Another One Bites the Dust

Last week, Samhain Publishing announced it will be closing at the end of February.

The Digital Reader and several other outlets announced the news with suggestions that customers download and back up their libraries since they had time, unlike the three-day warning/debacle of All Romance eBooks back in December.

Wait! Haven't we heard this one about Samhain before ?

Yeah, we have. A year ago in fact. Publishers Weekly, along with several other media outlets, announced Samhain's closing from a letter sent to the publisher's authors. However, some time later, principle Christine Brashear wrote another e-mail to the authors to "clarify" the situations. It was only a "misunderstanding" and Samhain was "downsizing", not "closing."

Um, okay?

Several Samhain writers were marketing their releases well into July of 2016, many stating all's right with the world. Others said they had their contracts terminated.

Is this a better fuster cluck than EC or ARe? If writers get their rights back without Samhain having to file for bankruptcy, then I'd say yes. But that's just me.

On the other hand, anyone who didn't get paid will probably never see a dime of that money. It's long since been spent on overhead, contrary to what the conspiracy theorists believe.

Later on Friday, a couple of Alter Ego's Facebook friends/readers lamented the end of so many publishers. Unfortunately, they blame Amazon. The real problem is that any business is cyclical. A good business person knows you have to put some money aside for the slow time. Since e-books were so new, many publishers and writers thought the gravy train would last forever.

Hell, I'm impressed it lasted for nearly ten years before the first downturn. And I'm sorry, but this downturn was inevitable.

I hate seeing any publisher go under (well, almost any), but we writers have a lot more options that we did when I started this bizarre journey nearly twenty years ago. Don't fret just yet. Take a good, hard look at your business plan and make whatever adjustments you need to make to survive.

Good luck!

Ellora's Cave Redux: When Publishers Don't Learn Their Lessons

The folks at Ellora's Cave are at it again. This time, their attorney sent a letter to Romance Writers of America, threatening to file a libel suit. Nate Hoffelder at The Digital Reader has a nice run down of the latest situation. And the comments at TDR fill in more information. You can read the full text of RWA's notice here.

Basically, it's the same ole-same ole. Actually, it's even older than the recent lawsuit against romance blogger Dear Author.

Issues between RWA and EC have been going on for nearly ten years. The first problems occurred back in 2007 when RWA changed its approved publisher rules in order to block any writer who has an e-book only release. (The president at the time was notoriously dismissive of e-books and writers who signed e-book contracts.) The issue at the time was not specifically about EC, but ANY e-book publisher. I attended the RWA National Conference that year, and sat through the annual board meeting. A lot of members were angry because EC had approved status for several years before this bullsh** happened.

The behavior of certain board members and general members wasn't pretty.

There was another major upheaval between 2011 and 2012 within RWA, again over the subject of e-books. Indie writers weren't considered to be actively seeking publication. Around this time, RWA changed the term from "approved publisher" to "qualifying markets", and EC was eliminated from the list. Also, during this period was when I first heard rumors of problems at EC, but most of the romance community was focused on the collapse of Dorchester.

So RWA has been warning its membership away from EC for some time. The only thing that's changed? RWA, acting on behalf of members who previously published with EC, is demanding payment of overdue royalties.

EC has been denying the allegations of non-payment for some time. But the funny thing is that every time EC goes to court, the case gets settled right around the time opposing counsel demands proof of payment.

The difference between suing DA and RWA? DA is a romance book review blog essentially headed up by one person. RWA represents over TEN THOUSAND romance writers.

While I quit RWA in 2012 because I didn't agree with their e-book and indie publishing policies (according to several friends, thing's have recently changed), I don't agree with trying to silence critics. If EC really wanted to settle things once and for all, prove that all writers, editors and artists have been paid in full.

It's that simple.

Finding Your Path As a Writer

When does an indie writer ignore people who are telling her what to write?

Short answer:

When she's making money anyway.


Long Answer:

What I'm talking about here is subject matter, not grammar and spelling.

(Seriously, you should always fix grammar and spelling, assuming the critic is correct that something is wrong. Guess what? Sometimes, the critics don't know as much grammar, spelling or factual research as they think they do either.)

Many of the so-called experts, and that includes folks from both the trad and indie published spheres, have no freaking clue of what they're talking about. So how do you know when they're right and when they are wrong?

You don't. Sometimes their criticism has nothing to do with you or your story, and everything to do with the critics own hang-ups. So, here's some things to think about to keep you on your path, not someone else's:

1) Write what you like to read

This is not the same thing as writing what you know. A lot of people write to market, i.e. if sparkly vampires or stalkers are hot, that's what they write. These are the same people who deride you for not following that trend. But once the market's saturated with crappy knock-offs, the readers stop buying those books, and everyone loses.

If there's a genre you love, and you can't find enough material that can keep you satisfied, then write a story in that genre. Just because it's not the hot thing at the moment doesn't mean it won't sell. There's lots of readers bemoaning the loss of sweet romances, westerns, and gothics right now. If you're one of them, why aren't you writing one?

For example, I like BDSM stories with romance, which is a subgenre of erotic romance. There wasn't a whole lot when the big publishers tried to ride the erotica wave launched by Ellora's Cave in 2000. So I wrote a couple and published them under a pseudonym. They sold, and they continue to sell steadily.


2) Study the market

Sounds contradictory to No. 1, doesn't it? But I'm not saying write to the market. What I mean is there are times when you can anticipate trends in the genres you love.

I adore fantasy and paranormal. In 2004 when I got serious about having a writing career, vampire romances were peaking and werewolf romances were on the rise. So I considered what would be the next big thing, i.e. which monster would take center stage.

The year before, an odd little duck of a comic book called The Walking Dead had been released. George Romero was still writing his zombie movies, and they were as popular as ever. However, Zombie Love was too off-the-wall for trad publishing by the time it was finished in 2005. In some ways, it still is. But I indie published it anyway, and it sold.

Does anticipation of a market trend always work? No. I couldn't have predicted BDSM romance taking off like it did. Which leads to...


3) Accept that you may love and write in a niche, and it's not a bad thing

Contemporary romance may be the most popular and best-selling genre on the face of the planet right now, but if you absolutely despise it, don't write it. Seriously. It's a good way to burn out your brain. And if you did a half-assed job because you hate the genre, your book won't be differentiated from the thousands that are out there. Furthermore, just because romance readers are voracious doesn't mean they are idiots. They'll one-star your book in a heartbeat if they think you don't respect them or their favorite genre.

The great thing about indie publishing today is that freaky subgenres that can't sell enough to sustain a multi-national publishing conglomerate CAN sell well enough to support the dozen or so writers that adore that particular freaky subgenre.

For example, M/M romance, lactation erotica, and serial killers as heroes are niche markets. Indie writers in these markets are doing very well because they enjoy the subject matter and they respect the readers of that subject matter. Very rarely would a trad publisher touch these topics, if it all, whether because of their own squick factor or the relatively tiny sales. However, those relatively tiny sales can still pay your mortgage if you write about it.


Finally, to paraphrase Internet Rule 35--if no book on a new subgenre is found at the moment, one will be written. Be the one to write that book!

The End of the Elloras Cave Versus Dear Author Saga

I waited a while before I wrote this post to collect my thoughts. My initial opinion is What A Gigantic Waste of Time!

That's the former lawyer in me raising her bleary head. Between a little litigation experience and clerking for a county judge, I figured the suit would end on October 22nd after perusing the latest documentation of the case. That was the date scheduled for the Defendant's Motion for Summary Judgment Hearing. I hate it that I was right. Except instead of a judgment, the parties settled prior to the scheduled hearing.

Here's my previous thoughts on why EC's lawsuit wasn't a good idea and how the whole fiasco damaged the principals' reputations.

Of course, the settlement has a non-disclosure agreement so neither party can talk about the actually terms. There's quite a few people upset over the settlement, thinking DA has paid off EC.

I really doubt that's the situation Based on my experience (which like this case, I can't talk specifics because of NDAs) and after wading through the pleadings and exhibits, my GUESS is the parties agreed to walk away and pay their own attorneys' fees.

Again, that's my GUESS. The only people who know for sure are Jennifer Garrish-Lampe, Tina Engler and their attorneys.

The important thing is that real discussions of events and companies within the publishing industry was not chilled. Silencing people helps no one in the fucking business. That fear of being blackballed is why so many publishers' contracts contain so many terms detrimental to writers.

I really can't add anything that other blogs haven't already covered, and covered much more extensively and eloquently. If you're curious, check out the following:

The Passive Voice
Deidre Saoirse Moen
Courtney Milan

All I can say is thank Goddess it's over, and I hope the other EC authors wanting their rights back get them. Unfortunately, I doubt if the authors, editors and artists will ever see another penny of what they are owed.

The Latest Drama with Ellora's Cave

Things were quiet over the summer as each party in the Ellora's Cave v. Dear Author case worked its way through discovery. On Tuesday, September 1, both parties filed their motions for summary judgment. Deidre Saoirse Moen has continued to update the case's timeline, along with links to pertinent documents regarding the case.

I haven't had the chance to go through the motions and exhibits because of work and family obligations last week. My personal opinions from back in March on the case can be read here. Any additional thoughts or changes of opinion will be the subject of a separate post at a later date once I have a chance to read the documents. And there are a lot!

Two days after the motions for summary judgment were filed, RWA allegedly sent out a notice to all chapters concerning EC's violation of RWA's Code of Ethics for Industry Professionals. Supposedly, CEO Patty Marks admitted EC was not up-to-date on royalty payments. I am no longer a member of RWA, so I can't confirm this information through RWA's website. However, assuming it's true, it's nice to see one of the writers' orgs standing up to a publisher without wishy-washy language.

Ellora's Cave v. Dear Author: How Two Smart, Talented Women Managed to Ruin Their Images

I thought long and hard before I even started writing this blog post. I've been talking about the EC v. DA lawsuit here because it fascinates me from a legal standpoint. Frankly, I almost didn't write this because I know the trolls are out in force. In fact, anonymous trolls tried to turn TPV into a bloodbath last week. So, this is one of those rare instances where I am closing comments.

FULL DISCLOSURE: Since lack of disclosure is what got the subjects of this post into trouble, here's mine.

I submitted a story to EC when they were filling their Tarot Card theme line. My story was rejected. I only had contact with editor Brianna St. James. I'd normally give exact dates but I cleaned out all submission e-mails and responses dated prior to 2010 when I transferred my files from my beloved former laptop Isabella to my new computer at Thanksgiving. I also have two friends who wrote for EC and were instrumental in jumpstarting Alter Ego's career, Tea Trelawny and Lyla Sinclair. Yes, they are pseudonyms. No, I'm not going to betray their trust and tell anyone their real names. Neither of them has said anything to me regarding EC paying or not paying their royalties. In fact, the last time I had contact with either of them was in May and December, 2013, respectively, i.e. long before the current brouhaha started.

As far as DA goes, none of my books, under either of the names I use to publish, have been reviewed by a DA reviewer. I personally know a handful of romance writers who were reviewed by DA. The reviews ran the gamut of A to D+. One personal friend was denigrated by Jane Litte for having the audacity to use her agent to help her indie pub her books. These books were previously trad published, but my friend got the rights back before her publisher went under.

I do write erotica. I do not write New Adult. Whether or not that makes me a competitor is left up to you, the reader of this post, to decide.

Yes, I do review books here on this blog or Bloodlines, on Amazon, and on Goodreads (though not so much there anymore). When I do, it's under one of my author names. I don't review under a separate name. I don't review books for a third party such as a publisher or a review site. I sure as hell don't review books for money. And I definitely don't review my own books. Any books I have reviewed, I either bought or were free as part of a general promotion to the public through BookBub or Ebooksoda. I do review books in the genres I write.

If I can't give a book a 3-star rating or higher (or it's equivalent), I do not post a review anywhere. The reason I don't? If it's that disappointing to me, then I don't finish it. I believe it's unfair to write a review for a book I didn't finish reading. And life's too fucking short to waste time reading a book I don't like, much less writing the review for it.

The only review I've written that other folks might question is the one I wrote for my now-writing partner, Laura Kirwan. So here's the timeline:

8/1/14 - Laura e-mailed me privately about a comment I left on TPV. We struck up a conversation about publishing and law because we have similar backgrounds.
9/16/14 - I bought Laura's book, Impervious.
10/2/14 - I left a review of Laura's book on Amazon.
On or about 10/30/14 - A series of comment threads on TPV, joking about me being a lawyer for zombie rights, turns into a serious private conversation between Laura and me about writing a joint series. (Sorry, I'm fuzzy about the exact date, but I had a bad cold and was stuck in a hotel room while waiting for my car to be repaired.)
1/5/15 - After a ton of brainstorming and a hair of negotiation, Laura and I sign a contract to write the 888-555-HERO series.

Oh, and I'm currently reading Laura's second novel Crushed, I'm loving it, and I'll probably leave a review for it because I wouldn't go into business with someone who writes crap.

And last, but not least, I used to be an attorney. Key words there being "used to be." At one point, I was licensed in Texas, Ohio, and the Federal District Court - Southern District of Texas. My license in Texas is currently suspended (which I did deliberately by not paying the State Bar fee for inactive attorneys because I don't see the point of paying good money for not doing something), and my license in Ohio is currently inactive. My Federal license is partially based on my Texas license so I figure I'm suspended there as well. (I was pretty damn sick in 2007 when all of this went down, and I didn't care enough to call the Federal court to find out for sure.)

So that last paragraph means I'm not an attorney, I do not and cannot represent any of the parties mentioned below, and nothing I'm about to say can be construed as legal advice.

Okay, now that all the bullshit is out of the way.

* * *

On Tuesday, March 24, Jennifer Garrish-Lampe, who owns and operates Dear Author and blogs there as Jane Litte, revealed that she is also YA author Jen Frederick. The disclosure initiated a firestorm on the interwebs. Other publishing bloggers attempted to discuss the legal, business and review ramifications of the revelation often have had the comment section hijacked by supporters of both Dear Author and Ellora's Cave. Ellora's Cave sued Dear Author for defamation back in September. Dear Author countersued. The case is currently ongoing in Federal Court in Ohio.

While almost any court filing is viewable by the public in person since it's a matter of public record, you have to pay for online access through PACER. Deirdre Saoirse Moen has put together a timeline for the litigation using Courtney Milan's thread system.

THE LEGAL STUFF I FIND INTERESTING
As I said in a previous post, the truth is the ultimate defense in a defamation suit. EC is going to have to prove that any FACTS that DA presented in its original blog post that's at the heart of the lawsuit are a lie. It's up to the judge and/or jury to decide who's telling the truth about the facts, not me, not John Doe on the streets, not anyone else.

Normally after a lawsuit has been filed, the first thing ANY lawyer tells their client is don't talk about ongoing litigation to anyone. Why? Because a client may accidentally reveal something that may damage their case, or worse, their reputation.

People believe that the more they talk, the more they present their side of the story, then the more other people will believe them. And a lot of times, it's just the opposite.

Some civilians think the 5th Amendment, and therefore a Miranda warning, applies to all court cases. It doesn't; just criminal cases. The EC v. DA case is a civil case. The 5th Amendment right to not incriminate yourself does not apply. No official at the court is required to tell you to keep your mouth shut. Therefore, it's up to each side's attorney to remind them to be quiet about particulars of the case.

There are times when either the attorney or the client at his attorney's instruction may reveal certain information. And usually, the lawyer is smart enough, and calculating enough to reveal tidbits as part of their strategic maneuvers.

For the record, I'm not talking about refusing to comply with legitimate discovery requests. Discovery is when each side requests information from the opposing side before trial. Opposing counsel will try to make a request as broad as possible while your attorney will try to keep it as narrow as possible.

But back to talking about the case outside of court, sometimes even the attorneys majorly screw up about fighting the wrong fight.

For example, the humongous mistake Apple's attorneys made was trying to win their conspiracy case in the court of public opinion when their case was before a federal judge. What's doubly sad was this was the ATTORNEYS, not the Apple execs or employees, being stupid. Most federal judges don't put up with those shenanigans. I know. I have a second asshole from a butt chewing I received from a Federal judge for a relatively minor infraction in my first year of practicing law.

In EC's case, I'd bet good money that EC's lawyers told the corporation's principals to keep quiet, but the owner Tina Engler will not or cannot shut up. She keeps issuing tweets and commenting on blogs about the current EC lawsuit against DA. She's making the same mistake Apple's attorneys did. It doesn't matter what total strangers think concerning her finances, or who's lying or whatever else she may bring up in social media. She has to convince the judge that EC paid the company's bills and royalties and DA is lying about EC not paying the company's bills and royalties. That's an issue of fact that the judge decides.

Doing crap like this doesn't help your reputation. In fact, Tina's probably doing more damage to herself and her company than Jennifer's post could have possibly done, regardless if Jennifer told the truth or not. If I were Tina's attorney, I'd be pulling out my hair. Or filing a Motion to Withdraw. (Fancy way where the attorney says "I quit" in ongoing litigation. Sometimes the judge will let you quit. Sometimes she won't.) Sometimes, the very best thing you can do in your case is remain silent and let the attorneys handle it.

As far as Jennifer's revelation goes, the information that she is a publisher and writer like Tina could potentially influence the case, especially if EC proves they did pay bills and royalties. Then there's a question of malicious intent by Jennifer in writing a derogatory post about another writer/publisher.

(Before anyone gets their panties in a wad, "malice" has a special meaning in legal proceedings that differs from every day use.)

Regardless, Jennifer's attorney probably recommended that she reveal her author alter ego as a way of spin control since they've probably just started discovery. I'm sure he's very aware that you always want to be the one to control the release of your own information, especially potentially damaging information. While there will be fallout from the revelation, it usually isn't as bad if it comes from your side rather than your opponents.

I suspect the knowledge of Jennifer's pseudonym was about to be revealed through discovery or Tina's attorney found out through another method. There's also the factor that the LLC business filing of Jennifer and her husband's publishing company, the same company that originally published many of Jen Frederick's books, is a matter of public record.

Once the discovery process is over (And that's assuming it ever is. Engler is probably notorious in Summit County for her antics and failure to comply with discovery requests after the dressing down a Summit County judge gave her. Believe me, judges talk.), and if Jennifer's attorney can, he will probably file a Motion for Summary Judgment. Such a motion says the law is clear and there are no issues of fact for the judge to decide.

If the judge believes there is a fact in question, or EC's attorney successfully argues there's a legal question to be decided, then the case moves to the next step, which is mediation and/or trial.


PERSONAL OPINION
Once upon a time, I admired both Tina and Jennifer as smart, successful women. Tina started her own publishing company after constant rejections from established publishing houses, proved there was a market for erotica, and turned Jasmine-Jade Enterprises, Inc., into a multi-million dollar company. Jennifer created a highly successful book review blog that allowed readers to freely express themselves, questioned publishers' abusive treatment of writers, and stood up for reviewers' First Amendment rights.

Now?

Now, I see two women take their personal strengths and turn them into major weaknesses.

Tina has a gung-ho, in-your-face, take-no-prisoners attitude that worked well in jump-starting a one-person operation into a multi-million dollar empire. But in the process, she also became a typical CEO, where she depended on employees because one person simply cannot do such a job alone. That in itself is not a bad thing.

What I believe went wrong with the company was not having the right people with the needed skillsets in the right positions for the rapid growth of the corporation. From my reading of the court documents from former partner Christine Brashear's lawsuit against the corporation, Tina and the other officers of Jasmine-Jade Enterprises willfully disregarded their duties as officers of a corporation.

And as I've seen too many times before, when things are good in a company, everyone's happy. When the money dries up, things get ugly in a hurry. In the case of Ellora's Cave, they're facing the same problem as the big boys in New York, the influx of indie work competing in the field. Like many decent-sized companies, they were slow to adapt to the new competition. And then came the double whammy of the drop in income and the Kernel Pornocalypse, which damaged EVERYONE in erotica publishing, big and small. Most of us have adapted and are regaining sales. Ellora's Cave did not.

When writers started questioning the drop in income, I think Tina took it personally and started looking for a scapegoat. I truly believe that Tina thinks she is protecting hers and her company's reputation when she lashes out on social media. So now her take-no-prisoners attitude has circled around to where according to her own court pleadings, the following allegedly occurred:

- Some editors and cover artists are allegedly not getting paid.
- Some writers are allegedly not receiving royalties.
- Some editors, artists and writers are allegedly receiving payments on post dated checks that are months late.

Therefore, it's making people question Tina's integrity, and she probably feels she has to fight back.

Going on social media and harassing people isn't going to make Ellora's Cave's problems go away. It's not going to stop the evidence from being presented in court. And rather than own up and fix the problems, Tina's take-no-prisoners attitude will sink all of her business ventures. To me, this is the worst thing about sudden success. Frankly, I want to weep at the self-inflicted damage I'm seeing.

If anyone thinks this means I'm giving Tina a free pass, hell, no. It kills me that a talented writer has become as greedy and rights-grasping as the other publishers we indies are fleeing from. I want to see her grab the reins, get whatever debts or royalties owed paid up to date, and get Ellora's Cave back on track instead of wasting her time posting pictures of herself flipping off people on Facebook. However, I highly doubt that will happen.

Then there's Jennifer...

My real problem here is Jennifer's an attorney. We didn't attend the same law school. I wasn't licensed in any of the same jurisdictions as Jennifer, nor she mine. I can't vouch for what ethics requirements she might have had in law school or as continuing legal education (CLE). However, I can talk about the requirement I had.

The first rule is basically "Don't do something you know damn well is improper." The second rule was "Don't do anything that gives the APPEARANCE of impropriety." As an attorney, you're an officer of the court, you're an integral part of our judicial system, so don't FUCKING make the rest of us look bad!

What this comes down to is that I think Jennifer should know better.

On Dear Author, Jennifer has taken many writers to task for doing the exact same things she did, such as not being transparent about her pseudonym and for indie publishing. She set herself up, beginning with the advent of her Jane Litte persona, to be the police for the publishing community. It's not that her actions were wrong, but her stance on the matter as DA's Jane Litte was hypocritical, and therefore gave the APPEARANCE of impropriety.

The fact that she also got herself invited onto closed loops or friend-requested other writers on Facebook as Jen Frederick when she knew Jane Litte had been or would be denied access also leads to the APPEARANCE of impropriety.

The third problem is the Dear Author website is owned by Jennifer's company, Dear Author Media Network, LLC, and it reviews a lot of books.

For the background info, the FTC changed its regs a few years so that blogs that review products are required to state their financial interest in the products they review. For example, when I got free movie tickets from Studio Movie Grill to see Rush and I reviewed that movie on Wild, Wicked & Wacky, then I'm supposed to tell you I got the movie tickets for free. I didn't. Probably because I got so excited about Chris Hemsworth's gratuitous butt shots. But if any of you reported me to the FTC for non-disclosure, I'd probably get an e-mail from them just saying fix your disclosure because my only financial interest was the $8.00 ticket and I doubt if more than one or two of you went to see Rush based on my recommendation. (P.S. I did add the disclosure.)

Jennifer's situation is a little different. She allowed books that she wrote as Jen Frederick be reviewed and promoted on Dear Author without disclosing her financial interest in those books. Those bestselling books. Granted those books were reviewed by another reviewer than Jennifer, but it begs the question of whether the reviewer gave the books a glowing review because she knew it was Jennifer. Probably more than one or two readers bought Jennifer's books based on the DA review.

Again, I doubt the FTC would care beyond sending an e-mail to Jennifer saying fix your disclosure. But it doesn't mean a few readers wouldn't feel betrayed (and from some of the blogs, more than one or two readers are feeling that way), so we're right back to the APPEARANCE of impropriety

On the positive side, Jennifer, as Jane Litte, has stood up for the writer community numerous times, which to me, is a great and wonderful thing. In fact, a lot of people donated to her legal defense fund in the EC lawsuit. Heck, I even promoted it on this blog.

But now, some of the people who donated feel betrayed, not only for Jennifer's actions I've already mentioned, but also because Sarah Wendell organized the GoFundMe campaign to help DA with legal expenses in the EC case, and she knew that Jennifer Garrish-Lampe and Jen Frederick were the same person. Sarah is also one of the proprietresses of the romance book review blog Smart Bitches, Trashy Books. And Sarah and Jennifer Garrish-Lampe weren't transparent about their business relationship. As a result, the GoFundMe campaign now is tainted with (say it with me, folks) the APPEARANCE of impropriety.

For the record, I don't regret promoting the DA legal fund. I think fighting the EC lawsuit is necessary to prevent the chilling of any discussion regarding the publishing industry and books on the internet.

At this point, it no longer matters that what Jennifer did was almost perfectly legal. There's a big question concerning her ethical compass thanks to that appearance of impropriety.

Which is a damn shame.

As I've said before on this blog, I don't agree with a lot of what Jennifer says on her blog, but I'd defend her right to say it. But now it appears, what she said wasn't what she believed. She performed the same acts that she castigated many others for. So I'll question everything she says thanks to that damn appearance of impropriety. And others are now judging her the same way she judged them

Which is even more of a damn fucking shame because there were a lot of things she did well.

What I hope Jennifer does is make a REAL apology (because let's face it, if another writer had made the lame half-apology she did last Tuesday, Jennifer as Jane Litte would have roasted him alive), work on making Dear Author more transparent, and add disclaimers whenever her work is mentioned on the DA. All I'm asking of Jennifer is to live what she preaches.

* * *

After reading through what I've written, I now have to wonder what strength of mine will be my downfall. I'm under no illusions that I'm perfect. But looking at the history of two women I once admired, it scares the hell out of me.

When Writers Pick on Bloggers

What the hell is wrong with writers lately? First, Tina Engler, aka Jaid Black, sues the romance blog Dear Author for libel via Tina's company Ellora's Cave. Then author Kathleen Hale dove into creepy stalker territory because a book blogger gave her a one-star on Goodreads.

For the record, I've gotten a few one-stars. I have commented on a blogger (who I intentionally did not name) here at WWW, but only because she continued to read the Bloodlines series after not liking Blood Magick. My point-of-view was that I wouldn't continue reading someone's work if I didn't particularly like the first book.

But that's me trying to manage my time. I didn't track the blogger down and harass her (and "her" is meant in the generic) for disliking the book. I sure as hell didn't show up on this blogger's doorstep, a la Kathleen Hale. In fact, it's Blogger's opinion, and she has every right to write whatever kind of review she wants about my books or anyone else's.

Just like I have the right to write whatever the hell in my novels and short stories.

But the backlash from the book bloggers has landed.

First is the #notchilled hashtag flying thick and fast on Twitter. Let's face facts. The Ellora's Cave lawsuit is all about getting bloggers to shut up about the company's problems. The harder you try to shut up the public, the more the public talks about you. It's called the Streisand Effect for that very reason. A certain diva with the first name of Barbra tried to squelch coastline photos that included her mansion. No one would have paid any attention to the picture if she hadn't pitched a temper tantrum. So, instead of silencing her critics, Tina's made sure that nearly everyone in the country is talking about her, and not in a positive way.

The latest event starts today--The Blogger Blackout, aka #bloggerblackout on Twitter. Reviewer Tez Miller gives a succinct account of why book bloggers are participating.

You know what? I totally agree with Tez. No blogger should have to worry about lawsuits or their personal safety just for discussing online what they like or don't like about books they read. Or they didn't finish. Or anything else they damn well please.

Here's where advice from the late Jay Lake comes into play. When a writer publishes a book, it's no longer the writer's story. It's the public's. And each member of the public brings her own baggage and peccadillos to the party. It's neither right or wrong. It simply is.

If you're a writer, remember Jay's wise words. Readers have every right to dislike your book and talk about it as they do to like your book and talk about it.

A Not-So-Funny Saturday

I know I normally post something funny on Saturday nights, but this issue was too important to wait until Monday.

Ellora's Cave models and authors, Axl Goode and Taylor Cole, were on their way home from EC's Romanticon a couple of weeks ago. They also happened to be on the same flight as Amber Vinson, the nurse from Dallas who was diagnosed with ebola shortly after her trip to Akron to visit her family. Both men are now under a mandatory 21-day quarantine because they were sitting within three feet of Ms. Vinson. Since they cannot work their days jobs during this period, they have a fundraiser on GoFundMe to cover their living expenses.

Assuming Axl's account is accurate, his conversations with both the Dallas County Health Department and the Center for Disease Control are disturbing at the least. They're dealing with a virulent, highly contagious and deadly disease. Yet, the delays in responding to the men show what could be construed as a lack or knowledge and/or concern.

This scares me because it shows the same disregard for public safety by government and medical personnel that was shown during the AIDS epidemic in the '80's. Lack of accurate information in how the disease is transmitted and how to prevent transmission was disseminated to the public. Why? Because it was considered a gay disease and who cared about gays. No compassion. No common sense.

That attitude made me sick then, and it still does now. I wanted to believe Thomas Duncan's care, or lack thereof, was born of ignorance, but I have to wonder. If he'd been white and American, instead of a foreign-born black, would he have received an appropriate diagnosis the first time he went to Texas Presbyterian's ER?

Because, yes, Mr. Duncan was sent home by the staff while he was in the early throes of an ebola infection. He could have contaminated a large number of people, not just two of his nurses after he was re-admitted. And right now, there's no answers of how the nurses became infected. Spokesmen for Texas Presbyterian swear up-and-down the ladies followed infectious care protocols. But this is the same hospital that's looking at huge liability for the original ER screw-up.

So there's a lot of rumors and misinformation running around. In fact, as I paid our bill at one of the local Bob Evans' restaurants in Ohio, the cashier noted that I use a Texas debit card, and asked me if I was in the medical profession.

Really? Has it come to where anyone from the Texas medical community is a suspected carrier? Then I reminded myself just why I left rural Ohio twenty-five years ago.

All I can say it's the combination of arrogance and ignorance that will be our downfall despite the common sense displayed by men like Axl and Taylor.

Legal Shake-ups in the Publishing Biz

We're still in the middle of moving into the new place. The new mattress DH and I ordered won't be delivered until next week, so we're still crashing at the in-laws.

Which means I'm finally getting caught up on industry news. Two major events happened on the legal side of the publishing industry.

The first is the lawsuit by Ellora's Cave against blogger Dear Jane was removed to federal court. Both The Passive Guy and romance author/attorney Courtney Milan have more intelligent commentary than I can provide.

I will say that I've been on the receiving end of of a relatively mild rebuke by a federal judge. It was not pleasant. If Tina Engler thinks she'll get away with the antics she's pulled in Summit County, she's sadly mistaken.

The other big news is the resurrected case against Harlequin for its slight of hand with author royalties was certified as a class action suit by the trial judge. By no means does this indicate the screwed-over writers will win their case. But the judge's cert along with Torstar's quick divestiture of Harlequin to HarperCollins doesn't indicate good things ahead for the publisher. Once again, The Passive Guy has posted the legal paperwork for those who enjoy reading court documents.

Catch y'all on the other side of the weekend!

The Dear Author/Jane Litte Defense Fund

If you're a regular reader of my blog or involved in the erotica community, you should know by now that Tina Engler, in her capacity as the primary owner of Ellora's Cave, Inc., has sued Jennifer Gerrish-Lampe, aka Jane Litte,of the popular blog Dear Author for defamation.

In my opinion, Jennifer didn't say anything that many other bloggers weren't already talking about--the death spiral of EC and its causes. For a company in the perfect position to take advantage of the e-book explosion, EC has failed to capitalize on the market changes. Personally, I think that Engler's desperate to shut up her critics, but going after an attorney wasn't the brightest move. Speaking from experience, if an attorney is sued or threatened with a lawsuit, we have a tendency to laugh and pull out the guns.

However, a lawsuit is still fucking expensive because no attorney in her right mind will represent herself in a case, and she definitely has to pay the other attorney. One nice thing is we generally know who the best in the business is. The second nice thing is the attorney we hire may cut us a deal on her rates. But the costs still mount up, and Jennifer's already put aside $20,000 of her own money to fight this case.

Sad to say, she's going to need a lot more to fight this. Sarah Wendell of the blog, Smart Bitches, Trashy Books has started a GoFundMe campaign for donations to help with the battle.

I'm going to make a statement that I hope my regular readers and new visitors understand:

I'm all for good snark, and I personally think both Jennifer and Sarah cross from snarkiness to downright meanness too much on their respective turfs, but I will defend to death their right to say whatever opinions they want on their own GODDAMN BLOGS!

Which means I'll be donating to the defense fund after I (hopefully) close on our house this week.

Bloggers, writers and readers shouldn't fear a lawsuit for criticizing publishers in public.

Angry Sheep, signing off

Why I'm Glad I'm Not Practicing Law Anymore

Was it only last Friday that Ellora's Cave filed suit against Dear Author? *shakes head* This mess makes me singularly glad that I no longer practice law.

On Monday, I posted links to the pertinent sites involved along with other bloggers commenting about the situation. As I said before, I would have handled the pleadings differently than the EC attorney. It's not in the plaintiff's best interest to put a copy of the alleged libelous statements directly into a pleading, especially since:

(1) It's been mentioned in other avenues and outlets that the plaintiff corporation is having financial difficulties. Whether the difficulties are factual or not, such information in the public record can lead to new or additional financial damage to the corporation.

(2) The screen shot of the corporate principle flipping off her critics on Facebook doesn't shine a particularly gracious light on the principle or the corporation. When you request a jury trial, you know your opponent will try to enter that screenshot into evidence, and she'll succeed because you opened the door. Ohio is a rather conservative state, and you're taking an awful chance that screenshot won't backfire.

Yesterday morning, both sides presented a Joint Motion for Continuance of Temporary Restraining Order. What does this mean?

Both sides agreed that their best interests are served by taking more time to collect and present evidence on EC's request for an injunction. They named as October 27, 2014. What's most interesting to me is Section 3 of the Joint Motion:

3.   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. 

So what does Tina Engler, the principle of EC, do? She commented over at The Passive Voice.

What exactly was the point of the gag request if you negate it almost entirely in the last sentence of the section? This is not helping your client. You can't stop third parties from discussing the case. By filing it, it's matter of public knowledge, therefore it's hard to stop public discourse on the matter. But by not keeping your client silent, and I'm referring to both sides of this case here, you're potentially giving your opponent ammunition to shoot your case with on the 27th.

In fact, I commented of TPV that I was glad I wasn't Tina's attorney. Occasionally, an attorney will get a client who literally can't keep their mouth shut. I had my fair share when I still practiced law. As I told more than one client, sometimes all I can do is keep the damage to the client to a minimum. That didn't stop some clients from making their problems worse despite my instructions not to talk about their case.

On the other hand, either Jane Litte, the proprietress of Dear Author, understands her silence is necessary as an attorney herself, or she's listening to her counsel. Either way, Jane's been quiet on the matter since she requested witnesses on her blog on September 30th. Such a request is allowed under Section 4 of the Joint Motion.

In conclusion, attorneys CANNOT save you from your own bad decisions. If you've spent a ton of money to hire an attorney, listen to her. If you really, truly believe an attorney is giving you poor advice, you have every right to fire her and hire someone else. But don't blame your attorney when you do something against her advice that hurts you.

Bankruptcy and Publishing

With all the talk of small publishers, and possibly a few bigger publishers, filing for bankruptcy, I see a lot of misinformation traveling around the writer blogosphere. If your publisher has filed for bankruptcy, or is facing the possibility of filing, this is a time when a writer really, truly needs expert help in the form of a bankruptcy attorney.

Many contracts with American publishers have a clause in them, saying that in the event that the publisher files for, or is forced into, bankruptcy, all rights revert back to the writer. For all intents and purposes, this clause IS ABSOLUTELY MEANINGLESS!

Why? In the American legal system, contracts are governed by state law. In fact, there's usually another clause in the contract specifying which state's law is the deciding factor. (And it's almost always the publishers' home state.) Bankruptcy law is federal law. And the American system, federal law almost always trumps state law.

What does this mean? It means if your publisher files for bankruptcy, the rights he bought from you become part of the bankruptcy estate and can be sold to satisfy the publisher's debts. Not only that, but if your publisher owes you royalties, those royalties are an unsecured debt which put you the writer near the bottom of the list of people to get paid by the bankruptcy trustee. This isn't anything personal on the part of the trustee. The law ranks creditors in a certain order.

If you think your publisher is in trouble (such as the poor folks who sold rights to Ellora's Cave), you need to talk to an attorney who specializes in bankruptcy NOW. If you wait, you may never see your precious books again.

How Ellora's Cave May Have Just Committed Suicide

In case you actually had a life over the weekend and missed the blow-up, Ellora's Cave Publishing, Inc. and Jasmine-Jade Enterprises, LLC filed a civil suit Friday morning against Dear Author Media Network, LLC, and Jennifer Gerrish-Lampe for defamation. Ellora's Cave was a ground-breaking e-book erotica publisher. Jennifer is better known as Jane Litte, the proprietress of Dear Author, an incredibly popular romance blog and review website.

The subject of Ellora's Cave (aka EC) has been a major topic on the internet for the past few months. Jennifer wrote a piece that was, in my opinion, fair and factual in regards to their business problems. I linked to it when I compared EC's current behavior to the events leading to Dorchester's demise. Everything Jennifer mentioned is a matter of public record. She laid out the facts, and she gave an opinion about what may be going on behind the scenes and what the end result may be. Her post went live fifteen days ago on September 14th.

Three days ago on September 26th, EC filed suit against Jennifer in Akron, specifically the Summit County Court of Common Pleas, Civil Division. You can read the actual court documents here at the Summit County Clerk of Courts. I first heard about the lawsuit in an article on The Digital Reader. The Passive Voice has posted the actual filing, which is now a matter of public record, along with his own legal commentary. Inexplicably, EC's attorney attached a copy of Jennifer's blog post to the pleading.

*facepalm*

I know it's been a while since I've practiced law (and nothing I'm about to say constitutes legal advice or legal representation of anyone WHATSOEVER), but what the fuck was that attorney thinking? The apparent objective of the lawsuit was to suppress Jennifer's analysis of EC and chill any further discussion of EC 's business practices. Yet, he just made sure everyone in the world can read it. As Nate Hoffelder at The Digital Reader said, the Streisand Effect will ensure everyone on the planet knows about the Dear Author blog post and shine a very bright light on EC's behavior.

In a case like this, the burden of proof is on the plaintiff, i.e. EC, to show that Jennifer deliberately lied to damage their business. Which means their going to have to open their financials to the court to prove one of the main allegations, that EC did in fact pay ALL their writers, editors and cover artists. Again, any evidence entered into the case will become a matter of public record. Considering how many EC authors are openly complaining about the lack of payment, these folks will be very interested in seeing the financial records of the company.

By Saturday afternoon, the Streisand Effect was in full force as bloggers spread the word about Dear Author getting sued. Outraged readers picked up the thread. Even Publishers Weekly broadcasted it through their Twitter account.

By filing this lawsuit, EC may have just hastened its ultimate fate. The company may not even survive long enough for this case to go to trial.

The Death Spiral of Another Publisher

In 2000, Tina Engler started a little publishing company. Her sexy contemporary stories were constantly rejected by bigger publishers as too risque. The publishers claimed there was no market for contemporary, fantasy or sci-fi erotic romance. Tina proved them wrong when she launched Ellora's Cave.

Not only did Tina prove there was a market for those sub-genres, but she did something unique. She launched new stories as e-books first. If they proved popular enough, a paper version of the book was published. Remember, this was over ten years ago. Very few e-readers were on the market at the time, the most prominent manufacturer of which was Sony.

EC was the first erotica publisher to gain mainstream prominence. Their books were shelved in Borders and Barnes & Noble. They were getting noticed by financiers and mainstream press. EC was featured in Forbes. They were raking in the dough.

So why haven't EC editors and writers been paid for several months now?

That's the question on everyone's mind. Jane Litte at Dear Author provides a breakdown of the sequence of events. She believes incompetence and/or fraud is responsible for the tailspin EC finds itself in.  On top of salaries and royalties, state taxes haven't been paid. Writers are asking their fans NOT to buy their EC titles. Requests for reversions of rights go unanswered.

Unfortunately, the real life drama at EC sounds just like the sequence of events at other publishers and a certain retailer by the name of Borders Group, Inc., before they crashed.

First came the complaints from the occasional writer, who was subsequently labelled a troublemaker. Then came the late payments. Just a computer glitch; nothing to worry about. Layoffs of publisher staff, or reorganization as they called it. Royalty statements didn't match sales figures from Amazon or Barnes & Noble. The payments stopped being late and didn't come at all. The smart writers got their lawyers involved in a desperate attempt to get their rights back. Some writers succeeded; other couldn't get their calls, letter or e-mails returned. Finally, the company collapsed and writers found their rights sold to another publisher.

Think I'm talking about EC? Nope, this was the exact sequence of events at Dorchester a few years ago.

We're seeing the same pattern over and over again in the current disruption of the publishing industry. EC is simply the latest.

And I fear Barnes & Noble may be next.

The Eye of the Storm?

Last week, one of Kris Rusch's reasons for cutting back on her business blogging was that the publishing business had entered a period of stabilization. But with the Gulf hurricane season officially starting a month from Thursday and preparation ads starting to spring up, I wondered:  Are things really stabilizing or are we in the eye of the storm?

1) Writers

The trickle of writers who had contracts for novel length works leaving publishing companies has turned into a steady stream. Many new writers are refusing to even consider  working with a major publishing house. We haven't gotten to the point where that steady stream turns into a gush, or where a MAJOR name like King, Roberts or Grisham walks away from their publisher.

2) Publishers Houses

Sure, you've got guys like Joe Konrath predicting the big publishers will collapse, but the bigger publishing houses made record-breaking profiits in 2013. There's also a lot of issues not being said.

Both Disney and Warner Brothers streamlined their print book operations so that they are focusing on materials and IP properties they fully control, e.g. Star Wars and Superman among others. Supposedly, Disney is keeping the contract Lucasfilm had with Random House to produce Star Wars novels, but I question how long that arrangement might last.

After news got out that Harlequin used contractually sleight-of-hand to rip-off writers, pitch slots to their editors were empty at the 2013 Romance Writers of America Conference. Other small publishers, such as Kensington and Ellora's Cave, are seeing a drop in submissions, and the submissions coming in are dropping in quality.

Overall, the publishing houses are reducing advances, reducing print runs, and issuing draconian contract terms to keep the writers they already have tied to them. They are also tying up reversion rights even though they seem to have no interest in reissuing the older books.

The question is at what point will the majority of writer grow tired of these shennanigans and walk way from the publishers, or writing, altogether.

3) Brick and Mortar Stores

It's been a little over two years since Borders collapsed here in the U.S. Barnes & Noble is scrambling to stay alive by cutting down on books and selling trinkets and toys. Book-a-Million and Half-Price Books only sell a fraction of what the ailing B&N sells. Walmart, Target and Costco will only sell  book on the top twenty of the New York Times bestseller list. Groceries stores and pharmacies are whacking their mass market paperback displays in a quarter of what they used to carry, assuming they are still carrying books at all.

On the plus side, many independent bookstores have arisen from the ashes of the Borders collapse and the closing of several B&N's. They've learned their lessons that they can't compete on price alone and are focusing on service and the customer experience.

Can the bigger stores afford to carry books? And if not, at what point do they quit?

4) Devices

This is where I think the most pundits are short-sighted. I've read article after article about slow down in sales of dedicated e-readers. Barnes & Noble is floundering. Sony gave up on devices totally, then sold its e-book division to Kobo. Kobo turned around and laid off 63 people last week. Yet, I still see publishing CEOs claim the slow down in dedicated device sales means adaption to e-books is also slowing.

This is where I *facepalm*.

First of all, if e-book adaption is slowing, why are the same companies claiming record profits? Sales of paper books are down or steady according to the folks who keep track of such things like Bowker.

Second of all, consumers are buying more and more tablets and smartphones. These multi-purpose devices are driving technology sales right now. In fact, tablets sales are seriously impacting Dell's laptop business. Executives don't seem to understand that you can READ on these multi-purpose devices.

Do you want a prime example? Two weeks ago, an older woman and I were sanding in line at the post office to mail Easter packages to family. I was reading on my iPhone 4. She had a HC. She didn't understand how I could read on such a small screen. I showed how I could adjust the font on the Kindle app, which led to an explanation of how apps work on a phone.

And why am I reading so much on my iPhone? Because the toggle switch on my Kindle 2 broke. While I like reading on e-ink since I spend twice as much business time on my computer than I ever did when I was a programmer or systems engineer, I question why should I spend the extra money. If my eyes need a break, I have 1300+ paper books I can read.

Even Genius Kid, who just got a Galaxy S4, doesn't think he needs another device, even though he's been asking for a Kindle for the last year.

When are execs going to understand that the loss of dedicated devices doesn't mean the loss of e-books?

* * *

With all these issues still outstanding (and I'm sure there's more I missed), I can't see any supposed stability lasting for long. The real question to me is--are we on the clean side of the hurricane or the dirty side when the storm roars past us?