Class Action Suit against Harlequin by its Authors Moves a Step Forward

23 October 2014

PG has just learned that the judge hearing Keiler et al v. Harlequin Enterprises Limited et al, a class-action suit brought by a group of Harlequin authors against HQ alleging a massive underpayment of royalties, has formally certified the authors as a class.

This means that the lawsuit, which was previously dismissed then reinstated in part by an appellate court, can move forward.

Here’s the order docket entry:

U.S. District Court

Southern District of New York

Notice of Electronic Filing

The following transaction was entered on 10/23/2014 at 3:00 PM EDT and filed on 10/16/2014

Case Name: Keiler et al v. Harlequin Enterprises Limited et al
Case Number: 1:12-cv-05558-WHP
Filer:
Document Number: 49

Docket Text:
STIPULATION AND ORDER REGARDING CLASS CERTIFICATION:… Pursuant to stipulation of the parties, and based on the allegations in the Fourth Claim for Relief of the First Amended Complaint filed November 5, 2012 (“Complaint”) and submitted by proposed class representatives Barbara Keiler, Mona Gay Thomas, and Linda Barrett, the Court hereby certifies the claims and issues in the Complaint for class treatment under Fed. R. Civ. P. 23, as more fully set out in this Order. When fashioning an order under Rule 23, the Court must satisfy itself that the prerequisites of Fed. R. Civ. P. 23(a) have been satisfied… Once the prerequisites of Fed. R. Civ. P. 23(a) are satisfied, a class action may only be maintained if the action falls within one of the categories enumerated within Fed. R. Civ. P. 23(b)… Accordingly, the Court makes the following findings and conclusions as stated herein. THE COURT HAVING READ AND CONSIDERED the Stipulation of the parties, and finding that the requirements of Rules 23(a) and (b) are satisfied, IT IS HEREBY ORDERED that the class is certified, defined as follows as set forth herein. IT IS FURTHER ORDERED that Barbara Keiler, Mona Gay Thomas, and Linda Barrett are designated as Representative Plaintiffs for the class; IT IS FURTHER ORDERED that DavidWolfLaw PLLC and Boni & Zack LLC are appointed Class Counsel; and IT IS FURTHER ORDERED that Class Counsel are directed to submit within thirty (30) days of the entry date of this Order, a proposed plan concerning Notice of Pendency of Class Action to be given to the members of the class. (Signed by Judge William H. Pauley, III on 10/16/2014) (ja)

 

It’s not the end of the lawsuit, but, as mentioned, this is a major step forward for the authors.

The class covers authors from the US, Canada, UK, Republic of Ireland, Australia and New Zealand who signed standard HQ publishing contracts between 1990 and 2004 that included the following language in the All Other Rights clause:

On all other rights exercised by Publisher or its Related Licensees
fif typercent (50%) ofthe Net Amount Received by Publisher for
the license or sale of said rights. The Net Amount Received for the
exercise, sale or license of said rights by Publisher from a Related
Licensee shall, in Publisher’s estimate, be equivalent to the amount
reasonably obtainable by Publisher from an Unrelated Licensee for
the license or sale of the said rights;

Which contracts also provide that New York law will apply and include no arbitration clause. The class covers those authors whose works have been published as ebooks.

The full order is set out below (click the four-arrows box in the lower left corner for a larger version):

 


HQ Order (Text)

Amazon Does Everything

23 October 2014

Nothing to do with books, but you can order Thanksgiving Dinners and Desserts from Amazon

Fan Fiction Writer Gets Six-Figure Book Deal

23 October 2014

From Rolling Stone:

British boy-band singer Harry Styles can check “inspiring a work of literature” off his bucket list: the One Directioner star has allowed a 25-year-old writer to go from fan fiction scribe to six-figure published author.

Styles stars as a barely-disguised version of himself in 25-year-old novelist Anna Todd’s debut erotic novel, After, which hit stores this week. Todd began writing the sexy fan fiction – which involves a college freshman who falls for and has kinky times with a guy named Harry Styles – on free writing site Wattpad last year. But what started as a few chapters has grown into a 2,500-page epic novel that earned the Ohio native a six-figure publishing deal from Simon and Shuster imprint Gallery Books.

. . . .

Todd decided to ignore her detractors, having quit her job with the full (albeit somewhat surprising) support of her husband in order to write a new chapter daily to keep up with her site’s demands. Her hard work has obviously paid off: Paramount Pictures acquired the stories’ screen rights

Link to the rest at Rolling Stone and thanks to Scott for the tip.

5 Biggest Mistakes When Writing Mental Illness

23 October 2014

From author, doctor and soon-to-be psychiatrist Rosie Claverton:

Madness in fiction, like most things in fiction, reflects and informs the popular view. If we write about terrifying, violent mad folk running about with machetes in our films, books and TV shows, the general public nod at how much that confirms their view of madness and cross the street when they see someone out of the ordinary. Or worse. Much worse.

At the bare minimum, we should get the facts right. Here are my Top 5 mental health myths in fiction that need to be kicked to the kerb.

1) Straitjackets and padded cells are not standard issue

Let’s start with straitjackets. We do not use straitjackets in mental health in the UK. They are cruel and dangerous. Short-term physical restraint is used during a psychiatric emergency and it is tightly-regulated, with training and a mountain of paperwork. If your character is spending time in a mental health unit, they will not see a straitjacket.

A bedroom in a modern mental health unit has more in common with a room in university halls than it does a padded cell.There are certain things which distinguish them – the furniture is usually heavy and secured to the walls or floor, and you won’t find hooks, nails, curtain rails or door handles, because we are safety conscious.

The Psychiatric Intensive Care Unit (PICU), where the most unwell people stay, has a step up in safety features – most notably, a seclusion or low stimulation room. This small room has furniture made of the soft squishy blocks you might see in a children’s play area. The walls, however, are just walls.

Padded rooms do still exist in some facilities. They are for short durations where a person is unwell and very rarely a permanent residence. If your character is spending a week in a mental health unit for depression, they are really unlikely to see one.

. . . .

4) OCD is not about being a neat freak

My husband has OCD. When I mention this to people, I sometimes get the response “your house must be so clean!” Wrong, on so many levels.

Obsessive-compulsive disorder involves intrusive, unpleasant, horrific thoughts (obsessions) and the felt-necessary rituals to attempt to undo, remove or counteract the thoughts (compulsions). Cleaning, ordering and symmetry can all be compulsions, but they are almost always related to an intrusive thought – for example, “if I don’t wipe the table seven times, my children will die from ebola”.

Not “I like a clean house because I hate clutter”. Or the recent nonsensical trend in dousing children in alcohol gel (hint: it does fuck-all – let them develop an immune system).

And sometimes OCD has absolutely nothing to do with cleaning. Sometimes it’s about checking the door is locked 99 times. Or repeatedly driving the same piece of road to make sure you didn’t hit anyone. Or repeating The Lord’s Prayer over and over again to protect your wife from being raped by a stranger.

It’s not about a bit of spit and polish.

Link to the rest at Swords and Lattes and thanks to Jayne for the tip.

Here’s a link to Rosie Claverton’s books

Well, Wilmer

23 October 2014

Well, Wilmer, I’m sorry to lose you. I couldn’t be fonder of you if you were my own son. But, well, if you lose a son, its possible to get another. There’s only one Maltese Falcon.

Dashiell Hammett

The exciting world of the TRO

23 October 2014

From author Courtney Milan:

A brief recap of where we are in the EC/DA litigation.

  1. Jane wrote a post about Ellora’s Cave and whether it continues to be a viable business.
  2. As a result of that post, Ellora’s Cave filed suit against Dear Author, alleging defamation. EC also asked for a temporary restraining order (“TRO”) against Jane. (Note that I use the words “Jane” and “Dear Author” throughout to refer to the defendants.)
  3. There was an initial, brief hearing on the TRO in state court, at which point the state court decided that evidence would need to be presented. That hearing was set for October 27th.
  4. On October 20th, Dear Author removed the case to federal court on diversity jurisdiction grounds. (Diversity jurisdiction basically means that if one party is from one state and the other party is from another state, and there’s a lot of money at stake, parties can choose to go to federal court instead of state court.)
  5. EC again refiled its motion for a TRO in federal court.
  6. The TRO hearing in federal court is set for October 29th at 1:30 PM.
  7. Last night, Marc Randazza, Jane’s lawyer, filed an opposition to the motion, alongside seven exhibits (Exhibit A, from Jane, with a correction regarding the name “Red Rose Publishing”; Exhibit B, from an editor;Exhibit C, from an author; Exhibit D, from an author; Exhibit E, from an editor; Exhibit F, from an editor; Exhibit G is a true copy of tax liens and Workers’ Comp liens against EC.)

This blog post discusses the memos in support and in opposition to the motion for a temporary restraining order.

. . . .

Here’s my take:

  • On the basis of the exhibits currently available to the court, someone has to be lying.
  • In general, I think a judge would be extremely unlikely to squelch speech at this stage when there exists evidence from multiple people stating that the blogpost is substantially truthful.
  • EC is missing proof of a vital part of their case–namely, that Jane acted with actual malice–and I don’t know how they will ever be able to prove it, but they seem to think that proving that Jane dislikes EC is proof that she acted with actual malice. No.

. . . .

I said on Twitter the other night that there’s a difference between a good lawyer and a merely competent one, and that the lawyer for Ellora’s Cave (I refer to the party and the lawyer as “EC” throughout) has all the hallmarks of being competent, while Marc Randazza is a very good one.

. . . .

This is a perfectly competent motion for a TRO. It is also an exceedingly sloppy motion for a TRO. (In fact, when I first read Randazza’s opposition, I thought there were some sloppy elements in construction—but when I went back and looked at things from start to finish, any sloppiness in his opposition is due to the fact that the underlying motion is fundamentally sloppy to begin with. Slop begets slop.)

What do I mean by sloppy? Well, if you’re going to enjoin someone from engaging in conduct, you should really be very, very specific about what it is that you want them to do. For instance, if you’re seeking a restraining order against a vindictive ex, you want that restraining order to say things like, “Don’t come within 50 feet of me,” and “stop calling me at work.” You don’t want to say, “stop being a bad person” even if you want them to stop being a bad person, because what does that even mean?

On its face, this is a motion for a “stop being a bad person” kind of restraining order.

. . . .

Part of the problem is that the attorney for EC appears to be use the word ‘publish’ in a way that does not track typical usage. The blog post in question was published. It is not currently “being published” as anyone understands that word. The act of publication is not continuous: It was published once, it does not need to be continually republished day after day in order to persist, and so if you want it taken down, you should ask for only that. If you ask for someone to not publish things in the future, you’re actually asking to track everything they might say in the future. Is this what EC really wants?

. . . .

There are other things that a good opposition to a preliminary motion will do.

  1. It will explain the law to the judge and tell him where he can verify that the lawyers are telling the truth.
  2. It will explain the facts (and in so doing, paint a vivid picture of who/what/where/when/why).
  3. It will explain how the facts apply to law, and in doing so tell a story of the litigation at present.
  4. It will immediately sum up the litigation and give the judge a working explanation for what is going on.
  5. In some cases, it will also educate opposing counsel about things they do not appear to understand.

In this instance, there’s a sixth goal. Technically a motion for a TRO is not the same thing as a trial on the merits. You could win on the merits and lose a TRO. You could lose on the merits and win a TRO. But realistically a TRO hearing is kind of a mini-merits trial in the sense that it gives the parties an idea of whether the arguments will sink or swim. If the judge agrees with Randazza and says, “I cannot see how Ellora’s Cave has a prayer of a chance of prevailing on the merits,” that sends a certain message to opposing counsel. So another goal is to win the mini-trial, because that could influence whether the opposing party decides to continue with the lawsuit or dismiss it. Just about any case with a TRO contains a little dance to this effect: “Yes, this isn’t a real trial on the merits, but we all know that this could easily decide the case. We are going to pretend it won’t because reasons, but it usually does. So.”

. . . .

Now, finally, we get to the opposition motion. This is the first chance that Randazza has to introduce the concept of Dear Author and what it means to the romance community. He does. He explains that Dear Author “has become a respected source for news and information for the romance novel community.” He immediately positions Jane as a reporter who investigates facts. He talks about the things she has accomplished in the community–as being someone who provides information to authors without a legal background, and who lets them know what will happen in scary situations, and simultaneously as someone who provides a springboard for discussion of those issues.

(I’m glad that this was included as background, because up until this point, there has been little discussion in the case itself of what the DA community is and does–and there’s no way a federal judge will understand that unless it’s explained up front. Like it or hate it, there is a DA community, and it provides a place where authors and readers can discuss the changing publishing industry and what that means at large. The remedy that EC asks for would have a huge effect on that community.)

. . . .

Randazza sums up the litigation—including showing that he’s aware that EC has a motion on its face and a shadow motion that it might be trying to make instead—with this: “Ellora’s Cave is understandably concerned about any negative view of its business, but it has no right to ask this Honorable Court to use its equitable powers to suppress the truth, to suppress fair comment, and to suppress future unknown statements. The First Amendment protects [Jane's] right to publish on matters of public concern, and her mission mandates that she share her findings with the author community. Given that her writing is a matter of public concern, about a public figure, [Jane]’s First Amendment rights are given an exalted position – one which makes sustaining a defamation claim against her in this context a virtually impossible task.”

Link to the rest at Courtney Milan

Here’s a link to Courtney Milan’s books

Courtney does an excellent job of discussing both sides of this litigation and the underlying law. PG will add that sometimes good attorneys are made to look not so good because they have problem clients.

So you have everything in the same place, PG has inserted Dear Author’s Opposition Motion and all of the Declarations below. A Declaration is a written statement summarizing what the person making the declaration would say if called to testify in court.

If you click on the box with four arrows in the lower left corner of each embedded document, it will open to a larger size.

 


Opposition Motion (Text)

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.


EC Declarations 1 (Text)

Amazon is doing the world a favor by crushing book publishers

23 October 2014

From Vox:

Here’s a little real talk about the book publishing industry — it adds almost no value, it is going to be wiped off the face of the earth soon, and writers and readers will be better off for it.

The fundamental uselessness of book publishers is why I thought it was dumb of the Department of Justice to even bother prosecuting them for their flagrantly illegal cartel behavior a couple of years back, and it’s why I’m deaf to the argument that Amazon’s ongoing efforts to crush Hachette are evidence of a public policy problem that needs remedy. Franklin Foer’s recent efforts to label Amazon a monopolist are unconvincing, and Paul Krugman’s narrower argument that they have some form of monopsony power in the book industry is equally wrongheaded.

What is indisputably true is that Amazon is on track to destroy the businesses of incumbent book publishers. But the many authors and intellectuals who’ve been convinced that their interests — or the interests of literary culture writ large — are identical with those of the publishers are simply mistaken.

. . . .

Wisdom on this subject begins with the observation that the book publishing industry is not a cuddly craft affair. It’s dominated by a Big Four of publishers, who are themselves subsidiaries of much larger conglomerates. Simon & Schuster is owned by CBS, HarperCollins is owned by NewsCorp, Penguin and RandomHouse are jointly owned by Pearson and Bertelsmann, and Hachette is part of an enormous French company called Lagadère.

These are not tiny, helpless enterprises. Were their owners interested in the future of books and publishing, they could invest the money necessary to make their own e-reading apps and e-book store and render Amazon entirely superfluous. But the managers of these conglomerates don’t really care. If they can get famous authors to lobby the government to stop Amazon from killing them for free, then they’re happy to take the free labor.

But they don’t want to invest actual money and energy in competing with Amazon, they’d rather wring whatever remaining profit there is out of book publishing and dedicate the money to dividends or other industries they’re also involved in.

. . . .

When I was a kid, my father was a novelist as were both of my grandparents. So I heard a lot of stories about how useless publishers are at marketing books. Then I got to know other people who wrote books and they had the same complaints. Then I wrote a book, and their complaints became my complaints. But it’s easy to whine that other people aren’t marketing your product effectively. It took the Amazon/Hachette dispute to conclusively prove that the whiners are correct.

After all, imagine a world in which publishers were good at marketing books. Then it would be almost trivial for Hachette to get what it wants out of Amazon. It could just not sell its books on Amazon! Unlike in the old days when it might have been inconvenient for someone who lived in a town with a Borders but no Barnes & Noble to go get a book that Borders didn’t sell, it’s trivially easy to click on some non-Amazon website to order a book. But you do need a customer who actually wants to buy the book.

. . . .

The real risk for publishers is that major authors might discover that they do have the ability to market books. When George RR Martin’s next iteration of the Game of Thrones series is released, I will buy it. If I can buy it as an Amazon Kindle book, I will buy it that way. If he decides that the only way people should be able to read the book is to get Powell’s to mail them a copy, then I will buy it that way. And I am not alone. Nor is Martin the only author with the clout to not worry about the terms of distribution.

But for a publisher to team up with a celebrity author in this way to bypass Amazon would merely reveal how easy it would be for a celebrity author to bypass the incumbent publishers. In the old days, even the most famous author would need a publishing partner to actually make the physical books. Today that’s not the case. Martin needs a software platform to sell books, but publishers don’t have one. He could easily hire one or more editors to work with him on the copy if he wants to.

Link to the rest at Vox and thanks to Morgan for the tip.

Airline Safety, New Zealand Style

23 October 2014

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Thanks to Iola for the tip.

Nice Dragons Deserve Numbers

23 October 2014

From author Rachel Aaron:

My favorite thing about the indie publishing community is its transparency. I could not have made my decision to self-publish without the sales numbers and analysis posted by the authors who came before me. As all of you who read my blog regularly know, we are big big fans of paying it forward here at Casa de Aaron/Bach, and so it was a foregone conclusion that I would do the same once my own numbers started coming in.

Below, you will find the complete sales numbers/Kindle Universe borrows for Nice Dragons Finish Last followed by a few conclusions and observations I’ve drawn from my self pub results so far. Please know that I am not doing this to brag. While I did admittedly have a fantastic, amazing, beyond my wildest expectations two months, I’m still nowhere near the top of the publishing heap for either the traditional or self-pub side of the fence.

. . . .

Make no mistake, having an established fan base was a huge help, especially at the beginning. Many of my reviews for NDFL reflect that these were readers who’d followed me over from Paradox or The Legend of Eli Monpress (to these people, I LOVE YOU ALL). But an equal number of the reviews that mentioned how the reader found my book claimed they’d never heard of me before this and only clicked because the cover/blurb/title looked interesting. And while review counting isn’t a precise measure of whether the above sales are from new fans or old, going by my royalty statements, I think it’s a pretty safe bet to say that I don’t have that many die-hard fans who run out and buy my book in the first two months. Many of these sales (and I’d wager the majority of my KU readers) seem to be new fans who found and decided to buy NDFL purely on its own merit, and (as you see from the numbers above) primarily on Amazon.

. . . .

I did practically zero promo for this book. I mean, I did the basics–tweeted the release to my followers, sent an email to my (then very tiny) mailing list, passed out a few eARCs to reviewers I’d worked with in the past–but compared to the relentless promo I did for my Orbit titles, I phoned this release in. Why? Well, frankly I was busy and I didn’t actually expect the book to start selling until there were sequels.

That’s one of the great things about self-publishing, though. There’s no release week. You don’t live or die by getting people into bookstores to buy your book during the 2-3 months it’s actually on the shelves. You have time to let a title sit and gain readership organically.

. . . .

At this point in the release, I was so caught up in writing and other work that I was barely tweeting, yet my book was doing fantastic, and I had no idea why. But I could see the stair steps already. I knew something was going on, and so I started trying to predict when the jumps would come. Sure enough, I was able to predict the jump on July 30th, not through any promo or efforts on my part, but simply by looking at the patterns that had come before. And then, just before the infamous 30 Day Cliff, the stair steps suddenly ended, and I returned to a normal, up and down sales graph.

An inexplicable climb is almost as frustrating as an inexplicable fall. If my books were doing this well, then dammit, I wanted to know why. So my programmer husband and I looked at all the data, and while we can’t presume to put forward any real answers based off such limited information, we did come up with a pretty cool theory, which is that this stair step progression pattern is actually an unwitting picture of the Amazon algorithms at work.

My book came into the Amazon system under pretty much the best possible circumstances. I was an already established author with other, proven titles for sale. I had several positive reviews, including one from a Top 1000 reviewer right off the bat (thank you, Mihir!), I was already selling thanks to the support of my fanbase, and I was competitively priced.

To an Amazon bot, all of that combined makes me look pretty good. On paper, at least, I looked like a winner, and it’s my theory that because of this, I was given extra visibility by Amazon in the form of a fixed ranking. And I don’t mean fixed as in illegally fixed, I mean they stuck my rank on me with digital glue. That’s why my rank didn’t move, because it wasn’t actually my rank. It was a bonus Amazon automatically attached to a book they predicted would do well, but that hadn’t actually been out long enough to get the also-boughts and link ups that actually drive the Amazon sales engine.

. . . .

Because a book’s Amazon rank is a very reliable way of determining how many people see said title while browsing, artificially fixing a new book’s rank within a set spread (say, between Amazon rank 1000 and 900) is a built in way to test how well a title performs against other books who’ve achieved the same rank naturally. It’s sort of like putting an untested horse in a race with a bunch of champions to see how the newcomer’s time compares to the veterans, who are already known quantities. If the new horse keeps up, you move it up to the next race and the next race until it starts to fall behind. At that point, you can make a pretty good guess as to how well that horse will run, or that book will sell.

If you artificially fix a book’s rank at 1000 with all the visibility that entails, and it manages to sell the same or better as the older books around it who’ve achieved the 1000 rank on their own, you know that title can run the race. If a book can’t gain sales commiserate with its artificial rank, then Amazon knows that particular book isn’t ready to be there and drops it back down. I’m pretty sure this is what happened to me at the end, because while I was outselling my daily rank all the way up according to the various rank/sales converters around the internet (ie, the kindle rank to sales calculator would say that a 1200 ranks gets 55-100 sales per day and I was seeing 130), I was not outselling my rank once I reached the 500s, which is when the stair step climb stopped for me. My horse, it seemed, had finally run out.

Link to the rest at Pretentious Title and thanks to Adrienne for the tip.

Here’s a link to Rachel Aaron’s books

What’s Next for Authors United?

22 October 2014

From David Gaughran:

Authors United has been spectacularly unsuccessful in its supposed mission to get Amazon and Hachette to agree a deal.

By contrast, Simon & Schuster was able to agree a deal in just three weeks – without the intervention of Douglas Preston’s group.

To be fair, Authors United has been very good at one thing: getting media attention.

Perhaps it’s time for Douglas Preston to widen the aims of the group and start campaigning on issues which actually matter.

It would be great if Authors United could get the media to focus on any of these problems. Alternatively, Authors United could continue to focus on propping up a broken system which only rewards those at the very top (like Douglas Preston, surprisingly).

1. Diversity in Publishing

Publishing is very white and very middle class. And, at the upper echelons, often very male too. One of the many knock on effects of this is that traditionally published books tend to be very white and very middle class. Publishing claims to want more diverse books from more diverse voices, but I don’t think that’s going to happen until more people from diverse backgrounds are representing authors and acquiring books.

2. One-sided Contracts

Contracts offered by publishers can contain awful clauses. Option clauses which unfairly tie authors’ hands. Reversion clauses which are meaningless in a POD/digital world where books never go out of print. And non-compete clauses which can pointlessly damage a writer’s career.

Some say that a good agent will negotiate those out. My experience of talking to fellow writers is that it’s often the case that even good agents can fail to negotiate these out because they don’t want to damage their relationship with the publisher. But, really, these clauses should form no part of any boilerplate. Agents shouldn’t have to negotiate them out because they shouldn’t be there in the first place. And the upsurge in digital-first imprints taking unagented submissions means this is a growing problem.

. . . .

6. Author Exploitation

The most unwelcome development in the last few years has been the huge increase in author exploitation. What’s particularly distasteful about this phenomenon is that the most predatory companies are not the fly-by-night operations of the past, but huge corporations exploiting writers on a massive scale. Oh and they are owned and operated by traditional publishers, happy to profit from this crap.

Penguin Random House bought Author Solutions two years ago and, instead of cleaning house, it has aggressively expanded its scammy operations. HarperCollins, Harlequin, Simon & Schuster, and Hay House are just some of the traditional publishers with exploitative vanity press operations being run on their behalf by Author Solutions. This is completely unacceptable. And instead of getting worked up about what Amazon might do in the future, I respectfully suggest that you should focus on what publishers are doing right now to authors.

Link to the rest at Let’s Get Digital and thanks to T.M. for the tip.

Here’s a link to David Gaughran’s books

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