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

November 18, 2015 by deirdre 2 Comments

Ellora's Cave Blog Post Header
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.

Filed Under: Ellora's Cave Tagged With: business-of-writing, ellora's cave, ellorascave

Ellora's Cave: We've Heard This Before

November 9, 2015 by deirdre 52 Comments

EC-author-stats.001
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.
Ellora's Cave: Jaid Black on Romance Writers
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.
EC-author-stats.001
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.

Filed Under: Ellora's Cave Tagged With: ellora's cave, ellorascave

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

October 31, 2015 by deirdre 6 Comments

pubnt avatar pumpkin
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!#notchilled

— 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!

Filed Under: Ellora's Cave Tagged With: ellora's cave, ellorascave

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

October 22, 2015 by deirdre 38 Comments

ellora's cave blog header
Today there’s big news in this year-plus long defamation case: plaintiffs Ellora’s Cave and Defendants Dear Author and Jane Litte have settled.
Ellora's Cave Case Settles
In an email to EC’s biz loop, Ellora’s Cave CEO Patty Marks said:

From: patty@ellorascave.com [ec_biz]
Date: Thu, Oct 22, 2015 at 9:50 AM
Subject: [ec_biz] Settlement with Dear Author
We are pleased to announce that we have reached a settlement with Dear Author. The terms are confidential, so we will not be discussing that. We are very happy though to now put all of our time and efforts into Ellora’s Cave, the authors and staff without further distraction.
Thank you for your patience and support.
Patty Marks

Defense’s Parting Gift to the Case

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

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

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

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

Boom.

The Identity of @pubnt

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

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

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

But in this country, we want to make sure that people have the right and ability to talk about matters of public concern, to express their opinion on them, and to speak freely without worry that their speech will be chilled. So if you inject yourself into an issue of public concern, you may be a limited purpose public figure–that is, someone for whom the standards differ.
[…]
It seems to me that the business of Ellora’s Cave–a multi-million dollar business, one where the owner has sought and obtained media attention from national news media, a business that deals with hundreds if not thousands of authors, editors, and cover artists, and who has thousands if not hundreds of thousands of readers who take an interest in it–is a matter of public concern. It seems to me that Ellora’s Cave and its owner, Jaid Black, by seeking out that media attention, by broadcasting announcements to its authors–announcements that were reprinted and referenced in publishing news ranging from Publishers Weekly to The Passive Voice–is a limited purpose public figure.
And the standard for defamation actions for limited purpose public figures is substantially different than for private citizens. The standard is that the speaker must be acting with actual malice: that is, they must know (or be reckless about knowing) that the statements they are speaking are false. What that means is that if I say something and I have a good-faith belief that what I am saying is true–even if it later turns out to be false–I am not going to be held liable for defamation.
I point this out because I am extremely, extremely pissed off about this lawsuit. I believe that this lawsuit was filed for the purpose of chilling speech–and for the purpose of chilling true speech about a matter of imminent public concern. And I think that despite the outpourings of support, it’s working. This lawsuit is about teaching authors to sit down and shut up, even if their livelihood is at stake.

Which is a pretty good statement of the unifying principles of the #notchilled regulars. Some are EC authors. Some are former EC authors. Some are readers, but not authors. Some (like Courtney and myself) are writers, but not for Ellora’s Cave.
But we weren’t posting specifically because of who the defendant was, but what the issue was.
Defense’s response in doc 74 (p. 3):

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

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

What’s Up Next?

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

@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.

Filed Under: Ellora's Cave Tagged With: ecda, ellora's cave, ellorascave

Ellora's Cave: So Who('s) Left?

October 20, 2015 by deirdre 39 Comments

ellora's cave blog header

Authors Who Reverted Between Sep 2014-Sep 2015

Based on screen scrapes taken of Ellora’s Cave author page on September 24, 2014 and September 29th, 2015. So, it’s as accurate as that data is.
Boldfaced means the author has been an author of either a NY Times or USA Today bestseller.
Note that some unknown percentage of these had titles that were below the threshold for reversion, and the remainder were likely rights that were bought back.

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

Ellora’s Cave’s Unreverted Bestselling Authors

With the notable exception of Laurann Dohner, the New York Times and USA Today bestsellers I could find from these authors were all published by other houses. Because Ellora’s Cave is a digital first publisher, the “Most Recent EC Title” column means: the most recent unreverted Ellora’s Cave ebook release date.
Also, even though an author still has titles at Ellora’s Cave doesn’t mean some of their titles haven’t reverted.

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

Update March 19, 2016: More Reversions

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

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

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

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

Author Counts Over Time

I’ve scraped the Ellora’s Cave site a few times, and have used all of archive.org’s available scrapes as well. I have a reason for posting this, but after the graph, I’ll post a timeline, then wrap it up so you can see why I think this is significant.
elloras-cave-author-counts
Here are some dates to keep in mind when looking at this chart:

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

    No, I can’t have my rights back on those two. If I don’t cooperate with the editing, Ellora’s Cave will exercise its contractual right to edit and publish the books anyway. If those books do come out, I will make a statement to say I had nothing to do with the editing and the books are released without my cooperation. After that, it’s up to the reader to decide.
    By “editing,” they mean “light editing.” The editors are not even allowed to alter spelling mistakes, because that would be changing the “author’s voice.”

  4. Cat Grant says Ellora’s Cave would allow her to buy out her contract on Sep 20, 2014.

  5. The following day, Victoria Strauss, maintainer of Preditors and Editors posted:

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

  6. Lawsuit against Dear Author and Jane Litte over the Curious post was filed September 26, 2014.

  7. The following day, Cate Cameron asks for a guide to requesting rights reversion. The day after that, I linked to one I’d found.
  8. News of the lawsuit hit Publishers Weekly on September 29th.
  9. On October 1, Victoria Strauss posted a reversion guide on Writer Beware and posted a link to that on the Absolute Write EC thread.

Ellora’s Cave’s Claims re: Reversions

From p. 18 of this EC filing:

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

So here’s the thing. The standard reversion language is given by example here on p.44, and you’ll note it takes (up to) six months for the process to complete.
In other words, if people had asked for reversions solely and only because of the Dear Author article, then those reversions would have occurred between September 14th, 2014 and March 26th, 2015.
If you look at the total number of authors EC had as of March 21st (5 days before the end of that window), they had the exact same number of authors (though not necessarily the exact same authors) as they’d had after Jane Litte’s Curious article.
In other words, the overwhelming majority of authors leaving Ellora’s Cave entirely appear to have done so so after the effects of Ellora’s Cave filing a lawsuit, not after Jane Litte’s article published by Dear Author and before the lawsuit.
Also (note that I’m talking about net additions here):

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

  • In the two months between July 28, 2014 and September 24, 2014, EC added two new authors…an average of 1 per month.

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

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

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

And Now I Quote from Patty Marks

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

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

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

Comments Welcome

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

Filed Under: Ellora's Cave Tagged With: ecda, ellora's cave, ellorascave

Laurann Dohner Announces New Self-Published Series

October 18, 2015 by deirdre 9 Comments

Laurann Dohner photo
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:
Laurann Dohner Making Leap
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).

Filed Under: Ellora's Cave, Other Writers Tagged With: ellora's cave, ellorascave, laurann dohner

Ellora's Cave: Recent New York Times Bestsellers

October 7, 2015 by deirdre 17 Comments

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

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

Note: she’s also ranked on the combined print + e-book list multiple times, but the matching print book has not been out at any time she’s made the list, so I haven’t included those numbers. With only the e-books available, the combined ranking is more of an indicator of how well print vs. e-books did that week than about Ms. Dohner’s rankings per se.
“Yeah, well? What’s your point?” I hear you say.
I’m glad you asked.
In short, looking at Ms. Dohner’s NY Times Bestseller list positions, it doesn’t appear that the Dear Author article did any damage to her ability to make the list or her position on the list.
When I thought to look this morning and see how Laurann’s newest book was doing, I’m reminded of something Tor editor Patrick Nielsen Hayden said to me at Clarion.
To paraphrase: what you see at writing conferences and workshops and science fiction conventions is only a small part of your readership, and don’t overinterpret what’s going on in the small groups because they’re rarely reflective of one’s readership as a whole.
Let’s visualize the ranking in a scatter plot, which will make my point clearer. Note that lower numbers are better.
Ellora's Cave NY Times Bestseller Rankings 2011-Oct 2015
In a nutshell, compared to the e-book market as a whole, Ms. Dohner’s e-books are not faring worse after the EC layoffs and Dear Author’s Curious article than they were before.
For the last table, I’m not a statistician. That disclosure out of the way…here’s what I know.

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

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

Ellora’s Cave’s Claims About Reversions

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

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

cough

The Bankruptcy “Scare”

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

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

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

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

Later on, antares clarifies in another comment:

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

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

The Reversions Numbers Game

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

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

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

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

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

Ellora’s Cave Should Have Chopped the Long Tail

Please Release Me
First, a sanity check on the 1250+ number: as of July 9, 2014 (just over a month before the layoffs), Ellora’s Cave had 4745 titles according to All Romance E-Books and as of today, 3694 titles according to ARe. In the meantime, Ellora’s Cave has published new books, so 1250+ seems perfectly credible to me.
I wrote this piece a year ago about reversion theory, and it included this bit:

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

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

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

We now have enough information to do this:
Screen Shot 2015-10-07 at 12.38.46 AM
The tl;dr version: It would cost an estimated $28,378 (times two for two royalty systems) in bookkeeper/data entry costs to pay royalties to Ellora’s Cave authors since January 2014 to the end of August 2015 (assuming no backlog and assuming all were actually paid).
If EC had instead cut the list early when the accounting system was going in, they would have lost an estimated $1,777 in royalties, but would have saved an estimated $2,839 (times two for two royalty systems) over that period. So, net savings of $3,901.
Like I said, chop the long tail.

While I’m at it, The Kicker

I seriously, seriously underestimated how many pieces of data Ellora’s Cave would need in order to prove substantial truth. Why?
I didn’t know about the mid-2011 contract change and how it could create accumulating debt coming into 2014.
Therefore this needs to change:

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

Let’s assume an average of 4000 books, and we’re going to have to look from mid-2011 to the end of the lawsuit. So it’s already four years and a quarter.
Let’s assume 3 stores per book.
4,000 x 3 stores x 7 pieces of data = 84,000 pieces of data per month. Times 51 months = 4.28 million pieces of data. (Why 51 months? Damages calculation assuming they’re able to prove things substantially true.)
4.28 million pieces of data x average of 6 chars / 5,200 entered/checked an hour = 4,943 hours at $13.50 is an absolute minimum of $66,731. Just for the data itself, not for the interpretation of it. Not for the double-checking against vendor (e.g., Amazon) records.
Good luck with that.

Filed Under: Ellora's Cave Tagged With: ecda, ellora's cave, ellorascave

Calling Current and Former Ellora's Cave Authors

October 4, 2015 by deirdre 3 Comments

ellora's cave blog header
Are you an Ellora’s Cave Writer who: asked for your rights back as a response to this Jaid Black post (August 12, 2014)?
For context, that would be the week before the editor (and other) layoffs, before the Curious article by Jane Litte, and before the lawsuit.
If so, Dear Author’s defense would like to hear from you. Please email me (deirdre@deirdre.net) or ping me on Twitter, Facebook, or AbsoluteWrite.
(They may still want to also hear from authors who requested reversions for reasons other than the Dear Author Curious post, too.)

Throwing a Bone to Everyone Else

Jaid Black and Richard Stansbury have a new project: Serial Killers Anonymous. It’s about a bunch of serial killers who meet in a group. You know, like twelve step. It gives a date of June, 2015.
I don’t want to say it’s been done before, but there’s an identical title and similar concept from this 2013 posting by Alexander Williams.
There is an in-development title of the same name listed on IMDB, but whether it’s about Alexander’s script or Jaid and Richard’s (or someone else’s entirely), I could not say. The production company given is Orchard Place Productions which is a Pittsburgh, PA company. Their web site does not list SKA, however.
The movie they released last month, though, featured this song from Supervoid, which is a little hard for my taste. Good though.

Filed Under: Ellora's Cave Tagged With: ecda, ellora's cave, ellorascave

Ellora's Cave: RWA Addition to Dear Author Motion

October 2, 2015 by deirdre 9 Comments

ellora's cave blog header
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:
getting-behind
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:
ec-books-on-amazon-au
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.

Filed Under: Ellora's Cave Tagged With: dear author, edca, ellora's cave, ellorascave

Ellora's Cave: An Interesting USDOT Finding

September 13, 2015 by deirdre 7 Comments

ellora's cave blog header
This was an interesting Google find that you can locate by searching on: USDOT Ellora’s Cave and clicking on the fmcsa.dot.gov link on the first page.
Screen Shot 2015-09-08 at 1.55.00 PM
Screen Shot 2015-09-08 at 1.54.48 PM
The “OOS” (Out of Service) category column has an entry which states: New Entrant Revoked – Refusal of Audit/No Contact and the “OOS Date” (Out of Service Date) is November 17, 2008.
Per the MSCIP Step Chart, which explains the various possible explanations that appear in the “OOS” category column. While there is no perfect match, this appears to most closely match the description for Step #63.
But what does it mean?
I believe it may be about the Ellora’s Cave bus.

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

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


Per the USDOT website:

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

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

Filed Under: Ellora's Cave Tagged With: ecda, ellora's cave, ellorascave

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