An Object Lesson

Yesterday, September 26, 2014,  Ellora’s Cave Publishing, Inc., filed a defamation suit against the Dear Author Media Network, LLC, owners of the Dear Author blog. Here is a link to the filing for more information: 

http://www.cpclerk.co.summit.oh.us/PublicSite/Documents/sumq8000014A4.pdf

What follows is not about this filing specifically. This post is about unintended consequences and object lessons.

In the United States of America, anyone can sue anyone for anything. Yes, you read that right. And please keep it in mind as you read on.

In the USA, one can say, write or otherwise make public anything about anyone. It’s called freedom of speech, and it is a right granted every American in the First Amendment of The United States Constitution. I can stand on any street corner and ramble on about any subject, and the GOVERNMENT cannot arrest or otherwise restrict my right to do so. If I decide to publish those ramblings, that is called freedom of the press, and is also a right guaranteed in the First Amendment. However, if I am rambling on about a specific individual or corporation/business, that individual and/or corporation/business has the right to bring suit for slander (if spoken) or libel (if written/published) in civil court. I have not committed a crime, per se, but I have, in the opinion of the injured party, impugned their reputation with my words.

Definition of libel: http://www.merriam-webster.com/dictionary/libel

It is a good idea for the purposes of this blog post, Dear Reader, to keep in mind that as a result of the rulings under Dartmouth College v Woodward and Citizens United v Federal Election Commission, the law in the US has afforded corporations the right of personhood. It’s complicated, but that is the nutshell version. It means that corporations have the same rights as living, breathing citizens of the US. And, yes, you read that right, too.

A blog is a personal website or page on the internet in which a person posts their opinions about various subjects on anything from individual people, events, companies, etc. The possible subject matter is endless.

This post today is dealing with the fact that a corporation is suing an individual for libel because of a blog post, e.g. an opinion piece posted on the Internet.

Now, if the author of a published article is spouting BS, it is pretty widely accepted that the author of untruths should be sued. If the plaintiff (individual or business that has been libeled) is successful, it teaches an object lesson to the defendant (the individual who committed libel).

But, what if the published matter is true and can be documented as such?

Doesn’t matter. If the subject of that publication feels they have been injured by the information in that published work, that person—or company— can sue the author of said published work. See paragraph 3 above.

In other words, if the author of a blog post is telling the truth about an individual or company and can document what they have written is the truth, they can still be sued. Again, you read that right.

This opens up a Pandora’s Box of issues that include but are not limited to the right of freedom of speech as guaranteed in the First Amendment of the United States Constitution to the right of personhood granted to corporations under Woodward and Citizens United, and how cases have been adjudicated under these rulings.

Think about that for a moment...

In addition to being a business owner and an editor, I’m a blogger. I have opinions. Some of those opinions are very strong and could prove controversial, and others wouldn’t mean squat to a housefly. But I have a guaranteed right to publish those opinions in whatever media I choose. And if I’m going to take a company to task for its behavior/business practices (don’t even get me started on the financial collapse of ’08), I had better be sure I have my facts straight and can document that every word I put out as fact can be documented as such, and that my opinions are clearly labeled and understood as such.

Does that protect me under the First Amendment? Yes. But that only means that the US Government can’t come after me for what I’ve said, written and/or published.

Does that protect me from facing a civil suit – even though i spoke the absolute, documented truth, and have witnesses to attest that what I have published is the truth? No. See paragraph 3 above.

Should I keep silent on any subject that might offend persons or companies? No.

Am I not afraid of being sued? No...and yes. No, because I refuse to be intimidated by anyone or anything. Yes, because lawyers are damned expensive and that is what the “offended” party is hoping will deter me. Ever gone to war with your medical insurance provider? If you have, then you know exactly what I mean.

So, as a blogger, I won’t shut up under the threat that someone or something will be offended by my opinion. When I say something is fact, I will have citations to prove the statement(s) is/are fact.

So what is the object lesson here?

If we as bloggers allow ourselves to be intimidated, and as a result, remain silent, what do you think will be the result?

I am not going to remain silent on any subject I want to write about—whether it be corporate bullying, Internet neutrality, books, same-sex marriage, dogs and cats living together, cellphones in restaurants and movie theaters, a company that did an outstanding (or lousy) job painting my house, or any other subject that tickles my fancy.

Injustice flourishes like the perennial wild weed because it is watered by the silence and indifference of people. Robert M. M. Alonto (2/26/2012, Philippine Daily News)

So, Why Can't I Share That eBook?

So, book thief, you want to share that file and you don’t care that it’s illegal? You stand behind your rationalization for breaking the law? Well, take a few minutes and read on.

Why is file sharing illegal? Because in the United States of America the Supreme Court of the United States has ruled it’s illegal, that’s why. When it comes to the law in the good old USA,  SCOTUS is the final word. Period.

The landmark case was MGM Studios v. Grokster (SCOTUS, June 27, 2005). This link is the case in a nutshell for laypersons.

http://www.casebriefs.com/blog/law/property/property-law-keyed-to-singer/intellectual-property/metro-goldwyn-mayer-studios-inc-mgm-v-grokster-ltd/

I’m not going to bore you with a lot of legal mumbo-jumbo, but I will ask this question: Do you remember when federal authorities were knocking on private citizens’ doors with search warrants, and under the authority of those warrants, removed computers, which then led to prosecutions for copyright infringement because those citizens were downloading music from file sharing sites? No? Well then, you might want to take a look at this landmark case:

http://jolt.law.harvard.edu/digest/copyright/capitol-records-v-thomas-rasset

There have been other cases adjudicated under the Grokster ruling, but I’ll give you a very short summation (if you will) of the bottom line:

It is illegal under copyright law to share (by any means), duplicate, broadcast by any media ELECTRONIC files of copyrighted material without the express permission of the author of said file or the publisher of said file. This includes but is not limited to music, movies, books, articles, software, even blog posts. Yes, I said blog posts.

There is no ambiguity in that statement, nor is there any ambiguity in the cases that have been adjudicated since Grokster.

I’ll make it even simpler for you: Do yourself a favor and read the license agreement you automatically agree to when you purchase a movie, music, ebook, software, etc.

The law does not care about what reasons you may have for sharing that efile. The author of that ebook does not care why you are sharing that file with your Aunt Minnie or your sister, or your neighbor. The publisher does not care why you are sharing that file. None of these parties care what convoluted logic you use to rationalize copying and sharing copyrighted material. The FACT is that it is illegal and you can be prosecuted.

And believe this if you don’t believe anything else: Ignorance of the law is no excuse. Let me repeat that just to be sure you got it: IGNORANCE. OF. THE. LAW. IS. NO. EXCUSE. And if you try to claim ignorance, you'll probably (justifiably) be asked what rock you've been living under for the last nine years.

I’ll tell you something else. Just like the music and movie industry, authors and publishers will band together and exercise their rights under the law. Do you really want to try and stand up to that juggernaut? Do you really want to risk becoming an example?

Do you really believe that you can get away with piracy? Do you think because you deleted the file, closed down your group of thieves, used a fake name, or otherwise tried to hide your illegal activity you won’t be caught? Seriously, did you really believe you could hide at all?

If you did, you really do have FOOL tattooed on your forehead.

Oh, well, I’m not the only one, you say. Millions of people do it every single day. Yeah, and if they walked off the edge of a cliff, would you follow them? I didn’t think so.

And then there are the owners of copyrighted material who say we shouldn’t ‘fly off the handle’ and ‘call our Facebook friends thieves’. We should ‘let them share the book’ because if a person reads the stolen file they may go and ‘buy my other books’.

If you are a pirate, you are a thief.

If you are a thief, you are NOT my friend and I'll go batshit on you all over the place. To hell with PR.

An author shouldn’t ‘fly off the handle’ when they find out their book has been stolen because efile piracy is a fact of life and nothing can be done to stop it? Well, Skippy, let me ask you this question: If I come into your house and steal your jewelry, or I steal your car, or your TV, are you going to sit back and call it a ‘fact of life’ because people steal all the time? Or are you going to get up off your naive, sanctimonious ass and call the cops? Yep, I thought so.

And here is the real kicker, folks...Authors should keep quiet about piracy because it will alienate their readers if the author becomes angry and/or confrontational.

Yeah, you read that right. Yes, I do have the screenshots of these comments because I was floored when I read them. 

Sharing your Kindle, Nook, iPod, or other electronic device on which the file was originally downloaded is fine. Sending that file by any other means for any reason is illegal. And just because you may have the author's permission, you aren't in the clear. You'll need the permission of the manufacturer of the device. Good luck with that. 

And don’t even start with the “Well then, why is it okay to lend paperback books?” argument. Yes, it’s okay until you copy that book by any means and distribute it without the author’s or publisher’s permission. Period. End of discussion. Why? Because those are the terms set down by the publisher and printed clearly on either the very first or second page of that book you purchased AND because that is the law, that’s why. Don’t like the law or think it’s unfair? Change it. Think the publisher is being unfair? Well, sit down and write the publisher and tell them so. Otherwise, would you like some cheese with that whine?

Let’s put this in terms everyone understands. See that red octagonal sign on your right that says in big, white letters STOP? See Mr./Ms. Police Officer behind you in the unmarked car as you roll past that sign without coming to a full stop? No? I’ll bet you see those red and blue lights in your rearview mirror, don’t you? And I can just hear you whining now, “But officer...” as the officer writes you a ticket. Do the smart thing and pay the fine because you don't even want to go before the judge in Traffic Court and tell your sob story. Oh, and don't run another STOP sign.

Are you getting it now? Is it becoming clear now? No? You still think it’s okay to steal that file and do what you like with it because you bought it or because your ‘friend’ gave it to you? Well, when your sorry ass is standing in a courtroom and you are sentenced to a fine of $250K for EACH offense (and you have x-number of books on your Kindle you’d just love to share, don’t you?), which means every single efile you pirated, I’ll bet you’ll ‘get it’ then, won’t you?

So, you just keep right on starting your ‘secret’ groups. Keep right on pirating those files. The folks at Grokster and Napster and BitTorrent said and did the same things.

You keep right on doing what you’re doing, you douchecanoe. And while you’re at it, say a prayer that authors don’t get together and decide to make YOU an example.

I can state with 100 percent certainty you’ll ‘get it’ then.

Book Pirates - You Stole More Than Just An Electronic File

I was watching the piracy groups being exposed on Facebook this past week, but I was working on a killer deadline and didn’t have any time to do any housecleaning. I promised myself I would undertake that task this weekend.

Then I got a look at the list of authors who were victims of the thieves and some of the books that had been pirated.

Let me back up a little here and tell you some of the backstory.

The first time I edited a fiction book, sure enough, I heard later that it had been put up on a pirate site. I reported it to the author, and she filed all of the proper paperwork to have it taken down. Sure, that didn’t stop other thieves, and pirating clusters continue to grow like the virulent, fulminating cancer they are.

I remember the feeling of finding that first book on a pirate site – the anger, a sense of betrayal of my friend who was then and is still a client. I edited that book; there was a piece of me in that story. Sure, it wasn’t a big piece, but some of the words in that book were suggested by me and later used by the author. Seeing them in electronic media and knowing for the first time that an author trusted my judgment enough to use words I’d suggested or rework a scene based on my advice? I’m telling you – it’s a high like no other. Why? Because authors are my rock stars, movie stars, heroes and heroines, the top of the heap, kings and queens of the mountain. And let’s not forget the stories they tell. Those stories have gotten me through some pretty dark times in my life, taken my mind out of the horror of some issues I’ve faced in my life and transported me to worlds where I could be, do, and say anything.

To be mentioned in the Acknowledgments, thanked specifically for the work that I did on that story? To have an author include me in a Dedication?

I can’t begin to find the words to describe how these things feel. Oh yeah, I get paid for doing the job, but truthfully, no career I have ever had compares to working with my friends who just happen to be authors.

What’s this got to do with piracy?

I watch, advise, act as a consultant, provide a shoulder, encourage, push, stalk (on request), cheer, find needles in haystacks, plead, cajole and even give the occasional NCIS headsmack while the story is being written. When the story lands on my desk for edits, I reassure, soothe, reassure again (no, the story does NOT suck – it’s pretty damn good), while I pull the story apart and look at it down to the last punctuation mark and word, then put it back together again - please gods, goddesses, book fairies and other writer patron saints and spirits -  better than it was when I first picked it up.

And through it all, I am awed by the author’s creativity in being able to make the characters live in my mind and the worlds they inhabit as real as the one outside my office door.

To be a part of that process is amazing, astounding, humbling, beautiful – a lifelong dream come true.

To see that stolen is heartbreaking. To find out  the thieves are people I know or have interacted with on one level or another is devastating, and the feeling of betrayal is crushing.

I saw the lists, and there were books the Red Quill team and I worked on. It was like being kicked in the gut – on behalf of the authors who are also my friends, on behalf of my team whose hard work went into those stories, and yes, for myself. I felt like we had been robbed.

Knowing how I felt – and I had only been the editor or headed the editing team – I could only imagine how the authors felt.

The author is the mother of that book baby. The editors, cover artists, and formatters are like a child’s teachers and caregivers. All of us, under the mother’s umbrella, have had a hand in getting that baby out into the world. Once out in the world, the street teams and fans carry that baby on its journey. And we all do it for the love of the written word and to take a reader’s mind to a different time and place with people the reader can only dream about.

Pirates – let’s call them what they really are – thieves steal that from all of us. But how is that possible, you ask?

It’s possible because it steals the author’s hard work and the hard work of all those who had a hand in bringing that story to the world. It steals the author’s motivation to continue to write those stories we enjoy. After all, if the bills can’t get paid, families can't be fed, and the author cannot provide a roof over their heads, why do it? Why watch thousands of copies illegally distributed whose royalties could have kept the writer writing basically disappear into thin air?

When all is said and done and the author hangs up their pen, computer, typewriter – whatever media they use to bring a story from their imagination to reality, we all lose.

The thief thinks, “It’s only one copy. What’s one copy?” Yeah, one copy for that thief and the hundreds, thousands, tens of thousands of other thieves who are thinking the same thing take away from the author and that author’s support staff who helped to put that book into the hands of those thieving, lowlife, waste-of-air, douchebags.

So, here’s a message to those who think “sharing” books is okay. The next time you work your ass off on something you are intensely proud of, I fervently hope that someone comes along and literally and figuratively stomps the result of your efforts to smithereens while you stand and watch. I fervently hope that you come home one day and find everything you treasured stolen or destroyed.

In the meantime, be careful who you invite into your “sharing groups” because we are out there and we know how to use sock accounts and other little tricks to out your sorry asses. And we will out you, shame you, and generally make your lives hell.

Why?

Because Karma is a bitch of the First Order and she’s is kicking ass and taking your names.

Next up: The difference between legal sharing and piracy.

Impending Publisher Bankruptcy? Protecting Your Copyright Before It's Too Late

DISCLAIMER: Under no circumstances should the information contained in this blog post be considered legal advice or instruction. While Red Quill Editing, LLC, holds the copyright on this blog post, should you wish to print this out and take it to your attorney, please feel free to do so. In fact, it is hoped that you will do exactly that and that the information in this post will help you formulate questions to address with your legal advisor.

By now, most of us in the literary industry are aware on some level of the fact that small publishers have been going under right and left, and several others are on or may very well be close to the brink of going under. Some or all of the authors contracted to these houses are not being paid the royalties they are due. Some of the editors contracted to these houses have not been paid for the work they’ve done. Some authors are having trouble regaining the rights to their books when a publisher goes out of business, or worse, files for bankruptcy.

I’ve been self-employed for over 25 years. As such, I have a more than passing familiarity with contracts and contract law. Even though I’m happy to review publishing contracts and offer personal opinions, and even advice based on personal and professional experience, I am not a lawyer. I never played one on TV, and I didn’t stay at a Holiday Inn Express last night or any time in recent memory. That said, I have clients, friends and colleagues in the literary industry, and we have ranted, discussed, and otherwise dissected some of the issues that will be addressed below.

What follows was written by an attorney friend who specializes in contract law, in particular, as it pertains to government contracts, some of which involve multiple jurisdictions. He has asked to remain anonymous (it’s an ethics thing akin to doctors not giving medical advice anywhere but in their offices or in the hospital setting), but he very graciously wrote the article that follows. It is included here verbatim with his permission. He also reviewed and approved this post in its entirety prior to publication. There will also be links at the end of this blog post to help you with more information.

As creative types, we want people to like us. And we want people to like our creative products, whether it’s red hot romance fiction, the Mona Lisa, or a macaroni sculpture. But when it all comes down to it, what we really want is a check. And ideally, a check that clears the bank.

Sometimes, businesses get on shaky ground when it comes down to paying the bills. As an author, you have to take steps to protect your rights. Allow me to give some general principles of law that should serve as a guide for beginning to protect, and possibly assert, your rights.

First things first. READ THE CONTRACT. What does it say? Things to immediately look for include payment terms (what/when/how much will you get paid) and intellectual property rights (copyright — who owns your work). Lawyers will also look for choice of law and venue provisions. Choice of law means what state/country’s law will govern enforcement of the contract. Venue means which court(s) will hear claims. In theory, the two may not be the same, and they may not even reflect the locations of either party. But understand that, in most cases, you’ll be held to these provisions. In other words, if the publisher is in California and you’re in Arkansas, but the contract says that venue is in the district courts of Lubbock County, Texas, and that New York law applies — well, you’ll be flying to Lubbock to file suit (or retaining an attorney in Lubbock to file on your behalf), and the judge will be applying New York law. Another thing to worry about is the contract being so one-sided that it’s obviously written only to benefit one party. Courts call these contracts of adhesion and the Court is sometimes willing to set these contracts aside. It’s going to require going to court. And that means hiring a lawyer.

Now, what happens when/if you see the writing on the wall and it looks like the party you’ve contracted with is “going under.” What happens and what do you need to do?

First things first. You need to get your money — or as much of it as you can. When the contract says you’re supposed to be paid, you should be paid. And if you’re not, the other party may be in breach. The remedy for breach is simple — file a lawsuit. Where? Now you see why you need to look at the venue clause in the contract. If there is no venue specified, you may be able to file a suit either in your location or the other party’s location. These are things you’ll want to discuss with...you guessed it...an attorney.

Okay, you’ve filed successfully, won in court and have your judgment. Now what? You’ve got to collect on that judgment. Again, a matter for you and your attorney. And yes, sometimes it’s going to cost money to collect.

Having said all of this, why do you want a judgment? And isn’t there an old saying about a judgment being worth the paper it’s printed on? Yes, very true.

But…

When a business faces insolvency, they may file for protection under the Federal bankruptcy laws. Think of bankruptcy as being like an organized winding up or reorganization of the business. Almost like an estate sale conducted by the court—actually the bankruptcy trustee acting under the court’s direction.  Remember the scene in Mel Brooks’ History of the World: Part I when he says, “It’s good to be the king?”  That’s not a far cry from what a bankruptcy judge’s powers are.  In short, the judge and the bankruptcy trustee exist to pool the assets together to maximize the payments to the creditors.  Assets include almost everything the debtor owns, including intellectual property (such as copyrights) and contracts.  (Remember why I warned you to read the contract?)  BUT if you have a judgment, you’re more likely to be considered a creditor than an asset.  And in a bankruptcy, that’s a—relatively—better place to be.  Also, another thing to note is that a bankruptcy case freezes all lawsuits pending against the debtor.  That’s called the automatic stay. 

So, what are the takeaway points from all of this?  

First, read the contract. 

Second, if the other party has breached the contract, talk to a lawyer and consider filing suit. 

Third, definitely look at the second piece of advice before the other party files bankruptcy. 

Finally, there is zero shame in speaking with or hiring a lawyer.  No one else but you, and ideally your lawyer, is going to look out for your interests.

Saya here: It is extremely unfortunate, but threats and attempts at intimidation have been used against those who are willing to speak out about what has happened and is happening. Don’t give any weight to threats or attempts at intimidation. You have rights, and once you have engaged an attorney, your rights will be protected. Remember, too, that you are not alone. There are others in the same situation. Communicate with each other. In this age of social media, you can find others in your same situation. When you do find those others, consider getting together and hiring an attorney to represent you as a group. (Shared expenses are easier on everyone's bank account.)

In the event you are able to get your rights back, there really are outstanding small press houses out there. Don't hesitate to ask around. Editors, put the word out that you are available for freelance work. There is always work out there for good editors.

A piece of advice based on personal experience: You might be able to file your suit in small claims court in the specified venue in your contract if the money you are owed is less than a certain amount. It never hurts to look into this option. Some small claims courts do not require lawyers for filings. You can find information online for the small claims court in the venue specified in your contract.

Bottom line here: You put your blood, sweat and tears into that book you wrote and you deserve to be paid as promised. If the publisher you contracted with cannot or will not pay you, you deserve to get your copyright(s) back.

Here are some links for more information. Some of these will contain links to help you with even more information.

A compilation of some excellent articles on recent issues within the industry with excellent advice:

http://accrispin.blogspot.com/2014/09/alert-trouble-at-elloras-cave.html

What happens when a publisher files bankruptcy:

http://dearauthor.com/features/letters-of-opinion/authors-rights-when-a-publisher-files-bankruptcy/

Some insight on what the bankrupt (or potentially bankrupt) publisher may be thinking about with regard to your judgment:

http://bankruptcy-law.freeadvice.com/bankruptcy-law/consumer_bankruptcy/how-judgment-liens-affect-bankruptcy.htm

Can you collect on your judgment?

http://thelawdictionary.org/article/can-you-collect-a-judgment-after-the-company-files-for-bankruptcy/

http://litigation.findlaw.com/filing-a-lawsuit/after-a-judgment-collecting-money.html

More information on creditor rights in bankruptcy:

http://www.bklaw.com/creditor-information/