly tricky as I recall from the case law I’ve read.

3. You’re willing to remain involved with your alleged defamer for years.
   Cases can go on for 2, 3, 5 years. Not all cases will settle quickly—or ever.
   What does it say about you that you think remaining in relatively constant contact over the course of years is what you feel is your best option?
4. Since you have to file over what the alleged defamatory statements are, you will be dragging your own name through the mud in the course of the lawsuit.
   Further, it’ll all be a part of a permanent, public record. Rulings may be published in federal or state law books.
   A lawsuit creates a tangible, fixed record of what may have otherwise been lost to time.
5. You believe a judge can rescue you.
   I mean no disrespect for judges—or lawyers—here. Judges do have a lot of power within their purview, but one thing a judge can’t do is rewind time to prevent the defamation from happening in the first place. You’ll never get that state back.
   It’s also relatively rare for plaintiffs to get what they expect to or hope to.

The David Beckham Case (So Far)

Let’s look at an example defamation case: David Beckham v. Bauer Publishing (California’s Central District federal case # 2:10-cv-07980-R-SS). It was filed in October, 2010, and is still ongoing (the most recent docket item is less than a week old). It’s had three appeals to the 9th circuit.
The lawsuit stems from In Touch magazine publishing a story saying that Beckham had cheated on his wife with a prostitute.
There was a settlement last year, but there had been an outstanding issue that the appeal couldn’t be heard on until there was a final order. That is still ongoing.
This article from 2011 sure makes it sound like it would be a slam dunk case:

The Los Angeles Galaxy star argued in a court filing in January that he was visiting his ailing father in London during one of the alleged trysts with the purported call girl Irma Nici.
Kendall said a basic investigation by the magazine would have shown that Beckham was elsewhere when the alleged trysts occurred. He asked the judge to allow the case to proceed so that he could conduct depositions that would bolster Beckham’s case, but Real refused.

Part of the problem, though, was that Bauer filed an Anti-SLAPP motion against Beckham. So this article neatly glosses over some of the case’s complications.

• ellorascave
• miscellaneous

Dec 2014: Ellora's Cave: Courtney Milan Pwns the Preposterous Peanut

Hey @pubnt if your number includes a lawyer, when does the law assume that all eighty-year-old woman can have children?

— Courtney Milan (@courtneymilan) December 18, 2014

@ataglanceRMC @tejasjulia @julainestone @deirdresm What did she say? We didn’t see. #nothchilled

— Pub Net (@pubnt) December 25, 2014

Hey @pubnt, same question. Since you know law, when are eighty year old women presumed fertile? #notchilled

— Courtney Milan (@courtneymilan) December 24, 2014

Meanwhile, Pubnt Ignores the Question and Spouts The Following…

Here are some posts in between those where pubnt claimed to know the law:

@ataglanceRMC Thanks. We like to pretend we’re counsel for the side we pick. #notchilled

— Pub Net (@pubnt) December 19, 2014

@trista_michaels ID request just needs to be in the claim. The proper motion will be made at the right point in the proceedings. #notchilled

— Pub Net (@pubnt) December 19, 2014

@trista_michaels It is, stupid. The Claim is the brief statement of the ful case you intend to run. #notchilled

— Pub Net (@pubnt) December 20, 2014

@trista_michaels Properly drafted motions for specific actions in the case are filed at the right pints in the proceedings. #notchilled

— Pub Net (@pubnt) December 20, 2014

@ataglanceRMC @trista_michaels Other relevant parties will be enjoined with motions at the right point in the proceedings. #notchilled

— Pub Net (@pubnt) December 20, 2014

@ataglanceRMC @trista_michaels Pointless repeating. The proper motions can & will be made at the right point in the proceedings. #notchilled

— Pub Net (@pubnt) December 20, 2014

Note that Pubnt’s commenting about what Ellora’s Cave’s legal strategy on the DA case will be.

@ataglanceRMC The only “analysis” that will stop it is a law saying that EC cannot file that motion any time in the proceedings. #notchilled

— Pub Net (@pubnt) December 20, 2014

@ataglanceRMC @deirdresm @trista_michaels There is no MOTION yet, stupid. There is a Claim. The MOTION will come. #notchilled

— Pub Net (@pubnt) December 20, 2014

@ataglanceRMC We know. We are not going to publicly comment on these at the moment lest we coincidentally reveal EC strategy. #notchilled

— Pub Net (@pubnt) December 21, 2014

::cough::

@ataglanceRMC Yeah, we’re not getting involved except where a lawsuit is involved. Not our interest. #notchilled

— Pub Net (@pubnt) December 21, 2014

@ataglanceRMC We know this. This is from that Times case whereby the US constitutionalized the previously English libel law… #notchilled

— Pub Net (@pubnt) December 21, 2014

“…the US constitutionalized the previously English libel law…”? That is a serious misreading of New York Times v. Sullivan. Courtney Milan talks about the case in this post on the EC lawsuit.

@ataglanceRMC .. that previously placed the burden of proof of not defaming on the defendant. #notchilled

— Pub Net (@pubnt) December 21, 2014

Again, a serious misreading of New York Times v. Sullivan. In the US, the person making the claim (i.e., the Plaintiff) has the burden of proof. Instead, what Sullivan did was change the standard of proof required. As the NY Times published on the 50th anniversary of the decision:

The ruling was revolutionary, because the court for the first time rejected virtually any attempt to squelch criticism of public officials—even if false—as antithetical to “the central meaning of the First Amendment.” Today, our understanding of freedom of the press comes in large part from the Sullivan case. Its core observations and principles remain unchallenged, even as the Internet has turned everyone into a worldwide publisher—capable of calling public officials instantly to account for their actions, and also of ruining reputations with the click of a mouse.

Pubnt’s Claim About When DA’s Article Was Published

@ataglanceRMC We honestly think that EC was in the middle of some staff reorganization from a somewhat bloated structure,…#notchilled

— Pub Net (@pubnt) December 21, 2014

@ataglanceRMC … and DA/Jane Litte made a mountain out of a molehill before the process was completed and organized again… #notchilled

— Pub Net (@pubnt) December 21, 2014

@ataglanceRMC … into the new lean & mean structure. In that way we believe that the Defendants defamed the Publisher. #notchilled

— Pub Net (@pubnt) December 21, 2014

@ataglanceRMC But not to loose sight of the forest for the trees… we still think there was Defamation of the Publisher here… #notchilled

— Pub Net (@pubnt) December 21, 2014

@ataglanceRMC … possibly through reckless disregard by not doing enough investigation to find out the truth behind the rumors. #notchilled

— Pub Net (@pubnt) December 21, 2014

@ataglanceRMC …and Reckless Disregard by advancing an interpretation significantly more dire than reality to the extent … #notchilled

— Pub Net (@pubnt) December 21, 2014

@ataglanceRMC …that it’s untrue, where there are other interpretations to the situation that was still in flux and settling. #notchilled

— Pub Net (@pubnt) December 21, 2014

@ataglanceRMC …because corporate re-organizations of such a big beast takes about 4 to 6 months to settle back into a rhythm. #notchilled

— Pub Net (@pubnt) December 21, 2014

Pubnt’s claiming that EC had a bad transition period and DA’s article hit at the worst of that time, and unfairly exaggerated the situation. But that’s not what “reckless disregard” actually means in this context. From Sullivan:

Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless “actual malice”–knowledge that statements are false or in reckless disregard of the truth–is alleged and proved.

Let’s see:

1. Those editors who said they weren’t paid still say they’re not paid. Here’s one.
2. Authors are still claiming not to receive timely royalties. Here’s one. Here’s another.

Doesn’t look like either conscious falsity or reckless disregard of the truth from here.

Back to Pubnt’s Legal “Qualifications”

@julainestone @jaidblack As legal bloggers we present valid legal arguments. Only the Judge determines if our legal arg. applies.#notchilled

— Pub Net (@pubnt) December 24, 2014

Legal bloggers, huh? Sans blog.

@deirdresm @tejasjulia @courtneymilan We like arguing cases on the Internet for the party we support. It’s a great way to learn..#notchilled

— Pub Net (@pubnt) December 24, 2014

@deirdresm @tejasjulia @courtneymilan … the law as a law student. (One of us) #notchilled

— Pub Net (@pubnt) December 24, 2014

And, my personal favorite, TinaNut’s fascination with dissing hybrid authors (including myself) and self-published people as “slush pilers,” especially given that Tina Engler was basically only self-published for years. In this tweet, Pubnt’s dissing Courtney Milan, who not only went to law school, she’s clerked with some pretty amazing people. Also, Courtney’s been on the New York Times Bestseller list, where Jaid Black/Tina Engler has not.

@ataglanceRMC @tejasjulia Nonsense. Current lawyer beats ex-lawyer turned slush piler. #nothchilled

— Pub Net (@pubnt) December 25, 2014

Pubnt Finally Answers Courtney’s Question

@ataglanceRMC @tejasjulia @julainestone @deirdresm Is it something to do with abortion rights law? #notchilled

— Pub Net (@pubnt) December 27, 2014

Bzzt. Admittedly, I know more than the average person about that area of law, but even if I hadn’t, I’d have guessed it related to probate law (which isn’t entirely accurate, but it’s at least in the ballpark).

Background: I asked the Nut this question. https://t.co/9MuOIB3zW4 This is a reference to a VERY PAINFUL legal fiction inflicted on all 1Ls.

— Courtney Milan (@courtneymilan) December 27, 2014

I got a ton of DMs/messages from people saying “AUGH rule against perpetuity flashbacks!”

— Courtney Milan (@courtneymilan) December 27, 2014

The Fertile Octogenarian is a fairly decent litmus test. If someone doesn’t know it, they’re unlikely to have legally training in the US.

— Courtney Milan (@courtneymilan) December 27, 2014

By the way—asking about fertile eighty-year-olds is the way to frame the question. That yields basically zero useful google results.

— Courtney Milan (@courtneymilan) December 27, 2014

Not sure of the point of this exercise, since obviously the Nut has no legal background. But for the 1 person who doubted, HERE YOU ARE.

— Courtney Milan (@courtneymilan) December 27, 2014

@nadialee TBF, I really feel like Tina should have a better understanding of basic law than the Nut has exhibited.

— Courtney Milan (@courtneymilan) December 27, 2014

Deirdre Surveys the Husband

Rick just woke up from a nap when I was starting to write this post, so I asked him Courtney’s question.
He gestured at the air a couple of times, and, within thirty seconds came up with “Rule Against Perpetuities.” Which is correct. Also, not bad for someone still half-asleep. Here’s the Wikipedia page about the scenario.
Oh, and Rick hasn’t gone to law school either.

• ellorascave

Dec 2014: Ellora's Cave: Willing to Share Your Royalty Timeline?

It occurred to me that I’m really great at spreadsheets.
So what I’m asking for:

1. Date you received a check for a given royalty month. (Or “Never received” if that’s the answer.)
2. Date that check was postmarked, if available.
3. Date that check was dated, if available.

I don’t ask you:

1. Your legal name or pseudonym. If you’re willing to share your author pseudonym with me, I’d appreciate it (for authentication that you’re an EC author), but it’s not required.
2. How much the check was for.
3. What books sold how much.

My purpose in asking: I believe that checks have been slipping later over time based on reports of a limited set of people. I’d like to quantify that data into a chart.

Contact information

The spreadsheet’s available in three formats: .xslx for newer versions of Excel, .xls for older versions of Excel, and .numbers for Apple Numbers 5.0 (or later). Please email the spreadsheet to me at deirdre@deirdre.net.

Data Protection

To the extent the law permits (and it permits quite a bit here in California), I will protect my sources. There is always a small risk that this information will be subpoenaed. If so, I can likely provide the source files while still protecting anonymity.
Note: it’s absolutely okay to share this post. Thank you.

• publishing
• ellorascave

Dec 2014: Ellora's Cave: That Old Printer Lawsuit

tl;dr version is that it took almost a year before the case settled.
In 2011, EC and Jasmine Jade were sued by the company leasing them their POD printer. (Note: lots of attachments I haven’t read, some of which may be interesting.)
I wasn’t ever interested enough to bother looking up the state docket before, but someone mentioned it on Twitter today, so I finally did.
That case, 2011-L-010207, defense removed to federal court. Then EC/JJ filed their answer in federal.
Only problem is, they have the right to remove for thirty days and they filed on the thirty-first. The leasing company filed a remand motion and it was granted.
I’ve put the whole Illinois docket up on Dropbox.

• publishing
• ellorascave

Dec 2014: Ellora's Cave: Super Wendy's Erotic Romance History

I’d missed this blog post by Super Wendy on “The Quick and Dirty History of Erotic Romance.”

EC also played a healthy hand in marketing. As I’ve already detailed, erotic romance did exist before EC we just…..didn’t know what to call it.

In 2004, Google started tracking searches with Google Trends. For whatever reason, EC didn’t start getting traction until November 2004. I’ve posted this graph before, but here it is again.

What’s been fascinating to me since looking at this graph was how long Ellora’s Cave has been in a Google trend long, slow slide compared to erotic romance.
Recognize that this graph doesn’t discuss how many searches there are, or whether the overall popularity of the term is increasing or decreasing. Just what the relative ranking of two terms are, one against the other, and both total 100 added together when you’re looking at the best month for the two terms combined.
Romantica as a term is confusing because there are other uses for it that have nothing to do with EC, and the manga series and the band are the two top hits for the term. EC’s use doesn’t even register on Google trends.
Here’s another interesting graph, though, one I hadn’t posted before:

Overall, romance novel as a search term tracks pretty well with erotic romance. Romance novel has a slight downward trend until late 2010, then turns upward.
What does that mean? Well, it means Google searches for romance novel and erotic romance are healthy.
The same can’t be said of Ellora’s Cave as a search term. Also note that this doesn’t disambiguate searches for the caves in India.
Want to play with search terms? Here’s a Google Trends link for you.

• publishing
• ellorascave

Dec 2014: Ellora's Cave: Trust and Confidence, WTF?

Up until the rule, the following is Rick’s commentary that he initially posted as a commentary here. I added links to @Pubnt’s tweets.
I did some very modest legal research on some more of the legalistic language TinaNut’s been using lately. Just to be clear, as a non-lawyer I’m no expert and have zero access to Lexis, etc. I’m just a layman with an ongoing interest in legal issues (who learned enough business law to pass the CPA exam, back in the Pleistocene).
TinaNut’s been saying things like:

Causing damages to EC is in breach of contract – breaching the implied Trust & Confidence term.
It could now also be u r in Breach of Trust & Confidence, or in litigation, and has caused recoverable damages. Otherwise you would have been paid by now, like thousands of other good EC authors/employees.
Q: Are you another author in litigation with EC and has caused recoverable damages? If so wait till the end of the lawsuit you are involved in to get paid, less recoverable damages. T&C clause is actionable in Damages when breached.

Under UK common law, employment contracts are construed as having an implied term requiring ‘mutual trust and confidence’, which in some circumstances can even overrule provisions in explicit employment-contract terms, and applies to both employer and employee. Notable UK cases have involved suits by employees alleging that hostile or dishonest management had carried out ‘constructive termination’, and successfully sued for tort damages on that basis. It’s important to note that the aggrieved party had to specifically litigate this claim. It wasn’t tacked on as a ‘by the way’ to (say) an only somewhat related defamation suit between the employer and some third party.
Australia inherited the ‘mutual trust and confidence’ concept from the UK, until a few years ago when the High Court jettisoned the concept from all subsequent Australian cases.
I find no evidence that the concept exists in USA law at all – with the minor (and irrelevant) semi-exception that insider trading prosecutions often allege that the accused brokers (etc.) failed in fiduciary duties that entail requirements of trust and confidence.
In USA employment law, zip.
The parallel concept in USA employment law seems to be the implied covenant of good faith and fair dealing, which is part of every employment contract because it’s part of every contract, period. Some states with at-will employment legal regimes recognise violation of this implied covenant as a valid grounds on which an employee might be able to prove wrongful termination (despite employment being otherwise at will, in that state).
TinaNut’s… er… reasoning is pretty murky on this whole matter, but here’s my best reconstruction of what she’s alleging: Employees’ contracts with EC include confidentiality clauses, and they’re also bound by implied covenants of good faith and fair dealing (which she mistakenly calls ‘the implied Trust & Confidence term’). If an employee testifies for Dear Author, or tweets allegations supporting Dear Author’s position, during the EC/DA litigation, they are injuring EC’s interests in violation of contract, and are tort-feasors to the extent of the damage they are causing EC. The value of that damage can be decided only at the end of the EC/DA suit. [Insert here some justification for tying these tort damages to payables owed to them for wages and other payables. I got nothing.] So, it’s legitimate to wait until end of the current lawsuit and then offset damages owed by these employees against payables owed to them.
Sometimes, the Nut acknowledges that these alleged tort damages could be established only through separate, unrelated litigation, and other times doesn’t. E.g., she talks about ‘enjoining them’ later in the proceedings or that they will be ‘named at the right time’.
The Nut appears to be confused between allegations that employees who’ve testified or tweeted thereby committed defamation (and per her are to be ‘joined’ to the EC/DA lawsuit later), and allegations that they violated confidentiality or good-faith obligations to their employer, which if she wanted to go for that would be a separate lawsuit.
I thnk, BTW, that the odds of getting a tort judgement against an employee for testifying in a court case are exactly zero, and the likelihood of getting one for tweets saying ‘My employer’s been late paying me’ are pretty close to zero, too.
In addition, TinaNut speaks as if confidentiality and/or good-faith obligations of employees, such as they are, apply equally to non-employee authors having EC publication contracts for their books, which obviously isn’t the case. As an aside, I rather suspect that judges take a very dim view of attempting to bludgeon employees and business associates with confidentiality clauses to punish or intimidate them over testifying in court cases.
Then, too, there’s the troubling bit where TinaNut thinks EC can withhold timely payment of employees (or business partners) just because she thinks EC might speculatively be able to sue them for damages in the future, and expect they’ll somehow acquire the right to remit only the net of those amounts. Sorry, paranoid pistachio, not the way it works.
It seems almost gratuitous to harp on the hapless hazelnut’s meaninglessly vague and loose terms ‘involved in the lawsuit’ and ‘part of the lawsuit’, which lumps together actual parties to the EC/DA suit, people who’ve testified, and even apparently people who’ve merely tweeted about it. To her credit, she does acknowledge this vagueness when called on it.
Does the wandering walnut really believe her legal fantasy? I fear that she does. And the fall will be hard and painful.

---

(The rest is Deirdre’s commentary.)
What fascinates me most about the annoying acorn’s allegations are some of the following:

1. The persistent statement that Tina Engler is the CEO of Ellora’s Cave, when her mother, Patricia Marks, is the CEO of record. That makes me wonder what the actual truth of the matter is.
2. The statements that EC has “thousands” of employees, later shifted to “thousands of good EC authors/employees”. I counted EC’s authors back when the suit began, and iirc, EC had 934 authors at that count. So near as I can tell, EC’s never topped the thousand mark of authors and employees (and contractors) combined. Certainly not multiple thousands.
3. There’s a consistent conflation between employees and contractors. Contractors aren’t employees, and employees aren’t contractors. Inherently, a corporation has less loyalty to a contractor than to an employee; the reverse is also true. This should not come as a surprise.
4. “Loyal” authors don’t tweet, and publishers move promotional funds away from tweeting authors. That may be true for EC, but it’s not true generally. (one) (two) (three) (four) (You can really see the repetitiveness in that series of four tweets.)
5. EC’s a “massive” corporation (or “massive accredited publisher” in other tweets).
   What’s particularly fascinating to me about the whole “massive corporation” assertion is that I’ve actually been a software engineer at an actual massive corporation. Look, if you don’t have full-time sushi chefs in multiple countries, it’s just delusions of grandeur.

6. Related to the “accredited” publisher, there’s also the claim that EC’s an “approved” publisher. Courtney Milan commented:

   This is especially weird since there IS no RWA approved list any longer.

   Courtney’s on the RWA board (though speaking as an individual), so she’d know.
   What’s hilarious to me about TinaNut’s continued railings against self-publishing is that, by Tina Engler’s own admission, Ellora’s Cave is an extended self-play. Here’s an old DA interview with Tina/Jaid, and the pull quote to end all pull quotes:

   I was an unpubbed author with a trash can full of rejection letters. As a writer I had reached an impasse: either I was going to have to conform to NY standards and sex down my manuscripts or I was going to have to start my own publishing company.

Courtney Nails It (As Usual)

Just as I’m about to click “post,” Courtney Milan tweets….

Do we need to be told that anonymous twitter accounts are generally not legal authorities? No. No, we do not. #notchilled

— Courtney Milan (@courtneymilan) December 15, 2014

I mean, if we were to talk SPECIFICALLY, that particular anonymous twitter account is like an anti-authority. But, you know. #notchilled

— Courtney Milan (@courtneymilan) December 15, 2014

Lots of Comments on the Last EC post

If you’re reading my posts elsewhere (Tumblr, Dreamwidth, Livejournal, RSS), then you may have missed a lot of interesting comments.

For Your Amusement

For all your future nut phrase constructions, here’s a list of culinary nuts that may help you.

• publishing
• ellorascave

Dec 2014: Ellora's Cave: When Lightning Strikes

It’s a very rainy day in Silicon Valley as we’ve got the worst storm in five years.
Every writer has their tells: the words they misspell or misuse. The words they use in preference to other words.
The other day, I got an anonymous tip: Both @pubnt on Twitter and Tina Engler/Jaid Black have one of the same tells.
It did stick out to me when @Pubnt used it, but I’m not familiar enough with Tina’s writing style to have noticed the similarity.

@ShelbieKnight @jaidblack This is an author you don’t want to keep. Tweeting nonsense about 3 month Lightening fast editing.#notchilled

— Pub Net (@pubnt) November 9, 2014

3 months be fore editing is lightening fast in publishing! Most publishers are booked 18+ months in advance. #notchilled @ShelbieKnight

— Pub Net (@pubnt) November 8, 2014

Tina Engler uses it in this Amazon review, and here’s the excerpt:

“This author is an absolute master at invoking emotions. If she wants you to feel freaked out, she knows how to use a lightening storm and a few choice words to do it.”

And Tia Isabella, a pseudonym of Jaid Black, which is in turn a pseudonym of Tina Engler, uses it in this EC title:

Thomas watched his cousin bolt down the steps at lightening speed.

And the commenter below also said:

From the Trek Mi Q’an books:
“She leapt on all fours in a lightening-fast movement,”
“Death proved to have lightening-fast reflexes”

My anon tipster did mention this use, but that’s not lightning, the electrical phenomena, but lightening, the gerund form of lighten.

Pubnt’s Backstory

In the early stages, @pubnt went around tweeting publishers to tell them not to work with authors who were “participating” in a lawsuit against Ellora’s Cave.

. @HarperCollins ETA: These are the author PARTICIPATING in a lawsuit against a publisher. Never touch them. #notchilled

— Pub Net (@pubnt) October 5, 2014

. @HachetteUS ETA: These are the author PARTICIPATING in a lawsuit against a publisher. Never touch them. #notchilled

— Pub Net (@pubnt) October 5, 2014

Except “participating” was a gross exaggeration. Later, @pubnt clarified with this tweet:

.@panmacmillan ETA: http://t.co/f0SyPL5RFZ

— Pub Net (@pubnt) October 5, 2014

But this list is of romance authors published by Ellora’s Cave, most of whom never spoke out about Ellora’s Cave. They were simply EC authors who also had non-EC titles.
Pubnt also regularly uses Jane Litte’s real name. In court docs, that’s fine, but many of us have deliberately used the internet pseudonym in our blog posts.
Pubnt also has publicly declared that checks are being paid to people except those “involved” in the lawsuit.

@tejasjulia @AuthorSJDRUM @JulieNaughton Nothing stopped. Checks are coming to all but those involved in the lawsuit, naturally. #notchilled

— Pub Net (@pubnt) December 12, 2014

However, “involved” in Pubnt logic doesn’t just mean “is a party to.” “Involved” also would mean, say, anyone who tweeted or blogged or said anything critical about EC.

Catch Is, There Are Laws

18 USC § 1512, for example.
Federal law, along with most state laws, take the reasonable view that if there are threats or harassment of people who testify or provide evidence, then cases won’t be able to proceed.

Tina Was (Probably) Also Barred from Certain Activities

From September 30 to the federal court removal on October 20, Tina as part owner of EC was likely subject to the joint motion’s agreement about not publicly commenting on the case:

In the interim, all parties agree that neither they, nor anyone under their direct control, shall post on the Internet any comments specifically and directly related to the factual allegations that form the basis of Ellora Cave’s defamation complaint; further, they agree not to comment online, directly or indirectly, on the allegations that form the basis of the defamation complaint. Nothing herein shall prohibit Plaintiffs from responding to defamatory posts or re-posts made by third parties related to the issues raised in this litigation.

I note Jaid Black posted this the same day @Pubnt started tweeting. (tl;dr version: McCarthyism, freedom of speech, calling out commenters claiming EC owes them money (some screencaps from comments on this blog), and claiming EC authors are too afraid to speak.)
::cough::
Rick came up with a name for Pubnt today that I rather like: TinaNut.

• publishing
• ellorascave
• writing

Dec 2014: Fundraiser for Former Ellora's Cave Editor Bree

Bree was an Ellora’s Cave editor for twelve years before being laid off (along with all other freelance editors) in August.
Here’s a quote from the fundraiser:

It’s no secret that the EC editors’ unexpected layoffs on Aug.18 have adversely affected editors’ finances. In the case of one of our colleagues, Bree, her 12-year full-time loyalty to EC has severely compromised her income and she is on the verge of homelessness. She is diligently searching for work and we can’t bear to see her sink while she’s doing so. Please help if you can. Any amount, no matter how small, is welcome.

Here’s the fundraiser link. (Gofundme.)
If you don’t like Gofundme and prefer to contribute another way, email me (my email’s at the bottom of every deirdre.net page).
Also, Bree’s available for editing work. I can forward requests via email.
Please share this if you’re so inclined.
Thank you.

• ellorascave
• fundraising
• medical
• miscellaneous

Dec 2014: Ellora's Cave: Some Google Trends

It is interesting to compare EC with self publishing search trends (Google trends) #notchilled

— Wylie (@oldCalicoJack) November 30, 2014

So I decided to pull up the map, then got on searching a few combinations of other interesting things.
There are a few things we can glean from this chart.

1. Google searches for “Ellora’s Cave” peaked in 2006. Note that I don’t disambiguate between the publisher and the caves in India, so this is combined.
2. Interest in self-publishing has been in a slight decline over the last few years, but EC’s Google trends are in a far more marked decline.
3. Indie publishing as a search term is now also about as common as Ellora’s Cave.

Even though search trends for DA start two years later, DA’s been consistently more popular since 2012. Which is interesting.

Erotic romance had a dip, and during that dip, it was occasionally a less popular search term than Ellora’s Cave. However, it’s stratospherically more important a search term than Ellora’s Cave is now.

Erotic romance is a popular search term in the Philippines.
It does surprise me that the second most popular country for this search term is Pakistan. Anyone have any theories on that?

Meanwhile, Ellora’s Cave is only of trending-quantity interest in the US and the UK. Not Canada, Philippines, Australia, Pakistan, Malaysia, or India (the other popular countries for the search term “erotic romance”).

Self-explanatory popularity map for self-publishing as a search term.

So I looked into several EC authors and this chart including Laurann Doehner is particularly interesting. She’s far more famous than her publisher. (This does tend to happen when an author becomes particularly popular.)

Taking Laurann out of the equation, EC and Jaid Black have tended to trend similarly over the last three years.

• ellorascave
• publishing

Nov 2014: Ellora's Cave Author Exodus Reminder

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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• ellorascave
• miscellaneous

Nov 2014: Ellora's Cave: Tenses and Figures

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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• ellorascave
• miscellaneous

Nov 2014: Ellora's Cave: On Dear Author and CDA § 230

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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• ellorascave
• miscellaneous

Nov 2014: Ellora's Cave: Jane Litte's Answer Filed with Court

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.

• publishing
• ellorascave
• miscellaneous

Nov 2014: Ellora's Cave: Both Sides Denied Extensions

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.

• publishing
• ellorascave
• miscellaneous

Nov 2014: Ellora's Cave: Reply on Opposition to Remand

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.

• publishing
• ellorascave
• miscellaneous

Oct 2014: Happy Halloween! With Treats!

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.

• scientology
• ellorascave
• graphic-design
• writing
• holiday

Oct 2014: Proving Substantial Truth

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.

• publishing
• writing
• ellorascave
• miscellaneous

Oct 2014: Ellora's Cave: No COO? Selling Reverted Books? Lawsuit Update

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.

• publishing
• writing
• ellorascave
• miscellaneous

Oct 2014: Ellora's Cave: Distribution Issues

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.

• publishing
• writing
• ellorascave
• ebola-strippers

Oct 2014: Ellora's Cave Attempts to Remand to State Court

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.

• publishing
• ellorascave
• miscellaneous

Oct 2014: Ellora's Cave: Dear Author's Answer and Counterclaim

The exciting invocation of the Communications Decency Act in a lawsuit about an erotica/erotic romance publisher—but not in the way you’d expect. Up next after “Previously on….”

Earlier Documents of Note

From now on, I’ll post a quick recap at the beginning of this series.

1. Dear Author’s blog post, The Curious Case of Ellora’s Cave. Ellora’s Cave and Jasmine Jade Enterprises sued Dear Author and Jane Litte over this post.
2. Ellora’s Cave’s lawsuit, complete with the TRO request. I discuss the memorandum of law and the request to out anonymous commenters in this post.
3. The removal to federal court, which I posted the meat of the other day.
4. Opposition to Plaintiff’s Motion for Preliminary Injunction. I cover a few points in this post. Courtney Milan gives a deeper understanding of the document in her post. Exhibits: (Exhibit A, from Jane Litte; Exhibit B, from an editor hired in 2003; Exhibit C, from an author first published by EC in 2007; Exhibit D, from an author first published by EC in 2013; Exhibit E, from an editor hired in 2012; Exhibit F, from an editor hired in 2013; Exhibit G is a true copy of tax liens and Workers’ Comp liens against EC and Tina Engler/Jaid Black.)

Also of interest: Courtney Milan’s post, On Limited Purpose Public Figures. All my blog posts relating to Ellora’s Cave are tagged. There are a few not directly related to the lawsuit.

Dear Author’s Answer

Note that this is just Dear Author’s answer. I expect Jane Litte’s answer shortly.
Document here. Because it’s a paragraph-by-paragraph response to the lawsuit, you’ll need to have a copy of that to read side-by-side.
Responding to the first two paragraphs, “Consequently, this averment is denied and strict proof demanded.” That’s some legal verbiage that I may not understand the nuance of. The import, however, is to ensure that the correct parties are suing Dear Author and Jane Litte.
It starts to get interesting in ¶ 10:

Admitted that Defendant [Litte] authored an article entitled “The Curious Case of Ellora’s Cave,” which was published on the blog Dear Author, which is owned and operated by Dear Author. Denied as to the defined term “Libelous Publication” as an erroneous legal conclusion without factual foundation.

The next few paragraphs of fallout are flatly denied.
When it gets to the nuances of EC’s relationship fallouts, the phrasing changes to:

Dear Author is without knowledge or information sufficient to form a belief as to the truth or falsity of the corresponding averment. Consequently, this averment is denied and strict proof demanded.

Here are the most interesting paragraphs that applies to (sorry, 15-17 are being auto-renumbered to 1-3, grr):

1. This Libelous Publication has caused distress among current Authors under contract with Ellora’s, and Ellora’s has received numerous contacts from Authors wishing to rescind contracts based on this Publication.
2. This Libelous Publication has caused distress among employees and contractors with Ellora’s and Ellora’s has received numerous contacts from employees and contractors concerned about the current state of the business.
3. This Libelous Publication has also prevented Ellora’s from contracting with other potential authors.

I would guess (being an analytical sort), that in order to prove ¶ 15, one would have to show what the rate of authors requesting reversions/cancellations were before the publication, and what they were after. That would require excellent recordkeeping, though. (It would also require proof that defamation occurred, and a causal link.)
I’m not sure that ¶ 16 implies actual damages, especially not after the August 19th publication about Ellora’s Cave layoffs. That’s almost a month before the Curious post.
¶ 18-19 are about Jasmine Jade. Frankly, I’m not sure why Jasmine Jade is a party to this action. There is only one reference to JJ in the Curious post, and it’s about a tax lien that anyone could look up.
The rest of the responses are denials of various sorts.

Affirmative Defenses

Affirmative defenses are a curious beast. I’m guessing that Courtney will go into this later, but basically they are reasons why, even if the allegations are true, that aspect of the case can’t proceed.
An example would be statute of limitations. You sue for something where the law gave you a year to sue and it’s now 2 years after the event happened. Everything you say is true, but if the defense raises statute of limitations as an affirmative defense, then the lawsuit can’t proceed.
The other aspect of affirmative defenses is that they typically have to be raised in the answer. They can’t be brought up later. Thus, the affirmative defenses tend to be rather kitchen sink in approach.

First Affirmative Defense: Communications Decency Act

In order to understand why this affirmative defense is hilarious in context, one needs to know what the original intended purpose of the CDA was. Some excerpts from its legislative history:

What became the Communications Decency Act of 1996 was initiated in the Senate Commerce, Science and Transportation Committee […] to expand the prohibitions against obscene, indecent and harassing phone calls so that they would apply to all forms of electronic communications. The amendment was offered “to address an increasing number of published reports of inappropriate uses of telecommunications technologies to transmit pornography, engage children in inappropriate adult contact, terrorize computer network users through “electronic stalking,” and seize personal information […].”
The amendment from Feinstein, cosponsored by Republican Senator Trent Lott from Mississippi, sought to require cable and satellite companies to fully scramble any sexually explicit adult programming.
The Telecommunications Act of 1996 began in the House as HR 1555. […] There were disputes over efforts to limit internet indecency and television violence though. The committee bill requested that the attorney general‟s office submit a report evaluating the enforceability of current criminal laws governing the distribution of obscenity over the internet, assessing the Federal, State, and local law enforcement resources available to enforce those laws, evaluating the technical means available to combat obscenity, and making recommendations on the means of encouraging the development of new technologies to deal with obscenity.

So let’s look at the affirmative defense here.

1. Defendant Dear Author is a provider of interactive computer services as defined in 47 U.S.C. § 230(f)(2).
2. Dear Author neither created nor authored the content of any of the statements complained of in Plaintffs’ Complaint.
3. Under 47 U.S.C. § 230(c)(1), Dear Author cannot be treated as the publisher of the above complained-of statements, and thus cannot be held liable, either at law or in equity, for the contents of the statements.

47 U.S.C. § 230(f)(2) (link to law) defines an “interactive computer service”:

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.

The reason that blogs allow comments and internet forums exist is because the CDA makes it feasible to not get caught up in every squabble.
And 47 U.S.C. § 230(c)(1) states:

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.

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.
Or, in short, law says you’ve got the wrong person.
I admit to not being up enough on CDA case law to know what rulings have been. I am more familiar with cases like Religious Technology Center v. Netcom and the ruling excerpt incorporated into the Digital Millennium Copyright Act, if only because I was at ground zero during that controversy.

Second Affirmative Defense: Truth

1. Although the burden of proof for falsity is upon Plaintiffs, as applied to Plaintiffs’ claims for defamation, Dear Author avers that all statements allegedly made by Dear Author complained of by Plaintiffs are true.
2. Any complained-of statements allegedly made by Dear Author that may happen to lack 100% factual veracity are substantially true, and thus treated as true as a matter of law.
3. As truth is an absolute defense to defamation, Dear Author cannot be liable for Plaintiffs’ defamation claims.

Truth is an affirmative defense to defamation.

Third Affirmative Defense: Substantial Truth

1. Any statements allegedly made by Dear Author complained of by Plaintiffs that are not literally true are substantially true, in that the “gist” or “sting” of the article is true.
2. As substantial truth is a defense to claims for defamation, Dear Author cannot be liable for Plaintiffs’ defamation claims.

Pretty straightforward.

Fourth Affirmative Defense: Qualified Privilege

I know almost nothing about qualified privilege as it relates to defamation cases, but the plaintiffs cited an Ohio case (#5, Am. Chem. Soc’y v. Leadscope, Inc.) that discussed it extensively. PDF of the ruling is here.

1. All allegedly actionable statements were subject to qualified privilege as they were directed to parties having a common interest in the subject matter of the statements, particularly authors who either had a contractual relationship with Plaintiffs or who were contemplating one.
2. All allegedly actionable statements were subject to qualified privilege as they were made in the course of a justifiable exercise of a moral obligation, free of improper motive or malice.
3. All allegedly actionable statements were subject to qualified privilege as they were fair comment and criticism of Defendants’ business practices, matters of significant public and social interest.

As someone who bought a few of EC’s titles last year to evaluate them as a potential market, I feel like this was aimed at me. Thanks, Jane.

Fifth Affirmative Defense: Failure To State A Claim

1. Plaintiffs have failed to sufficiently plead the elements of a cause of
   action for libel.
2. Plaintiffs have failed to sufficiently plead the elements of a cause of
   action for libel per se.

Like many other causes of action, there are specific things that have to be alleged in order for there to be a claim for defamation. This (short) page lists them.
Re-reading the complaint, it seems like there’s at least some language to cover all the bases. If the judge rules that one of the required elements doesn’t exist and failure to state a claim isn’t raised as an affirmative defense, I’m not sure what would happen, exactly.

Sixth Affirmative Defense: Failure To Join an Indispensable Party

I saw this one coming.

1. Plaintiffs have failed to join an indispensable party, Tina Engler, in their
   Complaint.
2. Tina Engler is an indispensable party because Plaintiffs’ Complaint
   identifies allegedly defamatory statements about her allegedly made by
   Dear Author.
3. Engler is also an indispensable party because many of the allegedly
   defamatory statements identified in the Complaint attribute Plaintiffs’
   declining business performance to the actions of Engler.
4. In Engler’s absence, the Court cannot afford complete relief among
   Plaintiffs and Dear Author.
5. Because the allegations in Plaintiffs’ Complaint would also entitle Engler to
   bring an action against Dear Author for the same statements identified in the Complaint, not including Engler in this litigation would potentially make Dear Author subject to a substantial risk of incurring multiple or otherwise inconsistent obligations.

When asked why she wasn’t a plaintiff, here’s my answer in a comment on a previous post:
Last I heard, Jaid/Tina was 90% owner. As for why she’s not a plaintiff, my understanding of the legal concepts is that it’s a jurisdiction issue.
It’s a general principle of law that to sue for damages, you have to sue where the damage occurred. If someone published allegedly defamatory information on the internet about you and the person posting it was in Iowa and you’re based in Ohio, then the alleged damage occurred in Ohio. So that’s why EC sued in Ohio. (Note: this is a simplification because jurisdiction can get complicated.)
Catch is, Jaid lives in West Hollywood, California, so any alleged damage would be in California, and an Ohio court would not have jurisdiction to determine or award damages. Had Jaid also sued separately, then there probably would have been a motion to join both the cases in federal court, which is used to dealing with mixed jurisdiction cases.
However, California has strong anti-SLAPP protection, so California’s not a good jurisdiction for this particular case. As I understand it, anyway. (And, again, IANAL and TINLA.)
Getting back to the ownership issue: even when one is 90% owner of a corporation, the legal interests of the company and the legal interests of the individual may diverge significantly over the course of a trial, and it’s best practices to have separate counsel. That doubles the legal fees. In some cases, it may make sense to fold the company, and then the minority shareholders may wish to fight that, and that’s a completely separate issue from the interests of the individual majority owner as a person.
The simple way around this would have been to sue in federal court from the outset.
However, I’m not convinced that ¶ 12(f) and 12(g) in the complaint were strong allegations. They felt more like hurt feelings to me.

Seventh Affirmative Defense: Lack of Actual Malice

When in doubt, always look to the Supreme Court case that’s the seminal ruling on defamation law.

1. Plaintiffs are general purpose public figures, or at least public figures in the context of Adult Romance publishers. Accordingly, their defamation claims are subject to the “actual malice” standard set forth in New York Times Co. v. Sullivan, which requires that the defendant made the allegedly defamatory statements with “knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” 376 U.S. 254, 280 (1964).
2. Dear Author at no point harbored any doubt as to the truth of the complained of statements, and had no reason to doubt their accuracy.
3. As actual malice is a requirement to establish liability for defamation in these circumstances, Dear Author cannot be liable for Plaintiffs’ defamation claims.

Dear Author’s Counterclaim

Document here.
Can be summed up as: because the suit was filed as an abuse of process—in part because Dear Author is exempt under the CDA and in part because the claims are baseless—Dear Author is requesting compensatory and punitive damages as well as costs.

What’s Next?

I’m guessing Jane Litte’s answer, along with a likely counterclaim, are coming up next. Courtney will post on both after Jane’s is filed. Unless there’s something particularly interesting, I’ll probably just post a link to her article when it’s up.
There’s also a hearing on the 29th about the TRO/preliminary injunction, i.e., taking the Curious post offline.

• publishing
• writing
• ellorascave
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Oct 2014: Ellora's Cave: Dear Author's Motion in Opposition

Earlier Documents of Note

1. Dear Author’s blog post, The Curious Case of Ellora’s Cave.
2. Ellora’s Cave’s lawsuit, complete with the TRO request. (included in removal to federal court document) I analyze the memorandum of law and the request to out anonymous commenters in this post.
3. The removal to federal court, which I posted the meat of the other day.

Opposition to Plaintiff’s Motion for Preliminary Injunction

In the first substantive response to Ellora’s Cave’s lawsuit, Dear Author’s attorney, Marc Randazza, has filed an Opposition to Plaintiff’s Motion for Preliminary Injunction, and Courtney Milan has graciously hosted the 25-page PDF and its exhibits. Exhibits: (Exhibit A, from Jane Litte; Exhibit B, from an editor hired in 2003; Exhibit C, from an author first published by EC in 2007; Exhibit D, from an author first published by EC in 2013; Exhibit E, from an editor hired in 2012; Exhibit F, from an editor hired in 2013; Exhibit G is a true copy of tax liens and Workers’ Comp liens against EC and Tina Engler/Jaid Black.)
Courtney found it just before retiring for the evening. I’ve read it and the supporting documents (not included in the 25 pages). Courtney will post her own notes in the morning, but I’m going to write up a few comments about turns of phrase that amused me. Because of the miracle of the internet, I’m going to schedule this post for when I’m asleep. 🙂
Update: Courtney’s post is here, and it links to the exhibits not in the original opposition document. Thank you to all the people who provided statements.

Seems Like Old Times

Footnote at the bottom of page 3:

The defendant has gathered what evidence she could, informally. However, should this case continue, and perhaps prior to the hearing on this motion, she intends to depose the management of Ellora’s Cave. But, despite the reasonable and exceedingly courteous efforts of counsel for Plaintiffs, Ellora’s Cave and its management do not appear willing to provide deposition testimony before the hearing.

So, Ellora’s Cave sued Dear Author, right? You’d think, given that they filed suit on September 26th, they’d love to have a quick deposition to ensure they get as much on the record to support their motion for a TRO/preliminary injunction, right?
This footnote basically says that EC’s stonewalling their own attorney who has been “reasonable and exceedingly courteous.”
If you read the order from the Brashear case, you’ll note this is a consistent tactic. Except in the DA case, EC’s the plaintiff, not the defendant.

The Ebola Footnote

Even if Ellora’s Cave were in perfect financial health, these are the symptoms of an ailing company. It is as if a perfectly healthy person were suffering from a severe headache, muscle pain, weakness, diarrhea, vomiting, and abdominal pain. A reasonable person might say, with all candor and right to do so, that the patient appears to have Ebola symptoms. Of course, the subject might counter that they were only suffering from a hangover. But, the First Amendment would permit either observation.

Courtney’s right that this could be perceived as party dickishness insofar as two of the Ellora’s Cave cover models are currently in mandatory quarantine for ebola after being on Amber Vinson’s flight when coming home from the annual Ellora’s Cave convention, Romanticon.
However, I think it unlikely that Randazza knew about this issue, and did not intend it thus. Update: Randazza clarifies in comments to Courtney that, indeed, he did not know.

The Goulash Analogy

Ellora’s Cave nit picks minor possible factual inconsistencies, as a child might try to remove peas from goulash. However, even if a child despises peas, it does not make the goulash itself poisonous. Analysis of a defamation claim like this is like reasoning with the child who complains that because there are peas in the goulash, the goulash itself is inedible.
The goulash here is savory, even if the plaintiffs would prefer not to eat the peas.

Ohio Provides Better Protection than the First Amendment

While this is the national standard, Ohio law provides for more protection than the First Amendment demands. Under Ohio law, “the plaintiff must demonstrate, with convincing clarity, that the defendant published the defamatory statement either with actual knowledge that the statement was false, or with reckless disregard as to whether it was false.”

Failure to Demonstrate Irreparable Harm

Plaintiffs claim that “[i]t is clear that Ellora’s will suffer irreparable injury if Defendants are allowed to continue to publish the Blog Publication on the internet.” Motion for Preliminary Injunction at 4. However, Plaintiffs provide nothing to support this. Irreparable harm requires a showing that there is an insufficient remedy at law. Furthermore, for the harm to be irreparable, there must be more than monetary damages. “The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.” Sampson v. Murray, 415 U.S. 61, 88 (1974). “A finding of irreparable harm is necessary before granting a preliminary injunction.” Bettcher Indus. v. Bunzl USA, Inc., 692 F.Supp.2d 805, 822 (N.D.Ohio 2010).

This is news to me (remember, I’m not a lawyer), but it’s fascinating. I’m guessing this has to do with one being a remedy at law and the other a remedy in equity.
So I looked it up on Wikipedia, and lo, apparently so. I’m a little rusty on this stuff, but at least I have good instincts.
In short: law remedies are things like monetary damages and equity remedies are things like injunctions or specific performance. “Inadequacy of legal remedies” in the quote above means that there isn’t money that can make up for the damage that’s caused.
In the Bluemile case cited below (which Randazza goes into more than I’ve quoted here), one company was impersonating another. There’s no way the impersonator throwing money at the trademark holder is going to make up for the damage that’s done. Therefore, it’s irreparable (in the “can’t be fixed with $” sense).
But EC presumably can monitor things like sales and royalties and know what’s going on with them at every moment. Even if they don’t monitor these things this closely, in theory they can. So, presumably, they can say, “well, this article cost $X in lost sales.” And then, if defamation were proved to be the cause of those lost sales (which is not easy), then there’s a remedy at law, so no remedy at equity is needed.
Now, if there were irreparable harm, that would need to be listed in the memorandum of law along with case law to support that. I have some ideas about what those kinds of things might include for EC, but it’s not my job to aid EC’s prosecution of its case—and a preliminary injunction wouldn’t help in any case.

The Section Every Author Should Read

pp. 16-18 where it talks about the public interest aspects of Dear Author’s blog, as well as the link to Author’s Rights When a Publisher Files Bankruptcy.

The Bluemile Cite

My first reaction when I read this case was an audible, “What the fuck?!?”
When I wrote up my own response, I wrote:

In my opinion (though, again, IANAL and TINLA), there is no similarity, and the “strikingly similar” made me wonder what quality pharmaceuticals the esteemed esquire had access to. In Bluemile, there was a clear intent to confuse the trademark held by the plaintiff and siphon off their potential customers by the defendant with a confusing domain name (bluemile.net). The defendant’s site was intended to be confusing.

Clearly, when someone’s trying to siphon off your business by confusing your potential customers, monetary damages aren’t enough.
Randazza covers this more deeply:

While Plaintiffs cite to Bluemile Inc. v. Yourcolo, LLC, in support of their Motion for Preliminary Injunction, the facts of that case are starkly different of the facts at hand. The only connection seems to be that a Preliminary Injunction was granted there and Plaintiffs are requesting one here.

Rick and I both laughed at that.

In Bluemile, the Southern District of Ohio confronted an intellectual property case and enjoined the defendant’s use of the plaintiff’s trademark, enjoined defendants from using a website confusingly similar to plaintiff’s name, which then used that website to publish statements that were already determined to be defamatory. That case was premised on Lanham Act violations and trademark infringement, and the defamatory statements were merely an accessory to the Lanham Act violations. Trademark violations are more readily granted injunctive relief because the irreparable harm is presumed in such cases. Too, Inc. v. TJX Cos., 229 F.Supp.2d 825, 838 (S.D.Ohio 2002), Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003).

Wait for it….

This is precisely the opposite of the law surrounding defamation.

Did you feel that slam dunk? I did. He goes on for another page and a half, too.

Standing

I remember studying jurisdiction until I was blue in the face, realizing I’d only begun to scratch the surface, but even I knew that the case had a problem with it.

Some of the comments Plaintiffs complain of specifically address Ms. Engler, who is not a party to this case. While Ms.[Litte’s] statements regarding Ms. Engler are not defamatory, they are also irrelevant unless and until Plaintiffs bring Ms. Engler into this litigation as a plaintiff. Plaintiffs lack the requisite standing to complain on behalf of Ms. Engler. “Elements of standing are an indispensable part of a plaintiff’s case.” Bourke v. Carnahan, 163 Ohio App.3d 818 (10th Dist. 2005). The onus is on Plaintiffs to demonstrate that they have suffered an injury, which is causally related to the defendants’ actions. Id. Plaintiffs are not entitled to recovery for statements made about individuals other than themselves. Statements about Ms. Engler’s personal life are not statements about Ellora’s Cave, and therefore, Plaintiffs lack the standing to sue over those statements.

Then, at the end of that section, Randazza adds:

If Ms. Engler wishes to join this case as a plaintiff, then the statements can be at issue. But, she is not here today, and she should not be permitted to litigate by proxy.

Bond, But Not James

Lastly, Plaintiffs have failed to offer up a bond, in violation of Fed. R. Civ. P. 65(C) and Ohio R. Civ. P. 65(C). Rule 65(C) requires the plaintiff post a bond, in order to ensure that damages may be accounted for, in the event the court later determines that the injunction was wrongly issued.

Per Randazza, it’d need to be a bond of at least $150,000.

Popcorn Good

I think the Internet is getting good popcorn value, here.

• publishing
• romance
• writing
• ellorascave
• miscellaneous

Oct 2014: Ellora's Cave / Dear Author Suit Removed to Federal Court

Jane Litte’s attorney, Marc Randazza (aka “First Amendment Badass”) has removed the case to federal court in the Northern District of Ohio. The federal case number is 5:14-cv-02331-JRA.
Additionally, DA has subpoenaed Google about the identity of a specific gmail account. Those were filed with the state court on 10/17.
Because federal court proceedings are almost entirely hidden behind a paywall (except for certain rulings), here’s the Amount in Controversy section from Randazza’s filing. Note that I’ve substituted Litte’s pseudonym for her legal name in the footnote.
I found the note about Ohio not permitting damages to be stated to be quite interesting. I hadn’t known that.

Amount in Controversy

The amount in controversy in this action exceeds $75,000.00. The Plaintiff only seeks a rote “in excess of $25,000” amount, and not a sum certain. Where the plaintiff has not plead any sum certain, in order to remove the case from state court to federal court, the defendant must demonstrate only that it is more likely than not that the amount in controversy is in excess of $75,000. Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir.1993).
The Plaintiffs’ prayer for $25,000 is not the result of any omission on their part. Pursuant to the Ohio Rules of Civil Procedure, if the party seeks more than $25,000.00 in damages, the plaintiff may not specify this in the demand for judgment. Ohio R. Civ. P. 8(A). Therefore, while the complaint only states “in excess of $25,000” on its face, it is clear that the amount in controversy is in excess of $75,000.
Each plaintiff alleges entitlement to money damages and injunctive relief against each defendant, “in excess of $25,000.00.” This would seem to create an amount in controversy of “in excess of $100,000.” However, even under other possible calculations, the amount in controversy exceeds $75,000.
Communication with counsel for Plaintiffs has confirmed that Plaintiffs also believe that the amount in controversy is in excess of $75,000.00, making statements that the amount of damages Plaintiffs will be seeking is quite large and growing. In fact, if Plaintiff were awarded a mere $25,001 (in excess of $25,000) as compensatory damages and twice that amount, or $50,002, as punitive damages, the total damages would be $75,003. The jurisdictional amount in controversy analysis must take into account the availability of punitive damages “unless it is apparent to a legal certainty that such cannot be recovered.” Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 408 (6th Cir. 2007) (quoting Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 572 (6th Cir. 2001)).
To determine whether the amount in controversy may be satisfied by the availability of punitive damages, the Court may consider verdicts and settlements in similar cases. See Leys v. Lowe’s Home Ctrs., Inc., No. 1:08-cv-1084, 2009 U.S. Dist. LEXIS 16097, 2009 WL 514291, at *4 (W.D. Mich. March 2, 2009). In Lake County, a jury awarded $750,000 in a similar defamation claim. Blatnik v. Dennison, 148 Ohio App. 3d 494 (Ohio Ct. App. 2002). More recently, in the Southern District of Ohio, a jury awarded $100,000. Young v. Gannett, Case No. 1:10-cv-00483. In another case involving the reputation of a schoolteacher and cheerleader, which must be worth less than the reputation of a large company like Ellora’s Cave, the jury awarded $338,000 in compensatory and punitive damages. Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (6th Cir. 2014) (Overturning jury award due to immunity under 47 U.S.C. § 230).
Not only do similar jury awards support the amount in controversy, but the Complaint and affidavit of Patricia Marks both make it clear that the plaintiffs value this case in excess of $75,000. The complaint alleges that there has been a loss of goodwill and reputational damage to the plaintiffs (Complaint at ¶30) and seeks punitive damages and attorneys’ fees. (Complaint at ¶31, 39, Demand). Further, the Complaint and Motion for a Temporary Restraining Order articulate that the Plaintiffs find the damages to be “irreparable” and apparently of such value that they are “impossible to quantify.” Meanwhile, seeking a TRO against speech must indicate that this is, at least, as important to the Plaintiff as a mere $75,000.
The Plaintiffs quest for injunctive relief and punitive damages are properly included in determining the amount in controversy. See In re Ford Motor Co. Crown Victoria Police Interceptor Prods. Liab. Litig., 2004 U.S. Dist. LEXIS 29971, 2004 WL 1170145 (N.D. Ohio May 19, 2004); Everett v. Verizon Wireless, Inc., 460 F.3d 818, 829 (6th Cir. 2006) (“The costs of complying with an injunction, whether sought by one plaintiff or many plaintiffs, may establish the amount in controversy”). In this case, the Defendants will attest that complying with the requested injunctive relief would cost them in excess of $75,000. The requested injunctive relief seeks to enjoin the Defendants from publishing anything about the Plaintiffs in any way, and requires that the Defendants violate their promise of confidentiality to their sources. In the event that either injunctive relief were granted, the Defendants would suffer at least $75,000 in losses, and would in fact, likely need to consider going out of business altogether. If a journalist can not protect her sources,¹ and if a journalist can be enjoined from writing about one of her primary subjects, then the journalists is surely damaged at least to the tune of $75,000 in either event.
Footnote in above paragraph. Note: I’ve substituted Jane Litte’s pseudonym for her real name.
¹ Ms. Litte’s right to protect her sources is of such value in this state that the legislature has chosen to ennoble it by protecting it by statute. O.R.S. § 2739.12. Litte’s home jurisdiction offers the same protection under Iowa’s common law. See Winegard v. Oxberger, 258 N.W.2d 847, 850, (Iowa 1977) (recognizing the “reporter’s privilege); Waterloo/Cedar Falls Courier v. Hawkeye Cmty. College, 646 N.W.2d 97, 102 (Iowa 2002) (“The privilege protects confidential sources, unpublished information, and reporter’s notes”). The evisceration of such a sacred right should most definitely be given a value in excess of $75,000.

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Oct 2014: Post-Romanticon: Axl & Taylor's Self-Imposed Ebola Quarantine

I’ve posted about this on Twitter, but I only amended my Romanticon post to include word of the quarantine.
However, given the fundraiser I just discovered, I’m copying the amendment into this post so it gets more attention and adding the fundraising link below.
Frankly, no one who goes to to any convention should have to fear coming down with something as horrific as ebola. ## First: Quarantine, the Origins Of

Quarantine comes from the Italian word quarantq, meaning 40: the number of days you had to wait before your ship could enter Venice. It was used to prevent spread of the plague. It didn’t work so well back then, mostly because disease transmission was so poorly understood, so that’s why all the gondolas in Venice are painted black.

Jaid’s Message and Axl’s Message

Jaid Black posted a notice about potential exposure to ebola. Dallas nurse Amber Vinson, who now is confirmed to have ebola, was in Akron during the same time period that Romanticon was held.

According to news reports, the infected woman, a healthcare worker who treated “Patient Zero,” was in Akron visiting family. She did not show signs of infection until already in Akron. The CDC has confirmed that she was definitely symptomatic while traveling from Cleveland to Dallas on October 13 so if you know anyone else on that flight please have them contact the CDC IMMEDIATELY.
Romanticon attendees (other than those on flight 1143) have nothing to worry about… according to the CDC. As they haven’t exactly been forthcoming with information, and we have no idea where in Akron this woman was, I am asking EC employees and Romanticon attendees in general, to self-monitor their health for the next 3 weeks. A list of symptoms can be found here: http://www.cdc.gov/vhf/ebola/symptoms/

Further, two of the Cavemen, Axl and Taylor (who are also both EC authors), were on the same flight as Vinson. After consulting with the CDC, they are both in self-imposed quarantine for 21 days.
Here’s Axl’s story.
Axl and Taylor appear briefly on this GMA segment speaking about their self-quarantine.
My hope is that everyone will be fine, but I’m sure thoughts and prayers are welcome. Axl gives his contact information in his facebook post if you wish to reach out to him.
Facebook links: Axl Goode and Taylor Cole takeitoff

The GoFundMe

Can be found here.
What we do know:

1. They were apparently sitting very close to nurse Vinson on the same flight. (See Daily Mail link below for pics.)
2. They feel it is in the safety of all concerned if they are conservative and self-quarantine. I applaud this, but it’s not cheap. (As to whether or not I’d contribute, the question is rhetorical, sadly.)
3. Unlike some of us, they don’t have the sort of job where they can work from home.

I think the Daily Mail really has the winning caption here: Ebola Strippers. That’s not a disease vector I’d ever want to have happen.
If you’re inclined to either contribute or spread the word, please do so.
I know there are reasons to not support GoFundMe because of their policies; I’m sure if you contact Axl there are other means to help if that’s an issue for you.

My Own Experience With Quarantining

When I was at Apple, I came down with shingles. One of my colleagues was pregnant, and as shingles/varicella is of particular risk to the unborn, I was asked to work from home until it cleared up.
Now, shingles is not particularly contagious. Truly. When kids have chicken pox, it’s the way kids interact with the world more than the contagiousness that’s the problem.
But I respected that, and worked from home for about a week. This meant I had to miss the Apple Worldwide Developer Conference that year. Again, it was best for all concerned that I did so.
However, I had a job where I could work at home. Not everyone is so fortunate.

Special Comment Policy for This Post

I’d rather not debate the merits of the fundraiser in the comments. Respectful questions are fine.

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• medical
• ebola-strippers
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Oct 2014: More Thoughts on SFWA Bulletin 200 Cover Controversy

Last week, I had an “aha!” moment, finally understanding what Mike Resnick was going on about. I wrote about the cover controversy earlier this year, complete with sample covers from the genre he was complaining about.
Here’s what Resnick said (click for pic of text, quoted below)> And a lot of it abounded in bare, raw, pulsating flesh, totally naked from the neck to the navel. No question about it. It’s there for anyone to see—and of course, since such displays seem to offend some of our members, to picket.

You know where I found it?
In the romance section. I’d say that just about every other cover shows a man’s bare torso, lean and muscular, usually with a few more abs than Nature tends to provide. The man’s head is rarely portrayed. Clearly these are erotic covers, designed to get a certain readership’s pulse pounding.

I’ve admitted that I haven’t spent a lot of time paying attention to Ellora’s Cave (link is to my posts on same), an erotic romance publisher, until recently.
When I was writing this post about their annual convention, something clicked.
Let’s look at their little video for BEA 2013:

Quite a different feel from the gardening book publishers, no?
Anyhow, it struck me:
Mike Resnick was trying to use a false equivalency between a professional industry publication and an erotic romance publisher’s book covers.
What’s particularly egregious about that, of course, is that Mike’s daughter, Laura Resnick, is a romance writer. You’d think he’d have seen her own book covers and know his statements were FoS.

• publishing
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• ellorascave

Oct 2014: Virtual Visit to Ellora's Cave Convention: Romanticon

Single-publisher conventions are fairly rare, but not unheard of. Ellora’s cave has had one, EC Romanticon, for several years. How many? According to this 2011 scrape of the ecromanticon.com site by archive.org, the 2011 convention was the third annual convention, so 2009 would have been the first. (The earlier conventions may not have been on a separate domain; the scrape I linked to is the first scrape by archive.org.)
What is Romanticon, you ask?
Well, I have a 2013 promo video for you. Ready?

So, there you go. The video very much focuses on the Ellora’s Cavemen, and a bit on the convention goers, but not at all on Ellora’s Cave writers. ## Let’s Talk a Bit About Convention Funding

I’ve got a lot of experience with fan-run science fiction and fantasy conventions, mostly with conventions significantly larger than Romanticon.
Romanticon runs a single track of programming. I’ve seen small conventions run this way, but I’ve also seen large ones (World Domination Summit is single track and around 3,000 people). It’s my understanding that Romanticon brings in around 400 300 (source: Glamour) people. Their venue’s grand ballroom seats a maximum of 500 people in banquet layout.
Registration ran $325; authors got a $25 discount. For sf/f con fans, that seems impossibly high (as most sf/f conventions are < $100), but it’s less than RT ($489)…on several levels. It’s more $ than most other romance conventions that aren’t writer-focused, though. (Writer-focused conventions will typically fly in agents and editors, and that adds up.)
Friday and Saturday night there are dinners, so that’s a good chunk of the registration cost.
For sf/f cons, the only people typically paid in any way are the guests of honor, where memberships are typically comped and hotel rooms are covered. Memberships for speakers may or may not be covered, or if covered they may be at a discount rate. For most GoHs, there aren’t any honoraria payments.
Functionally, the Cavemen are the guests of honor. One of the weekend events is picking the Alpha Caveman for the year, so Cavemen have a slot where they feature what they’re known for.

The Events

Let’s look at the events list:

Events for Non-Writer Attendees

• Bad Girls of Romance Karaoke Party
• Line Dancing with Taylor
• TwerkShop (Cleveland Exotic Dance)
• Fantasy Cavemen Cover Shoot (pose with a caveman as though you were on a cover) Note: this event’s open to the public
• Jaided Ladies Erotica Lounge (author readings, 2 sessions)
• Women’s Path to Pleasure
• Bling Your Badge
• Genius Geeks versus Bad Boys
• Screaming Orgasm—More Than Just a Drink
• Hoedown/Throwdown Party
• Kickin’ It with Caveman Kimo
• Lap Dance Lessons
• Dirty Quotes by the Dirty Dozen
• Beyond Vampires & Werewolves: Madlibs
• Beefcake Bonanza
• Golden Ankh Awards Party
• Bookfair and SEXpo Note: this event’s open to the public
• Pizza, Pajama & Bingo Party

Events for Writers (other than the panelists)

• Pow Wow with Patty—which was scheduled for Thursday afternoon (!).
• #1k1hr Writing Sprint (2 sessions)
• Jaided Ladies Erotica Lounge (author readings, 2 sessions)
• Publisher’s Parlor (2 sessions)
• Writer Organization and Optimization
• Sexy Writing 101
• Dirty Quotes by the Dirty Dozen
• How to Use Scrivener
• Writing Situations
• How to Research Erotic Romance, with or without the Flogging
• Golden Ankh Awards Party
• Bookfair and SEXpo (if published with EC)
• Not on the events list: Pitch sessions

As someone who’s scheduled speakers for numerous conventions: I note that Laurann Dohner is an attending author, but she is on exactly zero of the other events. A few years ago, Laurann signed a 75-book deal with EC, and she’s apparently EC’s best-selling author.
All I’ve got to say is: there’s a story there. I don’t know what it is. Last year, she was on a presentation:

Love to Love You, Baby: Sexy Songs and Steamy Scenes (Samantha Kane, Mari Freeman, Kristin Daniels, Mari Carr, Cait Miller, Laurann Dohner, JK Coi, Jayne Rylon, Desiree Holt): Which songs inspire all those super steamy love scenes in your favorite books? Time to find out. Match the song to the author, then match the scene to the book, and walk away with a prize! And maybe a new appreciation for heavy bass, driving drumbeats and sensual horn sections. 😉

(Added note: the reason is explained in comments, and don’t I feel like a heel for lampshading it. I wish you the best, Laurann.)

How Many Authors Came?

Year	# Authors Coming
2011	(not listed)
2012	(not listed, but I’ve been told it was 88)
2013	84 (list)
2014	37 (Aug 11 archive)
2014	38 (live site, not archive)

So, it doesn’t appear that Ellora’s Cave’s claim in its lawsuit that authors were scared off by Dear Author’s post is defensible. Instead of numbers going down between August 11 and the convention in October, the number of authors actually increased. The August 11 capture a week before the announcement of changes at Ellora’s Cave, so any changes in author loyalty would have been after then.
If anyone has names or numbers of authors for 2011 or 2012, I’d love a comment or email. Thank you!

About that Pow-Wow with Patty

Do any EC authors know what happened at the afternoon “Pow Wow with Patty” at #RCon14? I can’t find a peep. #notchilled

— Karen Booth (@karenbbooth) October 10, 2014

@karenbbooth I wonder if they had to sign non disclosure agreements. No video, audio etc.

— Mermaid Sharon (@Mojitana) October 10, 2014

Most probably didn’t know about it, since they moved it from Saturday to today during registration, when many weren’t there… @karenbbooth

— Carrie (@carriejeditor) October 10, 2014

http://t.co/GjKkj8g6k0: originally scheduled on Sat. from 3-3:50, NOT Thurs during registration. @karenbbooth #notchilled

— Carrie (@carriejeditor) October 10, 2014

So seriously, there’s no news being reported from Romanticon at all? Nada? There must be something….

— Karen Stivali (@karenstivali) October 10, 2014

@karenstivali The news is that there is no news. #RCon14 tag is a ghost town. Patty Marks talk was hastily rescheduled to today. *shrug*

— Mermaid Sharon (@Mojitana) October 10, 2014

I got nothing.

This Post Is Useless Without Pics

Well. Since you asked….
Linedancing. Looks like a snooze-fest numbers-wise. Feel sad for the Caveman on duty.

Cait Miller tweeted a pic with lots of Cavemen:

Anna Alexander tweeted a pic of the banquet table prior to the Hoedown/Throwdown. Here’s a color corrected version:

Kathy Kulig tweets a nice pic of herself with Caveman DeAngelo (the reigning Alpha Caveman):

The Lap Dance class was more popular, as Kathy Kulig tweets. No laps were present, apparently.

Kathy also tweets a pic of formal (Saturday) night. Guess dress code is different for the men.

Anna points out that yes, the dress code is really different….

Better pic from Jocelyn Dex:

Awards were given out:

Three ladies managed to get stuck in an elevator with Caveman Sinjyn:

A short written review by Diana Hunter.
Saved the best for last: Caveman Cisco instagrammed a photo from a photo shoot he did while in Akron:

So…About Next Year

I’ll just leave this tweet right here.

#RCon14 nearly over. I can’t wait to do it again next year!

— Mr Laurann (@MrLaurann) October 13, 2014

Then I’m going to invoke Courtney Milan’s piece, “Why is Tina Engler economically irrational? #notchilled” and talk about the convention thing for a minute.
There’s an old economics saying: a business’s primary economizing problem is money; a person’s primary economizing problem is time. (You may argue with me on the second one, but this is the opinion of people with money, so there’s that.)
Both money (given Amazon downturn in sales and recent staff layoffs mentioned in their August letter) and time (smaller staff, thus less time to give) are in shorter supply at Ellora’s Cave of late by their own reports.
First, if there are multi-year agreements to run the convention, it may cost more to cancel them than to hold them. This is something that needs to be closely looked at to see if it’s viable. One thing’s for sure, though: canceling earlier rather than later is typically less expensive. That offers the hotel more time to sell the space, and that’s often something that reduces cancelation costs.
Second, there are book sales, and outside of larger conventions like RT, it’s the single largest gathering of EC authors. Also, there’s a high author-to-member ratio.
Third, it’s a really different kind of convention, and there’s no close substitute for it. That’s not a reason to keep running it despite everything, but it can be a make-or-break factor if all else is neutral.
Yet, it’s hard to tell. If Romanticon actually turns a profit, even a slight one, for Ellora’s Cave, it may still be worth running the convention despite the time suck. There’s no cut-and-dried answer, though, and it’s not something an outsider can readily determine.

Post-Convention Update

Jaid Black posted a notice about potential exposure to ebola. Dallas nurse Amber Vinson, who now is confirmed to have ebola, was in Akron during the same time period that Romanticon was held.

According to news reports, the infected woman, a healthcare worker who treated “Patient Zero,” was in Akron visiting family. She did not show signs of infection until already in Akron. The CDC has confirmed that she was definitely symptomatic while traveling from Cleveland to Dallas on October 13 so if you know anyone else on that flight please have them contact the CDC IMMEDIATELY.
Romanticon attendees (other than those on flight 1143) have nothing to worry about… according to the CDC. As they haven’t exactly been forthcoming with information, and we have no idea where in Akron this woman was, I am asking EC employees and Romanticon attendees in general, to self-monitor their health for the next 3 weeks. A list of symptoms can be found here: http://www.cdc.gov/vhf/ebola/symptoms/

Further, two of the Cavemen, Axl and Taylor (who are also both EC authors), were on the same flight as Vinson. After consulting with the CDC, they are both in self-imposed quarantine for 21 days.
Here’s Axl’s story.
Axl and Taylor appear briefly on this GMA segment speaking about their self-quarantine.
My hope is that everyone will be fine, but I’m sure thoughts and prayers are welcome. Axl gives his contact information in his facebook post if you wish to reach out to him.

• conventions
• ellorascave
• publishing

Oct 2014: Twitter Hashtag for Promoting Non-EC Books by EC Authors #nonECbook

Susan Garbanzo asked me:

@deirdresm Maybe a specific hashtag for use by EC authors on your support list? #notchilled

— Susan Garbanzo (@Soenda) October 10, 2014

::smacks forehead::
I didn’t think of that, that’s why. She’s a genius.
Therefore, if you’re tweeting/instagramming about your non-EC titles, that seems to be a good way to find people who are looking for EC authors to support in the midst of the Dear Author lawsuit and any uncertainty surrounding it.
This also neatly separates the #notchilled free speech issue tweets from the #nonECbook promotion opportunities. Not everyone reading #notchilled reads erotic romance or erotica.
Plus, @BooksFoodShoes has already used it once, so that seems a good enough reason to keep using it.
Note: there is no requirement that you be otherwise eligible for the Ellora’s Cave Author Exodus Support Thread.
There are only two requirements.

1. You are (or were until recently) an Ellora’s Cave author.
2. You have at least one non-EC book to promote.

…OR…

1. You know someone who writes/wrote for EC
2. You want to recommend one of their non-EC titles.

Just—try to keep the quantities of tweets reasonable.

• marketing
• publishing
• ellorascave

Oct 2014: Ellora's Cave: and then Things Took a WTF Turn

I was looking for my dinosaur pictures, but I liked that one better.
I was working on a lovely post about technological shifts. Because I think it’s a factor in the history of Ellora’s Cave. And I was genuinely rooting for all the issues to be resolved and everyone to go happily on their way. EC resolving the suit with DA, picking themselves up and working out things with their authors, etc. And, you know, surviving in some form.
They snapped my goodwill today. Permanently. (See update at the bottom.)
I generally take people at face value, assume they’re telling me as much of the truth as it’s convenient for them to, and don’t try to over-read things I don’t know. I try to be charitable in my interpretations. The number of people I don’t wish to speak to is a very short list.
It’s hard to get on that short list. ## Ellora’s Cave Didn’t Tweet after August 11…Until Today

They had lots of books come out, right?

Did you know my debut work came out with EC on 8/15? No? Because their social media has been quiet. Until now. To praise STGRB. #notchilled

— Phoebe Chase (@Phoebe_Chase) October 8, 2014

Official EC Twitter hasn’t posted any book promo (or anything) for 58 days. Now they’re thanking STGRB for their hard work. #notchilled

— Lynda the Guppy (@FishWithSticks) October 8, 2014

STGRB = Stop the GoodReads Bullies, a misguided group of people who feel that people who leave “too many” negative reviews are “bullies.”
Ellora’s Cave still hasn’t promoted their releases for the last few weeks, because throwing in support with STGRB was so much more important.

I Aim Jenny Trout at the Issue

I know when to use a tactical nuke.

I just want to hear @Jenny_Trout wax poetic about this tweet: http://t.co/YjGCZbkHRt #notchilled

— Deirdre Saoirse Moen (@deirdresm) October 8, 2014

As she succinctly put it:

The publisher of one of my books, @ellorascave, officially endorses STGRB? Don’t buy my book, or any book, from them.

— Jenny Trout (@Jenny_Trout) October 8, 2014

This is yet another case of someone acting like a little shit, then taking the support of STGRB, who are even shittier, to defend them.

— Jenny Trout (@Jenny_Trout) October 8, 2014

qui cum canibus concumbunt cum pulicibus surgent, @ellorascave.

— Jenny Trout (@Jenny_Trout) October 8, 2014

Anyone in publishing who supports a website that has endangered bloggers loses all credibility. STGRB attacks your customers, @ellorascave .

— Jenny Trout (@Jenny_Trout) October 8, 2014

Some people need to look at who their allies are and really reconsider their method of implosion.

— Jenny Trout (@Jenny_Trout) October 8, 2014

If STGRB wants to defend you, you’ve either done something really awful, or they think they ride you for their gain. They are leeches.

— Jenny Trout (@Jenny_Trout) October 8, 2014

@literarypanckes Actually major anti-bullying campaigns have requested that STGRB not use their graphics or names on the site.

— Jenny Trout (@Jenny_Trout) October 8, 2014

@literarypanckes STGRB has, in the past, posted the real names, home addresses, employers, some people’s daily schedules (one person took

— Jenny Trout (@Jenny_Trout) October 8, 2014

@literarypanckes walks every day at the same time) of bloggers who have left “too many” bad reviews on Goodreads.

— Jenny Trout (@Jenny_Trout) October 8, 2014

@literarypanckes They don’t say, “Go stalk and harass these people,” but it’s heavily implied.

— Jenny Trout (@Jenny_Trout) October 8, 2014

I HADN’T EVEN THOUGHT OF THAT. EC absolutely just endorsed a hate site that has targeted one of their authors in the past. #notchilled

— Jenny Trout (@Jenny_Trout) October 8, 2014

At least one that I know of: Me. We’re supposed to be loyal to our publishers, but it doesn’t go both ways? #notchilled

— Jenny Trout (@Jenny_Trout) October 8, 2014

I want my fucking rights back. #notchilled

— Jenny Trout (@Jenny_Trout) October 8, 2014

This is what STGRB does and this is who EC has chosen to align themselves with. #notchilled http://t.co/8RBeI5tr2m

— Phoebe Chase (@Phoebe_Chase) October 8, 2014

Here is one of two posts I made this year about STGRB. Why would anyone want to align with them?: http://t.co/12fTL5iYS1 #notchilled

— Jenny Trout (@Jenny_Trout) October 8, 2014

And here’s a post I made after STGRB threatened that they were “keeping an eye on” me. http://t.co/SrzUNL8DXj #notchilled

— Jenny Trout (@Jenny_Trout) October 8, 2014

By all means, if you’ve alienated a bunch of reviewers, the very next thing you should do is alienate even more of them.

Information Request from @tejasjulia

If any of you can provide.

I’ve heard talk of EC “deducting for overpayment of royalties” recently. Anyone want to go public with $$ on the “correction”? #notchilled

— tejas (@tejasjulia) October 8, 2014

Department of :O

WOW. Tina really doesn’t seem to be in touch with reality, does she. #notchilled pic.twitter.com/xIver9REWX

— tejas (@tejasjulia) October 7, 2014

It’s not a beautiful day. Yet.

Department of WTF Updatery

@ReeCroteau @Phoebe_Chase For the love of God, what now? We don’t currently have a social media person! And what is STGRB????

— Jaid Black (@jaidblack) October 9, 2014

Trying to snippet other bits of conversation will lack too much context.
However: Ellora’s Cave doesn’t currently have a social media person. Which means that there’s an explicable lack of Twitter promotion since, oh, sometime around 8/11/14, but not an explanation for the STGRB tweets of today.
I tried to keep it simple:

@jaidblack @ReeCroteau The official @ellorascave Twitter is promoting a hate group, but not its own authors. That was my point.

— Deirdre Saoirse Moen (@deirdresm) October 9, 2014

I think more popcorn evenings are in my future.
Since Jaid didn’t know what STGRB meant, it may take a while….

@ReeCroteau unless they are funding ISIS I don’t have enough hours in the day 2 worry about them.

— Jaid Black (@jaidblack) October 9, 2014

So there’s that.
Meanwhile, there’s the mystery of who is posting using the official Ellora’s Cave Twitter account—and whether said person posting today is currently with the firm.

10/12 Update

Props where due. @ellorascave deleted pro-STGRB tweets and started promoting their authors like they had been pre-8/11. #notchilled

— Deirdre Saoirse Moen (@deirdresm) October 12, 2014

• ellorascave
• publishing

Oct 2014: Book Reversion Game Theory & Consent

Let’s say the following:

1. You’re a small press with a lot of authors, most of whom still have books that you get right of first refusal on their next books, either in the same genre or in the same series.
2. You’ve had a downturn in sales, and that means staff cuts, including editors that would accept/reject and/or edit new titles.
3. There’s a lot of grumpiness out on the ‘net, and you need some good PR.

Right now, this is EC’s defense: “Authors hate working with Ellora’s Cave so much, they formed a massive conspiracy to escape.” #notchilled

— Courtney Milan (@courtneymilan) October 4, 2014

What are your best moves?

Things I hadn’t Considered About Right of First Refusal Clauses

When I started looking at romance publishers a couple of years ago, I found this clause of Samhain’s:

5.3. If I contract the first book of a series with Samhain, do I have to give you first refusal on subsequent books in the series?
No. Samhain contracts one book at a time. We hope you’ll love working with us enough to send us all your other books, but we want you to be free to make that decision for yourself.

I hadn’t realized the prior association of Samhain’s founder with Ellora’s Cave, but I found that to be an interesting clause.
Of course you’d rather have authors writing for you who want to write for you.
Also, the more I think about it, the more I wouldn’t sign a right of first refusal clause unless there were an advance involved, where the reversion fee’s some explicit portion of the advance.

The Cold Harsh Realities of Series Numbers

Here are the current Amazon rankings for the first six volumes of H. M. Ward’s The Arrangement, a bestselling indie new adult series that’s currently up to 16 books. (Which, frankly, this series is like crack for me. Loved it.)

1	656
2	612
3	638
4	711
5	755
6	789

The cold, harsh reality of series is that, overall, the later books in the series sell less well than the earlier books in the series. Some percentage of readers never pick up that next volume. Sure, there are times when the newer books sell better—like when they’re first released. In the long run, though, they will tend to sell less well.
Ergo, the value of that next book in the series is necessarily lower than the income from the previous books.
For a troubled publisher, some writers may feel, as Lolita Lopez/Roxie Rivera (hell of a #micdrop post) apparently does, that not writing more books in the series is the right answer for them.
If you’re the publisher who’s published, say, books 1-5, and there will be no book 6, then the revenue of books 1-5 will tend to decrease over time. If, however, another publisher (including self-publishing here) publishes book 6, and books 1-5 are still listed on the author’s website, then there will still be some level of increased demand for books 1-5.
I read a lot of authors. I mostly don’t read their blogs. When I do look them up, I tend to look at their website for new books.
So what’s the publisher’s best strategy here?
Releasing the author from right of first refusal for the next books in the series, in exchange for which the author puts the publisher’s books back on their website for, say, a year.
But…but….

Consent, People

I haven’t really seen this come up, which kind of surprises me given the subsection of romance Ellora’s Cave is in.
A lot of their books are about the boundaries of consent. BDSM, for example.
What struck me in Lolita’s post: she’d essentially said she no longer consented to future publication from Ellora’s Cave.
It doesn’t matter why someone no longer consents. Contractually, it may, but consent is important, and it really, really gets me that there are, in fact, so many consent issues at the heart of this debacle.

Slower Paying?

One of the data pieces that’s been corroborated by several authors, including Lolita Lopez (at the link above) and Cat Grant: the payments, once regular, are alleged to have been getting slower.
Several authors have alleged they received their payment for May royalties at the end of September (4 months later). Lolita alleged she received December’s payment (assuming this is for royalties received in November) in mid-February, which would be 2-1/2 months later:

In February 2014, I received my 2013 Form 1099 from Ellora’s Cave. It included $13,354.79 worth of income that I did not receive in 2013. In fact, a few days after my 2013 Form 1099 arrived, a royalty check with a December 2013 date on it finally made its way into my mailbox. That’s right. A royalty check that was cut in December of 2013 took more than 6 weeks to arrive in my mailbox. The amount was enough to push me over the income limit for the next hop in tax rates so the IRS slapped my hand with a fine for underpayment.
The accounting firm that I use was not amused by this. They encouraged me to file a complaint with the IRS, but I declined. I paid the fine and the extra taxes. Clearly, I should have listened to the professionals. Hindsight, right?

In an ideal world, the payments for authors would be put immediately into a separate account. Assume 45%, then fix it for the amounts that are less (I see some sales are 40%). There would be no need to pay slower because the money would always be available on time for the authors.
Ergo, the implication when royalties are being paid slower like this (or, as others have reported, no check at all arrived for a given month): the company is using the received royalty income for operational expenses instead of setting it aside for the authors.
Edited to add this paragraph: one of the confusing parts of the various author accounts: it’s not clear if people reporting missing checks were meaning they never received a check for that month (let’s say April), or if they never received any check in April, but may have received royalties they expected to receive in April in a subsequent month.

Chop the Long Tail

With over 800 authors, some of those authors are going to be bringing in peanuts and others whole food trucks. Release the authors that are consistently not performing.
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).
Probably, that’s more than half the authors. It’ll take more work temporarily, but it’ll be less work long term. Then the business is focused on the higher-performing writers.

Release the Remaining Long Tailers from Right of First Refusal

In addition to releasing existing books from the end of the long tail, release the right of first refusal for those people, too. (Might even want to make it for a larger pool.)

Charging for Reversions

Victoria Strauss runs Writer Beware, a site that warns about predatory practices and predatory companies in publishing.

@victoriastrauss I thought I remembered that you said somewhere that publishers shouldn’t be charging for reversions? (except advances)

— Deirdre Saoirse Moen (@deirdresm) October 5, 2014

@deirdresm Correct. I don’t think there should be any fees associated with reversion–a red flag if you see this in a contract.

— Victoria Strauss (@victoriastrauss) October 5, 2014

@deirdresm I’ve also heard of pubs who ask for reversion fees even if there’s nothing in contract to allow this.

— Victoria Strauss (@victoriastrauss) October 5, 2014

@deirdresm No matter how pub justifies it, I think it’s abusive.

— Victoria Strauss (@victoriastrauss) October 5, 2014

Contract One Book at a Time

The editorial staff has shrunk. Money’s tighter than it should be. People are complaining. The future isn’t looking as bright as it used to.
Only contract the books you can afford to edit and produce. Given the changing market conditions, an agile approach is needed here: limit scope of future projects.
D. Renee Bagby/Zenobia Renquist has quite the post on her attempt to get reversions for twelve proposal titles.
So apart from the fact that it sounds like EC is intending to publish the books outside their contract terms (and wouldn’t that be an interesting DMCA takedown quarrel?), here’s the gotcha, in the form of a letter from EC CEO Patty Marks (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.

So what do you do? Only contract multiple books from people who already are the highest sellers.
Renee/Zenobia has said that she was not released from twelve books under contract. Yet, in the same post, she shows that her royalties for May would not put her in that group of “a handful of the highest sellers.” And yet, EC doesn’t want to release those books back to Renee/Zenobia despite it appearing that would put her in the negative return on investment?
These things have to be business decisions and not emotional ones. There’s an old economics maxim:

If the expected added benefits exceed the expected added costs, do it. If not, don’t.

If Renee/Zenobia were to self-publish, she’d undoubtedly do better, and EC wouldn’t lose money. Isn’t that win/win?

Consent Is Key

As a publisher, you want readers, reviewers, and authors to stick with you through tough times. You want them to continue to consent to be in your corner.
Those perceptions can be managed if you look beyond initial blame and hurt. Win/win negotiations are still possible.
Respecting the word “no,” however phrased, is key.
Related: Coerced Consent: When “Yes” Really Means “No”
The image in this post’s header is free for you to use. Details and a higher-resolution copy are over here.

• ellorascave
• publishing

Oct 2014: The Internet Wants Its Popcorn, Ellora's Cave

First, there’s an Ellora’s Cave Exodus Support Thread update further down.

Dear Author/Jane Litte Defense Fund

SBTB’s Jane Wendell has set up a gofundme for DA’s defense fund. She’s also offered non-gofundme ways to contribute.

Many people have been asking if and how they can contribute to Dear Author and Jane Litte’s legal defense. Consequently, this campaign was created. The Dear Author Jane Litte Legal Defense Fund will be run through Go Fund Me. Any donations made to this fund will be used for Jane Litte’s defense against the defamation suit filed against her and Dear Author Media Network LLC by Ellora’s Cave. You can read more about the suit at Dear Author.
Why a fund?
Because lawsuits are expensive (that’s why they’re so often used as a threat, if you’ve ever wondered). Because of that, and because the duration of the litigation is undetermined, Jane will need financial assistance. Jane’s attorney, Marc Randazza, is contributing by discounting his hourly rate. Even with a generous discount, it’s still expensive.
Jane Litte has set aside $20,000.00 of her own funds to fight this defamation suit and has paid the large retainer out of the fund but that money will be depleted quickly as the case progresses.
If you’d like to donate to the legal fund, you can follow this link to the GoFundMe site, and make your donation. Please note: these are NOT tax deductible donations, as this is NOT a 501(c)3 not-for-profit
entity.
All funds will be used for Jane’s legal defense, minus the fees charged by GoFundMe, and because we don’t know what the end result will be, we have no way of knowing what the total amount required will be. If there are any funds left over when the suit is finished, they will be donated to the Society of Professional Journalists Legal Defense Fund (http://www.spj.org/ldf.asp).
If the fees do not exceed $20,000, we will attempt to refund the donations per the GoFundMe policies (http://support.gofundme.com/entries/22603558-How-do-I-issue-a-refund-to-a-donor-). Countries with the following currencies are supported: $ USD, £ GBP, $ CAD, $ AUD and € EUR.
If you’d like to use an alternate method to contribute, there are two options available. First, if you’d like to use a credit card, you can send a contribution via Paypal to jane@dearauthor.com. Please make sure to earmark the funds “Jane Litte/Dear Author Defense Fund.” As stated previously, if the total costs for the lawsuit are lower than $20,000.00, Jane will refund the monies donated.
If you’d prefer not to use a credit card, please email Sarah at sarah(AT)smartbitchestrashybooks.com.
Any amount that you can contribute is most appreciated.

They’ve raised $36,000 so far. Amazing.
To me, that says one thing: The internet wants its popcorn.
Perhaps the single most amazing contribution is one from Lolita Lopez aka Roxie Rivera.

Lolita Lopez / Roxie Rivera

She’s written a truly heartwrenching post, Ellora’s Cave. The Grabbed Series. #notchilled tl;dr: she’s walking away from her Ellora’s Cave series.
Lolita’s one of the more successful Ellora’s Cave authors, but her daughter’s disabled, and the money from Lolita’s writing goes toward helping take care of her daughter’s future.
It’s a crappy situation to be in. I know I’ll be checking out her non-EC titles.

Some Additional Notes About the Ellora’s Cave Author Exodus Support Thread

I’ve been in contact with a few EC authors who aren’t ready to be included on the list. That’s fine. It’s still a resource that’s there for you later if you wish. Also, if you don’t want to be listed, that’s also fine.
Initially, I added people who’d posted somewhere. Not all were aboard with that. I overstepped with a few people, and I’m sorry for that.
There’s a story that someone asked EC for a reversion, then got an email that said EC was reverting. Then the author said something and EC apparently changed their mind. I’m not sure how that’s possible, given that they don’t have the rights to grab back again, but there it is.
So: if you’re in doubt, or are trying to revert your works, please take your time. We’ll still be here for you.
Plus, grief has no timeline. Many of you are still reeling in the sheer WTF? of what happened, and it’s only been a few weeks. Some of you have years of careers—and it’s just not possible for everyone to switch their hearts around that quickly, especially if they’ve been treated well over the years.
So, I’m not going to add additional people unless they ask or unless I’ve confirmed it with them. You can comment here, you can email me (deirdre@deirdre.net), you can tweet me (@deirdresm), you can message me on facebook (@deirdresm) or Absolute Write (Deirdre). Whatever you’re comfortable with. I’m also @deirdresm on ello, but I don’t really have a feel for that yet.

Note of Potential Future Conflict of Interest

I’ve applied for a position (not in publishing) where blogging/tweeting about the ongoing EC issues would be a conflict of interest if I get the position. I’d really like the job, so I’d appreciate some warm thoughts that I’ll get it. There are plenty of other people who can pick up the slack.
I’ll still keep the EC Author Exodus Support Thread updated as it’s an ongoing project.
If I suddenly stop mentioning the EC issues and don’t respond about certain kinds of things, I haven’t been bought out or silenced. I made a choice about where I’d like my career to go, and that is a side effect with this particular position.

• publishing
• writing
• ellorascave

Oct 2014: On Ellora's Cave's Request to Out Anonymous Commenters

tl;dr: The request to out anonymous commenters in the Ellora’s Cave lawsuit isn’t a part of the complaint or any motion; it’s in a memorandum of law, tacked on without any supporting legal citations, and not phrased as a request for the judge to do anything.
Much has been made about the request in the Ellora’s Cave lawsuit against Dear Author about the request to out the anonymous commenters on the Dear Author post at the heart of the lawsuit. The complaint is embedded in this post at The Passive Voice if you wish to follow along.
I’m not a lawyer (and this post is not legal advice), but I am something of a legal ruling groupie. I’m fascinated by the law, sometimes finding myself reading judicial opinions for the sheer joy of judicial language use. Back in the dot bomb era, when I wondered if programming would ever snap back to the pre-bubble normal, I took paralegal classes, including legal research, anticipating a potential career change. That said, my education was general, California-specific, and I didn’t finish the program. So, not only am I not a lawyer, I’m not a paralegal, and I’m not familiar with Ohio law at all, case law especially.
Here’s how my understanding of a judge’s role changed during that time. Essentially, a judge’s purpose is to make rulings within their legal ability to do so about questions properly raised before them. As a general rule, they can do nothing unless something is asked (“moved” or relief prayed for), nor can they do something unless they have the legal authority. Well, they can, but it’ll likely get overturned, and no judge likes that.
At the very end of the PDF (p. 21 of 22) appears this zinger:

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

Let’s look at that in the scope of the document as a whole, sticking to general legal principles.

Structure Is Important

First, legal filings have a structure. The structure differs somewhat jurisdiction to jurisdiction. Here are the sections in the filing in DA’s case:

1. pp 1-8: Complaint and claims for for relief.
2. pp 9-14: DA post that EC was complaining about. Note that this does not include the anonymous (or pseudonymous) comments.
3. p 15: Motion for temporary restraining order.
4. pp 16-22: Memorandum in support of the motion. The anonymous commenter request appears here.

Essentially, a motion asks a judge to do something, and the memorandum in support tells the judge why they have the authority, based on legislation and prior case law, to act in mover’s favor. So: this is what we want you to do and this is why you should do it.
Before we get into all that, let’s get into controlling vs. persuasive case law for a minute, but be aware this is a gross oversimplification. Essentially, case law is controlling if it’s in the “chain of command” of courts from the court hearing the case, and is considered mandatory for the court to consider. However, the details of the case may mean that ruling isn’t directly relevant.
Persuasive case law, well, maybe someone in Hawaii wrote a great ruling that happens to address the issue very succinctly, but there’s nothing in Ohio law that’s quite as close. So an attorney might cite the Hawaii case in an attempt to persuade the judge. The judge, however, is not required to use the Hawaii court’s reasoning in their ruling.
With all that in mind, let’s look at the case citations in the memorandum.

TRO Memorandum Case Citations

There are seven cases cited (excluding references to other cases) in the TRO’s memorandum, and I’ll discuss each briefly.
Perhaps of note is that all cases cited for defamation are cases where the parties were ruled against in the citations. Sometimes, cases where the plaintiff loses make for the most interesting (and valuable) rulings, so I’m not sure that’s indicative of anything. I just found it amusing.

1. Mike McGarry & Sons, Inc. v. Robert Gross, et al

This ruling lays out what’s necessary in Ohio to get a TRO. You can read the ruling here.
This case is in the Eighth district, and Akron’s in the 9th, so my understanding is that this is persuasive, not controlling. Given that there’s a controlling case with similar wording, why bother with this one?
There are four criteria that have to be met:

A party requesting a preliminary injunction must show that: (1) there is a substantial likelihood that the plaintiff will prevail on the merits, (2) the plaintiff will suffer irreparable injury if the injunction is not granted, (3) no third parties will be unjustifiably harmed if the injunction is granted, and (4) the public interest will be served by the injunction. Procter & Gamble Co. v. Stoneham (2000), 140 Ohio App.3d 260, 267.

In the case cited, here’s the example of irreparable harm. One guy ran a painting company, then re-joined his former employer, then left to found a competing firm. It was found that he was soliciting his former employer’s clients to come with his new, competing firm. That was determined to be irreparable harm.

Brendan McGarry testified that all of the clients that Gross admitted to conducting business with were McGarry & Sons’ clients. (Tr. 67). Attempting to start one’s own business by taking away customers that were serviced by a former employer is precisely the type of irreparable harm that a covenant not to compete is designed to prevent.

So, not particularly relevant as a whole.

2. University of Texas v. Camenisch

This is a US Supreme Court case.
It’s a case about a deaf student and who should pay for interpreter accommodations.
“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held,” then I must be missing something because I don’t understand how that applies in this case. It’s cited in the next ruling, and that one line’s cited in the memorandum, but I don’t get it.

3. Midwest Retailers Association, Ltd. v. City of Toledo

This case cites the quoted sentence in the previous ruling. The case was about a new law requiring certain retailers to have 24/7 surveillance cameras, and they wanted a preliminary injunction to prevent the law from taking effect while the case was heard. The judge converted this to a temporary restraining order against the new law and granted it. A good chunk of the ruling is about the fourth, fifth, and thirteenth amendment consequences of the law.
It’s cited here because of the way it weighs the relative factors in granting a TRO, and it’s controlling for the Akron area. Unlike the first ruling, it uses this wording as the criteria:

To grant either form of injunctive relief, a court must consider: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent a stay; (3) whether granting the stay would cause substantial harm to others; and (4) whether the public interest would be served by granting the stay.” Northeast Ohio, supra, 467 F.3d at 1009; see also Rios, supra, 345 F. Supp. 2d at 835.

So if that’s the controlling opinion, why the first two? I don’t get it.
It initially jarred me that this ruling was written in first person. It hadn’t stuck out to me how rare that was, though it seems more common in dissenting and concurring opinions.

4. Hersch v. E. W. Scripps Co

Here’s the ruling.

In the case at bar this court must determine whether a “stupid act” is substantially synonymous with an exercise of “poor judgment” and “impropriety,” or whether it connotes a greater opprobrium.

I have to admit, this sentence made me laugh. Irony?
Also:

[T]his court is persuaded by the evidence before the trial court that the characterization of the conduct of attorney Hersch as “stupid” is either true or is an exceedingly charitable assessment of his behavior.

And, in the end, the publication was ruled to be not defamatory.

It is the considered opinion of this court in view of the posture of the evidence in this case, that to be charged with having “acted stupidly” carries no greater opprobrium than to be charged with having committed an impropriety and with having exercised poor judgment. Under the authority of Williams v. P. W Publishing Co., supra, this court is persuaded that, as a matter of law, the summary of Judge Zingale’s remarks contained in the Cleveland Press article was not so false and defamatory as to serve as the basis for an action for libel.

If anything, this may be the most relevant citation of all, but not for the reason esteemed counsel might expect. 😉
Either “true” or “exceedingly charitable,” huh?

5. Am. Chem. Soc’y v. Leadscope, Inc.

You can read the ruling here. From the case summary:

In determining whether a statement is defamatory as a matter of law, a court must review the totality of the circumstances and read the statement in the context of the entire publication to determine whether a reasonable reader would interpret it as defamatory.

One of the propositions of law discussed in the ruling is this:

Damages for defamation must be based upon harm caused by the defamatory statements, as distinct from harm caused by a public lawsuit or other proceeding.

So the interesting thing here is that the defamation claim? Lost in this case.

We reverse the appellate court’s decision finding that the trial court did not err in overruling ACS’s motion for judgment notwithstanding the verdict on Leadscope’s counterclaim for defamation. We hold that when reviewed under the totality of the circumstances and in the context of the entire publications, ACS’s statements in the internal memorandum and its attorney’s statements in Business First are not defamatory as a matter of law. […]
The cause is remanded to the trial court with orders to vacate its judgment for Leadscope on the issue of defamation.

The short version is that ACS essentially claimed that Leadscope stole their invention and Leadscope countersued with defamation claims. The ruling (and dissent and concurring opinions) is all about the nuances of qualified privilege, and that doesn’t seem to be applicable to the way it’s cited in the EC TRO memorandum.
I particularly recommend J. Pfeifer’s dissenting part about the defamation case on pp. 40-49.

ACS, “one of the world’s leading sources of authoritative scientific information,” announced to an audience that included the scientific world and the financial world that virtually everything that Leadscope was built upon was stolen. A few words to the right audience can be ruinous. And the jury determined that those words were ruinous to Leadscope, Blower, Johnson, and Myatt. The majority has not demonstrated why those jury verdicts should not stand. […]
In both instances—the employee memorandum and the Business First article—the statements made by ACS were false, were made with the knowledge that they were false, injured the reputations of Leadscope and the individual defendants, and adversely affected them in their business.

But still ruled not defamatory. Interesting case to cite from that perspective.

6. Bluemile, Inc. v. YourColo, LLC

You can read the injunction ruling here. From the EC lawsuit:

The facts are strikingly similar to Bluemile, Inc. v. YourColo, LLC. In Bluemile, the plaintiff, an Ohio corporation, sought a temporary injunction against the defendant, who owned a business claiming the same business name.

In my opinion (though, again, IANAL and TINLA), there is no similarity, and the “strikingly similar” made me wonder what quality pharmaceuticals the esteemed esquire had access to. In Bluemile, there was a clear intent to confuse the trademark held by the plaintiff and siphon off their potential customers by the defendant with a confusing domain name (bluemile.net). The defendant’s site was intended to be confusing.

According to Plaintiff, Defendant uses the website to misdirect traffic through malicious use of Plaintiff’s registered trademark and post false and misleading information about Plaintiff’s products to Defendant’s benefit and Plaintiff’s detriment. Thus, in the Court’s view, Plaintiff is likely to succeed on the merits of some or all of its claims.

None of the above is true—or claimed to be true—in the Dear Author case.
In the Bluemile kind of egregious behavior, it strikes me that a temporary/preliminary injunction is the only possible answer.

7. Guion v. Terra Marketing

This is a Nevada Supreme Court case from 1974, and I’m unaware of it being controlling case law for Ohio. Besides, Nevada. Odd state. (Says the Californian.) Here’s the ruling in question.
So the case here is that the defendant put up signs visible to the plaintiff’s potential and actual customers, that said:

A Terracor representative threatened to kill me! What next, Rick Johnson. I regret having done business with a Terracor representative. Doing business with a Terracor representative introduced me to a new low in ethics.

The case hinged partly upon whether or not the party making said threat was a Terracor representative, and hence on the truth or falsity of the statement. But—the order of magnitude of the statement here is way different than the Dear Author case and claims.
Which reminds me. Nowhere in the DA post, The Curious Case of Ellora’s Cave did DA claim that anyone having issues with payment was currently/recently an employee. My take, which may be incorrect, was that it was about issues freelancers and authors were having.
And yet, one of the false statements claimed in the lawsuit (p. 3) is:

a. That employees of Ellora’s are going unpaid when in fact they are being paid.

Surely there’s a case somewhere in the last forty years that’s controlling that’s more relevant. Surely.

Some Humor Because You’ve Stuck With Me This Far

One of my favorite legal writers of all time is retired (forcibly) US District Court Judge Samuel B. Kent, especially Bradshaw v. Unity Marine.

Defendant begins the descent into Alice’s Wonderland by submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims. See Gonzales v. Wyatt, 157 F.3d 1016, 1021 n.1 (5th Cir. 1998), cert. denied, 528 U.S. 1118 (2000). That is all well and good–the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court’s water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie.

(So, persuasive, not controlling.)

Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although Plaintiff does at least cite the federal limitations provision applicable to maritime tort claims. See 46 U.S.C. § 763a. Naturally, Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff “cites” to a single case from the Fourth Circuit. Plaintiff’s citation, however, points to a nonexistent Volume “1886” of the Federal Reporter *671 Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court’s dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters (in this case an alleged defamation committed by the controversial G. Gordon Liddy aboard a cruise ship at sea) require the application of general maritime rather than state tort law. See Wells v. Liddy, 186 F.3d 505, 524 (4th Cir.1999) (What the …)?! The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff’s counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). And though the Court often gives great heed to dicta from courts as far flung as those of Manitoba, it finds this case unpersuasive.

Again, persuasive not controlling, and unpersuasive in the end.
And, my favorite part:

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties’ briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter.

Getting Back to the Request to Out Anonymous Commenters

It’s been a long post, so here’s anonymous commenter request again:

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

So, EC is asking Dear Author (et al) for the names of the anonymous commenters on the blog to stop the propagation of that post.

1. It’s the readers, not the commenters, who are going to spread whatever was in the post. The commenters are there for internal engagement (within the context of the post), not external engagement (between the post and the outside world). Commenting does not in fact spread the post.
2. EC may want the sources of DA’s information, but those people are not necessarily anonymous commenters. Or pseudonymous commenters. Or commenters. They may never have engaged with Dear Author publicly at all.
3. As SBTB commented, the Streisand Effect pretty much ensures that the Internet will remember, in glorious detail, any attempt at censorship.
4. Note that the statement does not ask the judge to do anything.
5. Having skimmed more than two hundred pages of case law (so you don’t have to), I don’t see a single case that supports the request to out the anonymous commenters. The request is aimed at Dear Author, not the judge, and is in a curious place.

The average person, however, will read that line, not take the context into account, and think it means more than it perhaps does.
Which is why I think it’s just thrown in there for the chilling effect: “We’ve outed Dear Author’s identity; you’re next.”

See Also

Beware: Anonymous Commenters & Those Who Seek To Unmask Them

• publishing
• writing
• ellorascave

Sep 2014: Morning Has Broken, and It's a New Day

Quite the round of updates this morning. Probably because I slept so late. (Which, given my post yesterday, is a good change.)

Dear Author and the Temporary Injunction Hearing

A TRO was not granted today, but there will be another hearing on it. Jane makes the following request:

Therefore, If you are willing, I need help with the following:
Individual authors, editors, cover artists willing to testify, either in person, via telephone or in an affidavit to payments made/not made.
It would be best if you could testify in person, but a sworn written statement will be adequate.
Additionally, if you have any Screenshots of any public statements regarding Ellora’s Cave, those would be helpful too.
You can reach me at jane@dearauthor.com.

Courtney Milan on Confidentiality Clauses

Courtney Milan has a great post on confidentiality clauses here. She’s also offered to help find representation for people who wish to speak up but are afraid to because of the confidentiality clause.

But there is one thing that I know for sure–silence breeds fear. And no matter how broad the confidentiality clause is, there are some things that it can’t prevent you from saying. So if you’re an Ellora’s cave author, editor, or cover-artist, and you would speak up but you’re afraid, say that much. Go on twitter. Post it on your blog or your Facebook page. “I’m an Ellora’s Cave author, and I’m afraid to speak up.”

I want to talk about this for a minute. Fifteen years ago, I was in a pre-IPO startup with a culture of silence and fear. Two years ago, I finally wrote about it. I was only able to write about it as a fable, thirteen years after it happened. Here’s another side of the story. I am $COLLEAGUE in this telling—and I’ve never said that publicly before. The stress cost me a hospital stay with a kidney infection.
So: I get it. It’s one of the reasons I want to help provide support.
If you are willing to state that you’re an EC author afraid to speak out, and have non-EC titles to promote, I’ll add you to the Ellora’s Cave Author Exodus Support Thread.

The Flush Pile

The advice I was given by a number of senior writers back when I was learning the ropes was: money in hand is important, but reversion clauses are a critical negotiating point that may, in the long run, be even more important.
Carolyn Jewel’s post The Flush Pile – An Author’s Perspective is one of the single best posts I’ve ever seen about the business of writing from the school of hard knocks. You should read it, engrave it onto copper plates, and frame that sucker. Okay, I exaggerate. A tidge.

Do not assume a publisher has an interest in your book selling well. They should, but they don’t. Their interest is in seeing which books unexpectedly hit. That’s it. If it’s not you, you’re screwed.

Gulp. Welcome to the post-Kindle world of publishing.

Is Your Copyright Registered? Are You an RWA Member? SFWA Member?

I added three important updates to the Ellora’s Cave Author Exodus Support Thread. that you may have missed.
First, several EC authors have said their copyrights were not registered. This link allows you to check if yours was.
If you’re an RWA member or SFWA member and are having trouble with Ellora’s Cave, there are links to grievance processes. I don’t know much about RWA’s, but in the years I was a SFWA member, I know SFWA’s was pretty awesome.

For the EC Authors Who Haven’t Had Problems

There’s no universal experience with Ellora’s Cave. Some have had problems, some have not. Some have questioned their royalty accounting, and others believe it’s fine.
In short, some people have had absolutely great experiences with Ellora’s Cave, and other’s haven’t. Please don’t assume that others have the same experience you have, and be gentle with the people who can’t quite believe what’s happening because their own experience is so much more positive.
The people who could wind up being the most hurt—and not just financially—are the ones Ellora’s Cave has protected the most: their best-selling authors. They’ve had incentive to ensure that these authors have had premium experiences, possibly at the expense of those in the long tail. And with (if I counted accurately) 934 active authors, there’s quite a long tail.
It’s hard to want to ask for reversions when your experience has been strong, even if some of your titles aren’t selling well. It’s hard to want to go with another publisher for some work when you’ve had an ongoing relationship. However, this leads to having all your eggs in one basket, which can go fabulously well or fabulously poorly, depending.
So here’s what I’d suggest for authors who are in this boat—or, really, any author.

1. Build your email list. If you don’t already have one, start now.
2. Work on your marketing. If you don’t have a strategy, Tim Grahl at Out:think Group has a free 30-day course that may help you.

Best of luck to you. Really.

A Question About Discovery

IANAL and TINLA, but….
As I mentioned before, there are some suspicions of hinky royalty accounting. Others have stated their non-EC titles didn’t have the precipitous drop.
So, my question: doesn’t the nature of this lawsuit mean that Amazon can be subpoenaed for the royalties for titles?

A Pithy Thought

You can’t build trust with your entirely pseudonymous author list by outing the real name of a pseudonymous blogger.

Last, But Not Least

You probably saw the image up at the top. It’s free for you to use. There’s a smaller version just above, also free for you to use. The characters, ΕΞΟΔΟΣ, literally mean “exit” (or “going out”) in Greek. Of course, it’s also where the name of the second book of the Bible, Exodus, comes from. I admit I wasn’t thinking about the deeper historical meaning of the Israelites leaving slavery in Egypt, and I mean no disrespect in using the term. The ankh, well, that symbol’s all over Ellora’s Cave’s site.
I’ve made several products on Redbubble, and here’s the plan. Several of you may wish to speak out. Several EC authors have said that they are quite poor. Thus, for them, calling in testimony in Dear Author’s case may be prohibitively expensive for them.
I’ll make 75% of my royalty on these items (10-20%, depending on the item) available for people for whom it would be prohibitively expensive to speak out. Every month when I get my royalty statement, I’ll update how much is available below. I don’t expect it’ll be much, though, based on past experience.
Here’s a 100% detail of the background on the non-clothing items:

• ellorascave
• publishing
• romance

Sep 2014: Ellora's Cave Author Exodus Support Thread

This post is for authors, editors, and cover artists who’ve left, or who are trying to leave, Ellora’s Cave. I’ve got a section for other resources for EC authors at the end of this post. ## Authors

At least one of the following needs to be true:
1. Asked for your rights to be reverted in 2014 (or 2015) or had your rights reverted in 2014 (or 2015). Or, and I hope this isn’t true for you, your rights were reverted but EC is still selling your titles.
2. Have taken your EC titles off your website. Or, if they’re reverted, have re-published at least some of them.
3. Have spoken up since December 2012 about late royalties, missing royalties, or suspiciously declining royalties in a public post (blog, facebook, google+, whatver) or tweet.
4. Have had an EC title for which EC has sold the contract to another publisher.
5. Have publicly posted that you’re afraid to speak up. (Thanks for the idea, Courtney!)
You must also have a non-EC title to promote, since many of the readers of this thread may not wish to enrich Ellora’s Cave.
Click on author name for the author’s website.

1. Cat Grant. She’s gotten her three Ellora’s Cave titles reverted (soon to be re-published) and has more than twenty titles from other sources.
2. Kit Tunstall. “What I do know is I haven’t been paid for three out of the past nine months[…]” Later received a check, commented, “The low amount of my check is hardly indicative of the financial health of the company.” Note: she later deleted those posts, and they were not archived on archive.org.
3. Evanne Lorraine. talks about deleting the covers of her EC titles from her website:

   I loved my editor, thought their cover art was brilliant, and was very fond of the regular royalty checks.
   Yesterday I deleted those covers from my website, which makes me want to sob.
   I still adore those stories, but Ellora’s Cave isn’t paying me. I sent them formal notice requesting payment and the reversion of my rights. I received an automated response to both emails stating they’re overwhelmed with requests.

4. Avril Ashton. Spoke about royalty issues. “I’m going to say that once again Ellora’s Cave isn’t paying royalty checks. I’m going to say that once again, emails and phone calls and fucking homing pigeons are being left unanswered. Silence on all correspondence.”
5. Jan Springer. Commented on DA, “Jan, one of the EC authors not getting paid and fighting to get her rights back.”
6. Trista Ann Michaels. Spoke about royalties not arriving.:

   Another month has gone by and no check from EC. Emails and phone calls go unanswered, just like always. I have no doubt if I was to go up there in person, I would find the office doors locked.
   . . . .
   It’s a shame that we at EC have to resort to such a tactic, but I’m adding my name to the list of authors who are asking that readers not buy their EC titles. We’re not getting paid for them anyway.

7. Lex Valentine. Lex commented on Passive Voice: “I got a lovely check September 23 dated August 31 for May royalties. It was $43 and change. The only thing I found curious was how it took nearly a month for that check to get from Ohio to Southern California and that I got a check at all considering some of my EC author friends haven’t been paid.”
8. Lynne Connolly has said “I just want my rights back.”
9. India Masters, also writing as Keira Cole. She comments below, “My last check, covering royalties earned for the month of April, was $48.94 – around 1/4 of my usual earnings.”
10. Abigail Barnette/Jenny Trout. One of my favorite people, and I’m a fan of her Boss series. She says:

    I’m an Ellora’s Cave author. I only have one book there, and it has never been a bestseller, but I love it and I would be heartbroken if it were to end up as part of a bankruptcy settlement. So, I asked for a reversion of my rights last week, after a summer of rumblings from other authors who weren’t happy with their experience with the company. I myself have never had any payment issues with Ellora’s Cave, but having been in the business for almost a decade, I’ve learned that when authors are saying that they aren’t getting paid, other things aren’t getting paid, either. As Litte points out in her post, if a company goes bankrupt, authors can lose their rights permanently, so some Ellora’s Cave authors are faced with a difficult, possibly bridge-burning choice right now. I’ve never met an Ellora’s Cave staff member about whom I could say a bad word, and it pains me to cut ties with a publisher that I feel has treated me well, but in business you have to make hard decisions to protect your interests.

11. Lynne Connolly. Comments below, and has removed her EC titles from her website as well as gotten reversions on her unpublished titles.
12. Shoshanna Evers. Comments below, and has gotten several titles reverted.

    I would also like to add that everyone who works at or for EC has always been awesome to me, and Romanticon used to be my favorite convention. I’m sad this is going down the way it is.

13. Cassandra Carr. Comments below. Has gotten two shorts reverted, but still has several titles at EC.
14. Regina Cole. Has a non-EC book available for pre-order, Draw Me In.
15. Suz deMello. Commented below, asking for rights back on five titles.
16. Kate Sherwood. Tweets: “Please don’t buy my EC novella. I don’t want any profits from it to contribute to EC’s lawyers’ bills. #notchilled” She’s got other titles available.
17. Liz Crowe. Commented below, and generously offered the Stewart Realty series ebook for our readers.
18. Kelly Maher. Asked for reversion of her EC titles.
19. Lissa Matthews. Spoke up about royalty accounting and also getting a cover that wasn’t compliant with Amazon’s standards.

    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!

20. Berengaria Brown. Comments below. She’s got plenty of non-EC titles for you to read. Thanks, and welcome!
21. Delphine Dryden. Comments below. I have read and enjoyed her Cosmo/Harlequin titles, but she’s got plenty of others.
22. Leigh Ellwood. Comments below. She’s got quite a few titles out and is a very versatile writer.
23. Lolita Lopez / Roxie Rivera Wrote a heart-wrenching blog post about her EC relationship. She has plenty of titles to entice you with, especially if you like paranormal or sci-fi in your romance.
24. Nina Pierce. Comments below, and has asked for reversions on her EC titles when her sales started slipping.
25. Angelia Sparrow. Comments below. Many of her EC books reverted before the recent issues with EC.
26. Lynn Rae. Pinged me on Twitter, and has other non-EC books featured on her website.
27. Emily Ryan-Davis. Has gotten reversion on her Ellora’s Cave titles. She’s got plenty of other books for you to read!
28. Kate St. James. Has gotten reversion on her EC titles and has other titles for you to read.
29. Blair Valentine aka Bonnie Vanak. Has spoken out about EC’s slow royalty payments and asked people not to purchase her EC titles.
30. Jane Leopold Quinn. Has asked for reversion, but also has non-EC books to check out.

There is a Kindle book list of EC authors who have non-EC books for authors who’ve contributed to the Dear Author/Jane Litte Defense fund.
Additionally, A. Nonny Mouse comments below, “I’m an EC author who’s received obviously backdated checks, suspect royalty statements missing books, whose questions and concerns have gone unanswered by TPTB. I’ve removed all EC books from my website and have asked for all my rights to be returned. Obviously, they haven’t bothered to respond.”

To Participate

Please comment with, email me with or tweet me with your pen name and website (and link to the post if #3), and I’ll add it to this author list. Fan of an author not listed? Let me know!
Note: EC covered a wide variety of erotic romance tropes, and there’s no guarantee that any particular author will write something that speaks to you as a reader.

Editors

You’ve commented publicly, even if anonymously, that payments to you are currently, or have been recently, late.

1. Just sayin’ comments: “I am a former EC editor and have not been paid since the beginning of the summer.” I believe, but obviously can’t be sure, this may be the same “Just sayin’” who comments below.
2. And me commented below saying they have not been paid since early summer.
3. This makes three adds, “I’m yet another EC editor who hasn’t been paid.”
4. Me too also comments below, “I’m an unpaid editor too.”
5. Lemon Squeeze Editing is a group of laid off EC editors now offering their services as freelance editors.

Cover Artists

You’ve commented publicly, even if anonymously, that payments to you are currently, or have been recently, late.

1. Dar Albert Commented on Avril Ashton’s blog:

   They owe me for covers for two months. They worked me like a dog, took the art, and now tell me nothing. Or that they have no idea when I will be paid. I am really frustrated. Got bills, got a life, got just me, no back up, and now I have no loyalty for a company I served for six years as an artist.

   If you need covers for a book project, you can contact Dar at Wicked Smart Designs. I’m sure she’d appreciate the work.

Promotion Opportunities

1. There’s a Google Doc form for each non-EC book by an EC author for bloggers to promote. Here’s the tweet. This is a great project to help get exposure for authors. Here’s the resulting web page.
2. Felicia would like to feature EC authors on Top Off Tuesday. (I’m not affiliated with that, just passing along the info.) Covers should have a male with a top all or partly off.
3. Angela would like to feature EC authors with non-EC titles on Boosting the Signal.
4. Kastil Eavenshade tweets that her blog is open for EC authors to promote non-EC titles.
5. Agents of Romance tweeted that they would love to help EC authors promote non-EC titles.
6. Romancing Rakes wants to feature non-EC titles by EC authors for the entire month of November. Whoa.
7. ScuttlebuttReviews comments below. “We currently cannot commit to reviews, but can accept author promos, guest posts, and the like. Please note that we only accept GLBTQ books, the bulk of which are MM/Gay.”

Copyright

Several EC authors have noted that Ellora’s Cave did not register their copyrights. Victoria Strauss tweets how to check if your copyright was registered. More direct link is here.

Romance Writers of America

By the way, if you are an Ellora’s Cave author and an RWA member, you can file a complaint with RWA. #notchilled

— Courtney Milan (@courtneymilan) September 29, 2014

Here’s how you do it. (1) Here is the Industry Code of Ethics: http://t.co/d2LABorDDD There is no easy way to report… #notchilled

— Courtney Milan (@courtneymilan) September 29, 2014

…so step (2) is to e-mail the RWA president (emails here: http://t.co/D94jUfVhif) and say you’re reporting a violation. #notchilled

— Courtney Milan (@courtneymilan) September 29, 2014

Science Fiction and Fantasy Writers of America

If you’re a SFWA member and are having trouble receiving payment, or believe your royalties aren’t accurate, you may be able to use SFWA’s Grievance Committee resource. Not all EC titles fall under SFWA’s purvue, but many stories are science fiction, paranormal romance, or similar genres.

Comment Note

Note: Comments use gravatars. If you wish to comment anonymously, be careful. To the extent the law permits, I will protect anonymous commenters. Also, all comments are moderated unless there’s a previously-approved comment from you.

• ellorascave
• publishing

Sep 2014: Ellora's Cave Sues Dear Author

Tweeple! @ellorascave has sued me for libel / defamation so I need a good Ohio attorney. If you have a recommendation, let me know!

— DearAuthor (@dearauthor) September 26, 2014

Dear @ellorascave I welcome your suit and look forward to inspecting all of your books. Truth is a defense in defamation cases.

— DearAuthor (@dearauthor) September 26, 2014

The suit link here hinges on several claims Jane made about payments and economic status of the firm.
What’s of particular interest here is the statements in the lawsuit open up the Ellora’s Cave books for discovery since it does indeed revolve around whether or not authors, editors, and employees were paid properly.
I tend to think that Jane probably has her tail covered, or at least mostly so.
Popcorn, anyone?

The House in West Hollywood

I thought I’d add the small amount of fact-checking I tried to do for my own self on the West Hollywood house thing.
Here’s today’s DA tweet about it:

And here is the FB status of Jaid Black/Tina Engler announcing her move to West Hollywood @ellorascave pic.twitter.com/hc3O7bnprt

— DearAuthor (@dearauthor) September 26, 2014

So here’s what I was able to find.

1. On March 2, Jaid Black/Tina Engler announced on facebook that she was moving from Venice Beach to West Hollywood.
2. On March 3, Jaid named William Cerqueira as her real estate agent in a facebook post.
3. Cerqueira has a website, but all the sales listed on it are at least four years old. There’s also this link, which lists no sales at all. That page links to a different, dead website.
4. Cerqueira’s Yelp listing has an endorsement from Jaid B., who says she leased a home with him as her agent. (Note: I just found this today.)

So here’s the thing: Jane saying that Jaid purchased (rather than leased) a home isn’t inherently defamatory. Even if it were, it’s about Jaid’s personal life in California, which makes me wonder if it’s a valid cause of action for a state suit filed about an Ohio business in state court in Ohio against an Iowa LLC.

• publishing
• writing
• ellorascave

Sep 2014: Forget Curious, This Is Downright Bizarre

One of the things that truly fascinates me is how things fail. How businesses fail, how wars start, how bridges collapse, and how factories explode. For Ellora’s Cave, a long-established erotica and erotic romance publisher, it’s a complex tale of tax liens, slow royalties, broken promises, complete lack of communication, and the founder’s weird paranoid ramblings. Technically, EC hasn’t failed yet, but it certainly appears to be flirting with the drainpipe if not outright sucking it.
Jane at Dear Author (DA) has a great post, The Curious Case of Ellora’s Cave, that documents the tax liens, including an unpaid lien dating to July of last year.

At the same time, court records showed repeated tax violations by [EC founder Tina] Engler [aka Jaid Black] and Jasmine Jade Enterprises. Since 2009, Engler has had a tax lien filed against her by Ohio Department of Taxation in every year except 2010.

Last year’s lien is $35,853.21, and this year’s is $105,819.92. The ongoing nature of the liens and their size suggest poor cash flow.
Yet, in August 2013, the Akron Beacon Journal profiled Ellora’s Cave quoted the CEO stating EC sold $15 million per year—200,000 books.
Royalty payments have been late. Not once, not twice, but on an ongoing basis. Roslyn Holcomb speaks out. Avril Ashton and Cat Grant have asked people not to buy their Ellora’s Cave titles, hoping that will reduce their sales enough to get EC to agree to a rights reversion—as well as cut their losses on royalties due. Avril self-published her latest book instead. (Avril talks more about that choice in this post.)
Quite a few are afraid to speak out about their own troubles with EC. Kenzi comments on DA’s post:

I’ve been terrified to say anything publicly. It isn’t just dealing with the repercussions at EC; it’s also the fear that you’ll make yourself undesirable to other publishers. Who wants to be seen as a troublemaker?
Ms. Black claims on her Facebook page that this is all lies. There is no proof. I wish someone would call her out and ask which parts are a lie. When was the last time her editors and artists were paid? Is she claiming they have been? Is she saying it’s untrue that authors have been told their books will be copyedited and released without their input? Even though a lot of us have gotten those emails? Does she really want us to start posting these things publicly as proof?

Eden Connor comments about a similar experience with Silver Publishing:

Speaking out is the right thing to do. And I’ll mention here what I said to the publisher at Silver when he threatened to sue me for speaking out: Sue me. Please, please sue me. Because in order for any court to determine if slander took place, step one would be for you to turn over the books for a forensic accounting by a court-appointed auditor.
And he did not sue me, because having to open his books was the last thing he wanted.

Ellora’s Cave has also been particularly reluctant to open their books, as you’ll see later.
There’s also talk about hinky royalty accounting: (Note: this was a link, but at the request of said post’s author, I’ve removed it and the quoted content.)
EC also claims that it hasn’t talked to Amazon about a massive drop off in sales.
Summary so far:

1. Massive tax liens.
2. Downsizing.
3. Paying royalties late, and paying smaller than perceived correct royalties.
4. Claiming there’s a massive drop off in Amazon sales, but not talking to Amazon about said dropoff.
5. Three other authors say that the dropoff is not true for them with books published by other publishers (including self-published).
6. EC principals accusing people talking about late or non-payments of lying, causing others to be more afraid (or angry) about speaking out.

Hmmm.
On the surface, it appears that:

• The slump, to the extent that it’s real, is related to cover art issues and EC’s ebooks being too expensive.
• Hinky royalty accounting.
• If the money isn’t in EC’s accounts (which late royalties imply), could money have been diverted to other ventures and/or people?
• Authors have been left in the dark.

Some Thumbnail Numbers

Let’s make the following assumptions.

1. The tax lien amounts are directly related to sales.
2. The $15M number is true for 2013, correlating to the $105k Ohio tax bill.
3. Engler/Black was hit with a $29,679.52 tax bill from the City of Akron in March. The City of Akron tax rate is 2.25% on adjusted net income (cite: tax form). Ergo, the adjusted net income for 2013 was $1,319,089.78. That’s after all expenses such as royalties. (Paid royalties if it’s cash-based, accrued royalties if it’s accrual-based.)
4. If 15M/1.32M are for the same tax year, then the business has 8.8% net profit.

The obvious question: where’s the million-and-a-third bucks?
DA goes on to say:

In the meantime, Engler boasts of her Rodeo Drive shopping trips and her new property purchase in West Hollywood on her Facebook page.

I see.
Pity her real estate agent’s website is four years out of date.

EC’s Prior Lawsuit

Once upon a time, someone threatened me with a lawsuit. I didn’t have a good response handy, so I said, fliply, “Well, discovery should prove interesting.” It proved to be the exact right thing to say. Obviously, the lawsuit never happened.
In 2008, Ellora’s Cave was sued by Christine Brashear, who went on to become the founder of Samhain (a press I like very much). You can read her lawsuit against Ellora’s Cave six years ago, which sounds like some of the same ongoing issues. PDF here.
During that suit, Ellora’s Cave got quite the smackdown from the judge. Not only did they refuse production of documents, they no-showed for the final pre-trial conference:

Defendants willfully evaded the production of discovery, resulting in unnecessary delays of this case and increased legal fees. Defendants’ actions in this case have crossed the line from a zealous defense to malingering, malfeasance, sabotage and delay. […]
It is suspect that all three of them failed to appear for the final pretrial. The Court could understand if one of them had neglected to put it on their calendar or “forgot” to come. But the absence of all three, who concede to receiving notice of the hearing, is questionable. […]
Such continuous, systematic delays and flagrant disrespect for court orders resemble an unwillingness to defend and bad faith attempts to derail the case from moving to a resolution.

Brashear won on summary judgment. This is pretty damn rare in business lawsuits.
Personally, I’d never have been an author with them after that point. If they evaded discovery in a lawsuit, there’s no way I’d ever trust them to pay royalties accurately.
Meanwhile, there are two threads over on The Passive Voice: one two.
From the EC letter PV links to in the second article:

Also, please note that almost all the royalty checks have been mailed, with the exception of a handful that should be out by end of week. We are not bankrupt (rumors) and are not in any kind of shape to even file bankruptcy.

[We] are not in any kind of shape to even file bankruptcy. Wow. That’s so comforting.
Commenter Antares says:

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.

Antares later follows up with:

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. […]
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.

In this particular case, I’m not sure if discovery would prove interesting or not. I’m very curious about what happened to all that money. Disappearing gobs of money plus weird paranoia tends to scream one thing to me.
However, if you’re an EC reader, you might not want to add to the pile at present. Support your favorite authors in other ways. If you’re a writer, I’d strongly suggest not submitting to EC. If it’s too late, ask for a reversion.
If your payments are late and are significant, I strongly suggest you consider Antares’s words.

Meanwhile

Meanwhile, EC is still open to submissions, and is still holding their $325 per person annual convention in Akron, Ohio next month. Complete with Cavemen.
Edited to add: and in the extra bonus unhappiness round check out the comment from Adam (sorry, no direct link, so I’ll quote one paragraph):

Wasn’t it you who told me at Romanticon™, who cares if one of the models inappropriately touched a teenaged fan, that is what the fans are here for? Wasn’t it you bragging about how endowed some of the Cavemen were because you had personal experience? Wasn’t it you who said it didn’t matter how a book was crafted, or how many typos were in it, as long as it was nasty? As the father of teenaged daughters, this is something I am very unlikely to forget, and a life lesson I want my girls far, far away from. Were this the first such incident, it would have been perturbing. But, this was just the latest in the chain of strippers behaving inappropriately with women, sometimes for money. See Romantic Times, circa 2008 and the semi-public sex one of your Cavemen engaged in for money.

Anyone happen to have that RT issue handy?
Kit Tunstall has also asked that people not purchase her EC titles. (Note: Kit has deleted this post.) Also Evanne Lorraine.
Cat Grant reports on what the buyback offer for her three remaining titles was.

• publishing
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• ellorascave