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Guinness World Record, and I Helped

great-namaste

Remember in June when I participated in The Great Namaste? An attempt to break the Guinness World Record for the number of people simultaneously doing yoga.

We Did It!

I got this funny email from organizer Tyler Tervooren:

Well, for those last four months, the record was only technically broken. We’ve been waiting… and waiting… and waiting for them to give us the official nod. Kind of like when you’re really excited to get someone’s phone number, but you can’t get a hold of them so you leave a message saying, “Uh, it was really nice to meet you and I think you’re super cool so, um… call me back?” And then you sit and wonder if you had bad breath or crazy eyes or something as each week passes and they don’t call.

And that’s how it felt with Guinness. UNTIL TODAY!

official-certificate

The only thing that’s missing at this point is they haven’t updated the listing on the website yet, which is kind of like when you start dating someone new and realize they still talk to their ex on Facebook. We’re trying not to be jealous, though. We’re certain it will be updated soon.

And Here I Am

In the detail of the above photo….

namaste-detail

Originally published at deirdre.net. You can comment here or there.

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Upcoming Travel, Hotel Envy Edition

Ladera Resort

So, remember last month when I said I was at 97 countries after an ill-advised tromping through the Vatican museums?

We’re heading to the Caribbean on Friday, and I’ll cross the 100-country mark.

A few years ago, I listed nine hotels from my “hotel envy” list. I used to work in the luxury hotel industry, so I’ve seen and heard about a ton of beautiful hotels, but these were particular standouts for me.

This will be my third visit from that list of nine. (One, Kona Village, has since closed for good. Palazzo Sasso is now called Palazzo Avino.)

Conrad Maldives

I was extremely lucky to be able to book a three-night stay on Hilton points before the devaluation. There’s no question that this is the nicest place I’ve ever stayed.

The Maldives consist of many thousands of coral atolls in the Indian Ocean. Because of that, and the fragility of the atoll reefs, much of the inter-country travel is via seaplane.

IMG_6356
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Originally published at deirdre.net. You can comment here or there.

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My Twitter Halloween Outfit

Seasonal and timely. As usual, my holiday profile name is Dire Red Omen.

Update: I calmed this down because it was driving me crazy.

halloween-avatar-ankh-4

And the older versions….
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Originally published at deirdre.net. You can comment here or there.


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Unpublishing from iBooks

There’s been an assertion that this is a difficult thing to do.

Not so much.

With iBooks, You Publish Via an App

I use iTunesProducer to package and upload my book and make it available for sale. It makes a manifest file around the EPUB that includes product and sales information, then saves it in your iTunes Playlists. (Yet another WTF? from Apple, albeit a minor one.)

However, so far as I can tell, you can’t remove it from sale that way.

There’s a reason for this, I suspect. Since someone who’s purchased the book has the right to redownload their purchases, that means that Apple’s system still need to keep that record of you having published it even if you are no longer the publisher of record for new sales.

Use iTunesConnect to Stop Selling

Here’s the https link.

Log in, and you’ll see this home screen. If you haven’t logged in in a while, it has changed.

iTunesConnectHome

Click on My Books. A publisher with a lot of books will need to use the search page. I, uh, don’t.

itunes-book-list

Click on the relevant book and you’ll get the book page.

book-page

Click on the Rights and Pricing and you’ll get the sales territory management page.

Click the Select All button above the pricing matrix.

Select No next to Cleared for Sale on the top form.

select-no-under-cleared

Scroll to the bottom of the page and click Continue.

continue-after-changing-sales-info

There’s probably another step or two, but I don’t happen to want to take my own books off sale for this experiment.

Still, it’s just not that difficult.

Originally published at deirdre.net. You can comment here or there.


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Proving Substantial Truth

broken-ankh

Substantial truth can be tricksy. Here’s a DMLP post with a few examples.

Two of those examples where the statements were ruled substantially true:

A statement that a boxer tested positive for cocaine, when actually he had tested positive for marijuana. See Cobb v. Time Inc. 24 Media L. Rep. 585 (M.D. Tenn 1995).

A statement that a man was charged with sexual assault, when actually he had only been arrested but not arraigned. See Rouch v. Enquirer & News of Battle Creek, 440 Mich. 238 (1992).

Look, I haven’t read up on the case law, but the above two examples should demonstrate that “substantial truth” isn’t cut and dried.

Hypothetically Speaking

Let’s say the claim in question is about “a set of authors” and whether or not they’ve been paid in a timely manner. Let’s say there are more than 500 authors, each of which has one or more books.

Now, the person believing they’ve all been paid may in fact only have been double-checking the highest earners.

However, let’s say the claims are true for three authors:

a = {Fred, George, Mark}

That still means one needs to sift through an unknown large portion of the data set before one determines that it’s true for “a set” of them.

And Now an Intermission

I’m done with the above hypothetical.

I have no personal information about the actual facts of the Ellora’s Cave case. However, I’d like to look at some back-of-the-envelope calculations.

How Big Is the EC Data Set?

Let’s go with the following assumptions:

  1. 934 authors (last I counted). Let’s round down to 900.
  2. Amazon gives me 6,767 items when I search for “Ellora’s Cave.” Let’s assume 4,500. Ergo, an author has an average of 5 titles, including paperback editions.
  3. Each book sells, per month, in an average of 5 stores from: EC’s own site, ARe, Kindle, Nook, Kobo, Google, iBooks, foreign markets for same, and any paperback vendors.
  4. Need to look back to when the accounting system changed last year, so 10 months of data at present.
  5. Each line item has seven pieces of data per month per author (per Cat Grant’s statements). The 7 pieces of data are: ISBN, title, format, store, amount received per unit, qty sold, total received (calculated, so not actually a separate piece of data), royalty %, royalty paid (also calculated).

So for each month:

4500 books x 5 stores books sold in that month x 7 other pieces of data = 157,000 pieces of data (or 174 per author). Per. Month.

Times ten months, so 1.57 million.

Consider the legal and accounting billing that would be involved in re-verifying and distilling 1.57 million pieces of data.

Another Aspect of Substantial Truth

In a case where “a set of authors” may not have received timely payments, royalty payments received by the publisher not corresponding with line items paid to authors could potentially also be a source of substantial truth.

Therefore, one would also need to audit amounts received from, say, Amazon, and amounts paid out in royalty checks that month, and determine that the amounts were equal. (Especially when others have said they’ve seen no Amazon drops during the same period for similar non-EC books.)

There are also around 9,000 checks to sort out.

  • When were they written?
  • When were they mailed?
  • When were they cashed?
  • When did they clear the bank?
  • Are any missing? Either not paid or not cashed?
  • If they’re missing, were they actually cut?

In theory, all that information is already entered and double-checked and could be provided to the defense at a moment’s notice.

The Question that Started This Post

It’s a good question. It doesn’t change the absolute truth of what was said on the day it was said, no.

But if events post-filing help show substantial truth, then probably they’re relevant.

My Intuition

This case, if it gets all the way to a jury trial, will be far, far more expensive to litigate than other people have expected because the potentially triable matters of fact involve large data sets.

It’s my understanding that the burden of proof is on the plaintiff to show substantive falsity. Meaning: Ellora’s Cave and the mysteriously joined Jasmine Jade Enterprises need to demonstrate that.

Can they sample the data?

I don’t see how they can prove that “a set of authors” is defamatory without the full data being examined. “A set of authors” doesn’t need to be a large set.

My intuition, given the lagging of checks mailed weeks after the check date, all the reports of no answer for months when authors asked about royalty checks, is that that aspect of the DA post, at least, was substantively true.

Consider, for example, how small the two examples at the top are in terms of data. A single arrest. A single drug test, and possibly one or more followups. But not 1.57 million of them.

Completely different animal, litigation-wise.

Originally published at deirdre.net. You can comment here or there.


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Ellora’s Cave: No COO? Selling Reverted Books? Lawsuit Update

broken-ankh

First: New EC-themed Art!

See above.

I’ve been trying to make a habit of including art with posts so there’s always a featured image. It’s a tough job. Broken ankh render from The Hairy Man.

Ellora’s Cave Lost Its COO?

Behold the current LinkedIn profile of Susan Edwards, who was Ellora’s Cave’s COO.

Note that it lists “Writer and Editor” as a job from “1980 – Present”, but Ellora’s Cave from “January 2005 – October 2014″, meaning she’s no longer there.

se_linkedin

Detail of the Ellora’s Cave entry:

se_ec_detail

Now Dear Author tweeted this last month:

…and…

But this is the first I’ve heard that it was externally verifiable.

Ellora’s Cave Allegedly Selling Titles It Doesn’t Have the Rights To

Angelia Sparrow posted this morning.

My mail today. Why does a check cut on September 30 have an October 25 postmark?

Why are books that I have had the rights returned still on sale?

“Eight Days Ablaze” was returned in Feb. I am not getting paid for it.
Why is it still available at Amazon, iTunes, GooglePlay, and Ellora’s Site itself?

“Eight Days Ablaze” is apparently still theirs. I checked my reversion letters, and it is not mentioned. “For Love of Etarin” and “Raising the Dead” however, HAVE reverted.

“For Love of Etarin” is the same way. And yet, it still available on GooglePlay.

Glad Hands and Privateer’s Treasure are still up on Amazon, And the rights reverted back August 15.

I can verify that it’s still on sale, but obviously I have no personal notice of whether or not the rights are reverted. I’ll just point authors to a resource out there for you. If your rights are reverted, then a DMCA takedown notice to the vendor is an appropriate—and probably the fastest—action.

It doesn’t give you the correct royalties for any amounts that were due you, though. That has to be addressed separately. Unfortunately.

Previous post of interest from Angelia.

I previously talked about Shoshanna Evers’s related story of books being sold after reversion here.

Also, Cat Grant shows her May 2014 royalty statement, received in September, where she states that she was paid for a Nook ebook on a title that, per her, reverted in November 2013.

B&N/Nook pays 60 days after the end of the month. So, if a sale took place in November while EC still had the rights, it should have been in the royalty statement for February or maybe March. May is unreasonable.

Again, I can see what the allegations are, but I don’t have personal knowledge of the reversion, just taking the claims at face value. If three authors are correct, how many other authors has EC been selling the works of without the rights to?

The No-Frills EC v. DA Lawsuit Page

Yesterday, out of frustration at the lawsuit documents and the order mine weren’t in, I created this simple page that emulates the federal court docket.

For some exhibits, there’s a short summary. Each, where applicable, is color-coded based on the lawsuit “thread” as Courtney defined them. And, if there are blog posts relating to them, they’re listed below the docket item.

It’s a very lightweight page: no images, no Javascript, and very very little CSS.

Lawsuit Update

Yesterday, defense filed their opposition to Ellora’s Cave’s Motion to Remand (from federal court to state court). Courtney Milan analyzes.

Particularly interesting footnote:

On 7 October, an email was sent to at least one of Ms. Lampe’s supervisors. On 14 October that same email was forwarded to the entire department within which Ms. Lampe works. This is consistent with prior actions by directors of Ellora’s Cave. Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case. Therefore, sending this subpoena on short notice was of great importance. Since the Defense addressed this with Plaintiff’s counsel, these actions have waned.

Wow. Just. Wow.

Let me pull this one line out and bold it.

Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case.

That is not OK.

From the opposition brief itself:

All parties agreed that the matter required needed additional time, and therefore the parties stipulated to a hearing to be held on 27 October. In the intervening period, counsel for the Defense was able to fully evaluate the case, and on 17 October it became 100% clear that removal was appropriate.

I’m just going to put those two together and back away slowly.

What’s Next?

Jane Litte’s answer is expected soon. The court granted the motion to continue on the TRO and gave EC/JJ 7 days to file a response to defense’s objection about the removal. In that way, the removal issue is settled before the TRO hearing, which does make sense.

Originally published at deirdre.net. You can comment here or there.


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Sales Analysis

PubNumbers.001
I’m a numbers person, and I like charts and graphs and other ways to reassure myself that things are Getting Done.

I check at the beginning of each month to make sure my titles are up where they’re supposed to be and to record the sales.

It would take more time if I had more books. This is the summary over time; one title dates back to 2011 and the other was published this year. I hear a lot of people wanting to sell on Amazon only. In my case, that would mean cutting 2/3 of my revenue.

I also have a spreadsheet that tracks each title month-by-month, with a different tab for each year.

Originally published at deirdre.net. You can comment here or there.


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Ellora’s Cave: Distribution Issues

Part of EC’s problem is, and has been, distribution.

I’ve done some spot checks on EC authors and found that they aren’t consistently in all possible stores. For many authors, there are enough titles that it can be difficult to demonstrate the issue, but in this case, I’ve picked very small cases that are easier to see.

When talking on twitter about Axl and Taylor, I happened to search the iBooks store instead of my library. My recollection was that I’d bought one of Taylor’s books back when I was taking notes and writing research questions for an ex-stripper character I wanted to write. I’d never read the book (as I’m working on a different book right now), so I was trying to find it in amongst the other billion books I’ve bought.

I found one book by Taylor in the store. My recollection was that he’d written two. I was wrong; he’s written three. Well, co-authored three. I filed that away, then thought I’d use his case as symptomatic of a larger problem that EC has with its book distribution.

  Take It Off! Take It Off! (Again) Top Guns
Ellora’s Cave site $5.20 $5.20 $5.95
All Romance Ebooks $6.50 $7.50 1
Amazon $5.39 $5.39 $5.78
Apple iBooks $5.99 $7.99 2
B&N Nook $5.99 $5.99 $6.99
Kobo $5.39 $5.39 $6.19

Huh.

What’s really interesting about this is that Apple reports that the seller for Taylor’s book on iBooks is All Romance Ebooks, which does not list that title.

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Originally published at deirdre.net. You can comment here or there.


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Ellora’s Cave Attempts to Remand to State Court

geometricBGs33-800
Courtney Milan has the blog post and the exhibits.

Let’s put it this way: birther Orly Taitz is famous for her remand-back-to-state-court motions. Not someone to emulate.

This is an aspect of federal procedure I don’t know a lot about, but my understanding is that removal is automatic, and that remanding is for related courts (e.g., an appeals court can, and often does, remand a case back to a lower court). In this case, however, I’m not sure a federal court has the legal right to remand to state court.

As Courtney Milan posts:

What to expect next: DA/Jane will almost certainly file a memorandum opposing a remand. The court will decide if it wants to hold a hearing on this or simply decide on its own, and we should get a decision from the court. That decision will almost certainly seal off this thread once and for all, and we can move on to the many, many other issues.uu

One Note on the Answer

Courtney is waiting for Jane Litte’s answer before posting commentary on both answers. She says (in the post linked above):

The reason I have not done this yet is that the answer is from Dear Author alone, and not from Jane in her personal capacity. Some things Jane will say in her answer will be duplicative. Some things she says will, I suspect, not be (which is why they didn’t file together).

I think part of the reason to file the answers separately is to make clear that Dear Author, LLC and Jane Litte are legally separate entities.

Originally published at deirdre.net. You can comment here or there.


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Ellora’s Cave: Dear Author’s Answer and Counterclaim

The exciting invocation of the Communications Decency Act in a lawsuit about an erotica/erotic romance publisher—but not in the way you’d expect. Up next after “Previously on….”

Earlier Documents of Note

From now on, I’ll post a quick recap at the beginning of this series.

  1. Dear Author’s blog post, The Curious Case of Ellora’s Cave. Ellora’s Cave and Jasmine Jade Enterprises sued Dear Author and Jane Litte over this post.
  2. Ellora’s Cave’s lawsuit, complete with the TRO request. I discuss the memorandum of law and the request to out anonymous commenters in this post.
  3. The removal to federal court, which I posted the meat of the other day.
  4. Opposition to Plaintiff’s Motion for Preliminary Injunction. I cover a few points in this post. Courtney Milan gives a deeper understanding of the document in her post. Exhibits: (Exhibit A, from Jane Litte; Exhibit B, from an editor hired in 2003; Exhibit C, from an author first published by EC in 2007; Exhibit D, from an author first published by EC in 2013; Exhibit E, from an editor hired in 2012; Exhibit F, from an editor hired in 2013; Exhibit G is a true copy of tax liens and Workers’ Comp liens against EC and Tina Engler/Jaid Black.)

Also of interest: Courtney Milan’s post, On Limited Purpose Public Figures. All my blog posts relating to Ellora’s Cave are tagged. There are a few not directly related to the lawsuit.

Dear Author’s Answer

Note that this is just Dear Author’s answer. I expect Jane Litte’s answer shortly.

Document here. Because it’s a paragraph-by-paragraph response to the lawsuit, you’ll need to have a copy of that to read side-by-side.

Responding to the first two paragraphs, “Consequently, this averment is denied and strict proof demanded.” That’s some legal verbiage that I may not understand the nuance of. The import, however, is to ensure that the correct parties are suing Dear Author and Jane Litte.

It starts to get interesting in ¶ 10:

Admitted that Defendant [Litte] authored an article entitled “The Curious Case of Ellora’s Cave,” which was published on the blog Dear Author, which is owned and operated by Dear Author. Denied as to the defined term “Libelous Publication” as an erroneous legal conclusion without factual foundation.

The next few paragraphs of fallout are flatly denied.

When it gets to the nuances of EC’s relationship fallouts, the phrasing changes to:

Dear Author is without knowledge or information sufficient to form a belief as to the truth or falsity of the corresponding averment. Consequently, this averment is denied and strict proof demanded.

Here are the most interesting paragraphs that applies to (sorry, 15-17 are being auto-renumbered to 1-3, grr):

  1. This Libelous Publication has caused distress among current Authors under contract with Ellora’s, and Ellora’s has received numerous contacts from Authors wishing to rescind contracts based on this Publication.</p>
  2. This Libelous Publication has caused distress among employees and contractors with Ellora’s and Ellora’s has received numerous contacts from employees and contractors concerned about the current state of the business.

  3. This Libelous Publication has also prevented Ellora’s from contracting with other potential authors.

I would guess (being an analytical sort), that in order to prove ¶ 15, one would have to show what the rate of authors requesting reversions/cancellations were before the publication, and what they were after. That would require excellent recordkeeping, though. (It would also require proof that defamation occurred, and a causal link.)

I’m not sure that ¶ 16 implies actual damages, especially not after the August 19th publication about Ellora’s Cave layoffs. That’s almost a month before the Curious post.

¶ 18-19 are about Jasmine Jade. Frankly, I’m not sure why Jasmine Jade is a party to this action. There is only one reference to JJ in the Curious post, and it’s about a tax lien that anyone could look up.

The rest of the responses are denials of various sorts.

Affirmative Defenses

Affirmative defenses are a curious beast. I’m guessing that Courtney will go into this later, but basically they are reasons why, even if the allegations are true, that aspect of the case can’t proceed.

An example would be statute of limitations. You sue for something where the law gave you a year to sue and it’s now 2 years after the event happened. Everything you say is true, but if the defense raises statute of limitations as an affirmative defense, then the lawsuit can’t proceed.

The other aspect of affirmative defenses is that they typically have to be raised in the answer. They can’t be brought up later. Thus, the affirmative defenses tend to be rather kitchen sink in approach.

First Affirmative Defense: Communications Decency Act

In order to understand why this affirmative defense is hilarious in context, one needs to know what the original intended purpose of the CDA was. Some excerpts from its legislative history:

What became the Communications Decency Act of 1996 was initiated in the Senate Commerce, Science and Transportation Committee [...] to expand the prohibitions against obscene, indecent and harassing phone calls so that they would apply to all forms of electronic communications. The amendment was offered “to address an increasing number of published reports of inappropriate uses of telecommunications technologies to transmit pornography, engage children in inappropriate adult contact, terrorize computer network users through “electronic stalking,” and seize personal information [...].”

The amendment from Feinstein, cosponsored by Republican Senator Trent Lott from Mississippi, sought to require cable and satellite companies to fully scramble any sexually explicit adult programming.

The Telecommunications Act of 1996 began in the House as HR 1555. [...] There were disputes over efforts to limit internet indecency and television violence though. The committee bill requested that the attorney general‟s office submit a report evaluating the enforceability of current criminal laws governing the distribution of obscenity over the internet, assessing the Federal, State, and local law enforcement resources available to enforce those laws, evaluating the technical means available to combat obscenity, and making recommendations on the means of encouraging the development of new technologies to deal with obscenity.

So let’s look at the affirmative defense here.

  1. Defendant Dear Author is a provider of interactive computer services as defined in 47 U.S.C. § 230(f)(2).</p>
  2. Dear Author neither created nor authored the content of any of the statements complained of in Plaintffs’ Complaint.

  3. Under 47 U.S.C. § 230(c)(1), Dear Author cannot be treated as the publisher of the above complained-of statements, and thus cannot be held liable, either at law or in equity, for the contents of the statements.

47 U.S.C. § 230(f)(2) (link to law) defines an “interactive computer service”:

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

The reason that blogs allow comments and internet forums exist is because the CDA makes it feasible to not get caught up in every squabble.

And 47 U.S.C. § 230(c)(1) states:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In other words, because Jane Litte, the pseudonymous author of the Curious post, is not Dear Author LLC, the LLC providing the Dear Author service offering the Curious post, Dear Author LLC is not liable for any statements Jane Litte made.

Or, in short, law says you’ve got the wrong person.

I admit to not being up enough on CDA case law to know what rulings have been. I am more familiar with cases like Religious Technology Center v. Netcom and the ruling excerpt incorporated into the Digital Millennium Copyright Act, if only because I was at ground zero during that controversy.

Second Affirmative Defense: Truth

  1. Although the burden of proof for falsity is upon Plaintiffs, as applied to Plaintiffs’ claims for defamation, Dear Author avers that all statements allegedly made by Dear Author complained of by Plaintiffs are true.</p>
  2. Any complained-of statements allegedly made by Dear Author that may happen to lack 100% factual veracity are substantially true, and thus treated as true as a matter of law.

  3. As truth is an absolute defense to defamation, Dear Author cannot be liable for Plaintiffs’ defamation claims.

Truth is an affirmative defense to defamation.

Third Affirmative Defense: Substantial Truth

  1. Any statements allegedly made by Dear Author complained of by Plaintiffs that are not literally true are substantially true, in that the “gist” or “sting” of the article is true.</p>
  2. As substantial truth is a defense to claims for defamation, Dear Author cannot be liable for Plaintiffs’ defamation claims.

Pretty straightforward.

Fourth Affirmative Defense: Qualified Privilege

I know almost nothing about qualified privilege as it relates to defamation cases, but the plaintiffs cited an Ohio case (#5, Am. Chem. Soc’y v. Leadscope, Inc.) that discussed it extensively. PDF of the ruling is here.

  1. All allegedly actionable statements were subject to qualified privilege as they were directed to parties having a common interest in the subject matter of the statements, particularly authors who either had a contractual relationship with Plaintiffs or who were contemplating one.</p>
  2. All allegedly actionable statements were subject to qualified privilege as they were made in the course of a justifiable exercise of a moral obligation, free of improper motive or malice.

  3. All allegedly actionable statements were subject to qualified privilege as they were fair comment and criticism of Defendants’ business practices, matters of significant public and social interest.

As someone who bought a few of EC’s titles last year to evaluate them as a potential market, I feel like this was aimed at me. Thanks, Jane.

Fifth Affirmative Defense: Failure To State A Claim

  1. Plaintiffs have failed to sufficiently plead the elements of a cause of
    action for libel.</p>
  2. Plaintiffs have failed to sufficiently plead the elements of a cause of
    action for libel per se.

Like many other causes of action, there are specific things that have to be alleged in order for there to be a claim for defamation. This (short) page lists them.

Re-reading the complaint, it seems like there’s at least some language to cover all the bases. If the judge rules that one of the required elements doesn’t exist and failure to state a claim isn’t raised as an affirmative defense, I’m not sure what would happen, exactly.

Sixth Affirmative Defense: Failure To Join an Indispensable Party

I saw this one coming.

  1. Plaintiffs have failed to join an indispensable party, Tina Engler, in their
    Complaint.</p>
  2. Tina Engler is an indispensable party because Plaintiffs’ Complaint
    identifies allegedly defamatory statements about her allegedly made by
    Dear Author.

  3. Engler is also an indispensable party because many of the allegedly
    defamatory statements identified in the Complaint attribute Plaintiffs’
    declining business performance to the actions of Engler.

  4. In Engler’s absence, the Court cannot afford complete relief among
    Plaintiffs and Dear Author.

  5. Because the allegations in Plaintiffs’ Complaint would also entitle Engler to
    bring an action against Dear Author for the same statements identified in the Complaint, not including Engler in this litigation would potentially make Dear Author subject to a substantial risk of incurring multiple or otherwise inconsistent obligations.

When asked why she wasn’t a plaintiff, here’s my answer in a comment on a previous post:

Last I heard, Jaid/Tina was 90% owner. As for why she’s not a plaintiff, my understanding of the legal concepts is that it’s a jurisdiction issue.

It’s a general principle of law that to sue for damages, you have to sue where the damage occurred. If someone published allegedly defamatory information on the internet about you and the person posting it was in Iowa and you’re based in Ohio, then the alleged damage occurred in Ohio. So that’s why EC sued in Ohio. (Note: this is a simplification because jurisdiction can get complicated.)

Catch is, Jaid lives in West Hollywood, California, so any alleged damage would be in California, and an Ohio court would not have jurisdiction to determine or award damages. Had Jaid also sued separately, then there probably would have been a motion to join both the cases in federal court, which is used to dealing with mixed jurisdiction cases.

However, California has strong anti-SLAPP protection, so California’s not a good jurisdiction for this particular case. As I understand it, anyway. (And, again, IANAL and TINLA.)

Getting back to the ownership issue: even when one is 90% owner of a corporation, the legal interests of the company and the legal interests of the individual may diverge significantly over the course of a trial, and it’s best practices to have separate counsel. That doubles the legal fees. In some cases, it may make sense to fold the company, and then the minority shareholders may wish to fight that, and that’s a completely separate issue from the interests of the individual majority owner as a person.

The simple way around this would have been to sue in federal court from the outset.

However, I’m not convinced that ¶ 12(f) and 12(g) in the complaint were strong allegations. They felt more like hurt feelings to me.

Seventh Affirmative Defense: Lack of Actual Malice

When in doubt, always look to the Supreme Court case that’s the seminal ruling on defamation law.

  1. Plaintiffs are general purpose public figures, or at least public figures in the context of Adult Romance publishers. Accordingly, their defamation claims are subject to the “actual malice” standard set forth in New York Times Co. v. Sullivan, which requires that the defendant made the allegedly defamatory statements with “knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” 376 U.S. 254, 280 (1964).</p>
  2. Dear Author at no point harbored any doubt as to the truth of the complained of statements, and had no reason to doubt their accuracy.

  3. As actual malice is a requirement to establish liability for defamation in these circumstances, Dear Author cannot be liable for Plaintiffs’ defamation claims.

Dear Author’s Counterclaim

Document here.

Can be summed up as: because the suit was filed as an abuse of process—in part because Dear Author is exempt under the CDA and in part because the claims are baseless—Dear Author is requesting compensatory and punitive damages as well as costs.

What’s Next?

I’m guessing Jane Litte’s answer, along with a likely counterclaim, are coming up next. Courtney will post on both after Jane’s is filed. Unless there’s something particularly interesting, I’ll probably just post a link to her article when it’s up.

There’s also a hearing on the 29th about the TRO/preliminary injunction, i.e., taking the Curious post offline.

Originally published at deirdre.net. You can comment here or there.


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