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Friday Midday News: The Blogger as a Journalist

Anita Clenney has filed her answer (PDF) to the Sourcebooks complaint.  In it, she asserts four points:

1) Inclusion of 8 pages of advertisements  without permission and/or payment constitutes a material breach.  Clenney argues that the industry standard is a) defined by the actions of two or more of the big 6 and that the industry standard is for inclusion of a provision regarding advertisement.

Unfortunately for Sourcebooks, its understanding of actual publishing industry practice as to the placement of advertisements in books is incorrect. Therefore, Sourcebooks does not actually adhere to the industry standard by having unilaterally placed advertisements for its authors’ books in Awaken the Highland Warrior without having first obtained Clenney’s consent and agreeing to compensate her.

As other, larger publishers’ contracts reflect, the placement of advertisements, whether for the book’s author or others, is a matter of negotiation, and the publisher’s right to do so is agreed upon and set forth in the contract.

In support of this, she provides excerpts of four contracts

  • Berkley contract: “‘industry standard’ as used herein shall mean the ebook royalty rate that is routinely paid by at least two (2) majory publishers”
  • S&S contract: Consistent with Clenney’s interpretation
  • Macmillan contract:  ”advertisements other than for books may not be printed without consent.”
  • Harlequin contract: No third party advertising.

This looks to be the weakest part of Clenney’s claim.  From speaking with those in the industry, it is not common practice to provide compensation for after matter.

2)  Sourcebooks has a pattern and practice of breaching contracts. I’m not sure what the purpose of this part of the petition other than to respond to the Sourcebooks’ inclusion of Book Cents’ business in its complaint. Book Cents’ business and Sourcebooks actions toward other authors is not relevant to whether Sourcebooks breached its contract with Anita Clenney.   Of interest was the complaints made to RWA which were not followed up on.  I confirmed that RWA will not investigate a claim unless it is made by a member of good standing and who is having a dispute with the publisher.  Thus a complaint made by an agent will not be investigate.

This part of the answer is on pages 16 through 20 and recounts three troublesome issues that Sourcebooks has had with other authors.

3)  Non payment of royalties / no receipt of royalty statements.  Clenney alleges she has not received payment of royalties or even a royalty statement since the publication of her book in 2011.  Sourcebooks asserts that royalty statements have been sent but delivery has been refused.

4)  Violation of privacy.  The complaint filed by Sourcebooks included the contract as an exhibit.  The contract included the address and social security number of Clenney.  According to the Federal Rules of Civil Procedure this information should have been redacted.  Clenney has filed a countersuit on the basis of this inappropriate dissemination of the social security number under the Illinois Consumer Fraud and  Deceptive Business Practices Act and the Illinois Personal Information Protection Act.  I’m not familiar with those acts and whether they give rise to a private cause of action but it could be the most serious part of Clenney’s answer and counterclaim.

Sourcebooks will now need to respond with its own answer.

*****

Reviews of Agony/Ecstasy are rolling in.  Dawn Crowne at Romantic Times is conducting a riff off of the DABWAHA by pitting the stories against each other.  Fun.

  • From Harriet Klausner:  ”Though the characters mostly relate in trysts, most are surprisingly much more developed than normally seen in a short story collection.  Readers will enjoy this entertaining erotic collection that includes a variety of sub-genres”
  • From Reader Ridley:  ”It’s like most anthologies: some great stories, some terrible ones.”
  • From Reader Mandi (Smexy Books):  ”I was hesitant to read this, because I’m not huge on anthologies to begin with and I thought 21 very short stories would not be for me. But I was pleasantly surprised by how much I enjoyed them. Many are edgy and all are erotic.”
  • From Readers MinnChica and Has_Bookpushers, Parts 1 and Parts 2: Some they loved, some not so much.
  • From Reader Jan: “Agony/Ecstasy edited by Jane Litte is a WONDERFUL surprise. Even though it’s a book of BDSM erotica, the stories are well-written and thought-provoking.”

*****

The next big self published author is Darcy Chan, a lawyer, who wrote one book five years ago that was rejected by a dozen houses and 100 literary agents.  She tabled the book but decided to self publish her novel earlier this year.  She bought banner ads, a couple of reviews (one from Kirkus), spending about $1000 for promotions.  Source: Wall Street Journal

Then, at the end of June, “The Mill River Recluse” got a mention on a site called Ereader News Today, which posts tips for Kindle readers. Over the next two days, it sold another 600 copies. Ms. Chan realized she might be able to drive sales herself. She spent about $1,000 on marketing, buying banner ads on websites and blogs devoted to Kindle readers and a promotional spot on goodreads.com, a book-recommendation site with more than six million members.

She has sold over 400,000 copies and made around $130,000 before taxes.  Chan wants to find a domestic publisher but most domestic publishers are concerned that with 400,000 copies sold the audience left for her work is limited.  She has had several foreign offers, movie offers, and audible book offers but waits for the Big 6 to come calling.

*******

Despite the similarities in several passages between Lenore Hart’s “The Raven’s Bride” published by St. Martin’s Press and The Very Young Mrs. Poe  written by Cothburn O’Neal and published in 1956, SMP is standing by its author.  The smoking gun, according to others, is that Hart copies and incorporates made up facts about Poe’s wife that originally appeared in O’Neal’s fictional work.  O’Neal passed away which probably lends itself well to Hart and SMP’s defense.    SMP argues that the author came up with the same made up facts on her own.  Source: NY Times blog

In April 2011, when these allegations first came to our attention, Ms. Hart supplied a detailed response, which cited her research into biographical and historical sources, and explained why her novel and Cothburn O’Neal’s “The Very Young Mrs. Poe” contain certain details of place, description and incident. As Ms. Hart explained in her response, of course two novels about the same historical figure necessarily reliant on the same limited historical record will have similarities. We have reviewed that response and remain satisfied with Ms. Hart’s explanation.

*****

On Tuesday, the Seattle Times reported that a blogger was slapped with a $2.5 million judgment in a defamation suit.  Bloggers everywhere became concerned because the blogger attempted to use the media shield law to protect herself and the court rejected the defense.  The blogger had several websites that she used to target one financial investment firm.  She wrote many articles about that company and the founder, changing the online search results.  The court found that all but one blog post was opinion.  The one blog post that the court found factual  included some pointed fraud allegations.

The blogger represented herself (which is always a mistake) and said that the accusation was true and that the information had been leaked to her.  She did not want to reveal the leaker and tried to protect herself using the media shield law.

The court rejected this and other bloggers focused on this passage by the court:

… although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law

Forbes, a business friendly site, noted that there were additional points the court noted:

Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”

The Oregon media shield law does not include blogs specifically and Forbes suggests that needs to be revised.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

43 Comments

  1. Angela James
    Dec 09, 2011 @ 11:32:56

    There’s a political blogger local to me who tried to use the media shield law a few years back when he was slapped with a defamation suit by our mayor at the time (my local politics are a mess), because she was a favorite target of the blogger (not that I blame him. She was a terrible mayor). I don’t think his attempt to claim he didn’t have to reveal his sources because he was media was successful either. I may have sent you a link to that case at the time.

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  2. Isobel Carr
    Dec 09, 2011 @ 11:48:59

    Well, I’m with one of the big six (Hachette) and was formerly with Kensington (not big 6, but still a mainstream NY publisher) and neither of my contracts contain a clause about my granting or withholding permission for them to put additional advertising materials in my books. It’s simply not addressed. The only clauses about advertising and bonus materials is related to my agreeing to create them and that they may use them however they see fit. Both of these publishers do, of course, cross promote their authors in each others books.

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  3. Beth
    Dec 09, 2011 @ 13:04:38

    If the agent is a member of RWA they won’t investigate a complaint? How reassuring. What’s the point of making sure agents are endorsed by them then?

    And if any question is raised about a publisher, why not investigate for the benefit of your members? SFWA has done this, and they suspended publishers who do not act in good faith. What is RWA good for if they don’t advocate for their members?

    I’ve gone through a shelf full of recent books, and I’m not seeing any advertising except for future books by the same author, or past books by that author. I think category books have ads for other authors. I guess the court will decide.

    As for the invasion of privacy, it makes theft of her identity a cinch. Terrible stuff.

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  4. Shannon Stacey
    Dec 09, 2011 @ 13:27:39

    I’m not sure why Harlequin was included in her answer.

    “On third party advertisements…fifty percent of the Net Amount Received. No royalties shall be payable on advertisements on listings of other books, products or services or Publisher or its Related Licensees” (From the PDF document)

    They can include excerpts and promotional material at will. If they wanted to have ads for four-wheelers and bug spray in the back, however, that’s a different story. But as evidence of wrongdoing in putting excerpts in the back of her book, it doesn’t really help.

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  5. lijakaca
    Dec 09, 2011 @ 13:36:10

    Fact-checking and disclosures of conflict of interest – do most media outlets still do this consistently? Maybe I’m cynical, but it sure doesn’t seem like it. In fact, I trust things stated on the blogs I read more than I do the MSM – most of them provide sources and backup, or are called out in comments to do so.

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  6. Las
    Dec 09, 2011 @ 13:42:37

    Including Harriet Klausner’s “review” is supposed to be a joke, right?

    The Oregon media shield law does not include blogs specifically and Forbes suggests that needs to be revised.

    Do they suggest what criteria those blogs would have to meet for them to be included? I’m kind of rolling my eyes at “investigative blogger.”

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  7. DS
    Dec 09, 2011 @ 13:45:17

    OMG you quoted HK! Way to go! :}

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  8. Courtney Milan
    Dec 09, 2011 @ 14:07:46

    @Shannon Stacey: There was a lot of stuff in the answer that was a complete head-scratcher.

    One of the things they’re trying to claim is that enforcement of the contract is barred by unclean hands, basically by claiming that Sourcebooks regularly breaches contracts with other authors.

    So this language appears: Sourcebooks routinely and regularly places advertisements in its authors’ books, and justifies its refusal to include language in its contract authorizing such advertisements and compensating the author, by claiming that including such advertisements is a standard practice in the publishing industry.

    I find this to be a perplexing admission. You admit the contract is silent on the practice. You admit that Sourcebooks regularly does this sort of thing. So you signed the contract, knowing (or at least being reckless about knowing) that Sourcebooks does this, and knowing that they don’t compensate authors…

    Even if this doesn’t decide the question of whether this is a breach of contract, it surely goes to the materiality of the breach. If you knew they did this, and you didn’t bother to specify it in the contract, how can you claim that this is the kind of breach that is so bad that you are justified in walking away from the contract entirely?

    The complaint was written, strategically, to suggest to the judge that Clenney’s counsel was crazy. It was a pretty darned good complaint.

    A response that is all over the map with no strategic sense of how arguments help, hurt, or interact with each other really doesn’t help. The response is, in my opinion, not a stellar example of lawyering, and that’s a vast understatement.

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  9. Beth
    Dec 09, 2011 @ 14:42:12

    Courtney,
    Are you an attorney? I am not. It seems to me to be a way to show a pattern of behavior on the publisher’s part.

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  10. Jane
    Dec 09, 2011 @ 14:46:50

    @Beth Yes, she is. Pattern of behavior on a party to a contract isn’t really relevant as to whether the party is breaching THIS particular contract.

    The unclean hands theory applies only in equitable actions but my understanding on that doctrine is that Clenney would have to prove that Sourcebooks acted in bad faith against Clenney. I’m still not convinced that their other bad deeds (alleged bad deeds) would be relevant.

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  11. Jane
    Dec 09, 2011 @ 14:47:43

    @Las I think to not get Klausnerized would mean the book didn’t exist.

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  12. karlynp
    Dec 09, 2011 @ 15:33:33

    Considering Klausner highly rated and loved the over 26,000 books she’s reviewed, many of which I question if she even read based on her many inaccurate comments about the plot and characters, I too am surprised to see her quoted. Now Ridley’s quote I get, cause she tells it like it is. I also enjoy many of the same books she enjoys, so her review I’ll believe as credible.

    Side note to Courtney Milan as I see she’s posting here: I keep checking your web site trying to find out when you’re releasing Unraveled. Hurry please. :-)

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  13. Isobel Carr
    Dec 09, 2011 @ 15:40:13

    @Beth:

    *I’m not a lawyer, but I fight with them for a living, so parsing legalese is my job*

    Clearly both Harlequin and Hachette cross promote their other authors in their books without compensation, so by Clenney’s own chosen standard (i.e. Berkley’s definition of industry standard) this is a common practice. As such, if it was something that Clenney had specific concerns about, she should have brought it up before signing a contract which was silent on the issue.

    I personally find that #23 in Sourcebook’s petition and Clenney’s response to same undercut Clenney’s claim. If you can’t be bothered to familiarize yourself with the product being put out by a publisher you have submitted your work to, and then decide to accept an offer from, they can hardly be blamed for your ignorance.

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  14. Janine
    Dec 09, 2011 @ 16:47:36

    @karlynp: Although I didn’t link to the Klausner review on my site because I figured many readers would share your reaction, I get where Jane is coming from. It was the first A/E review I saw, so it made being published feel real.

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  15. Jane
    Dec 09, 2011 @ 16:57:48

    @karlynp: I put it up as a joke because a bunch of people emailed me and said I got “Klausnerized”. Obviously not as awesome as when Klausner suggested in her review of Meljean’s Heart of Steel that the story involved a lesbian romance between Lady Corsair and Archimedes Fox’s sister, but you work with what you are given.

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  16. Janine
    Dec 09, 2011 @ 17:11:44

    @Jane: Her description of my story entertained me because she made it sound like the hero was on the Titanic.

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  17. karlynp
    Dec 09, 2011 @ 17:15:11

    @Jane: LOL! I just finished Heart of Steel (loved it!) and there is no way you’d confuse them as lesbians if you honestly read it. HK strikes again.

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  18. Amber
    Dec 09, 2011 @ 17:33:43

    I laughed when I saw Ridley’s review, because that is so her. And then my smile died when I read this one:

    “Even though it’s a book of BDSM erotica, the stories are well-written and thought-provoking.”

    Excuse me while I go bang my head on the wall and other teeth-gnashing dramatics. I doubt this reader would appreciate this comment being made if we replace “BDSM erotica” with “romance” or whatever her genre of choice is.

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  19. RBrose
    Dec 09, 2011 @ 21:03:37

    Oh you did NOT just quote Harriet Klausner in your reviews! Tell me you didn’t do that!!

    Joke or no joke, so many people still don’t realise “she” is a joke. Most historical romance readers still vote her reviews to the top of the page.

    By the way, is it just my computer, or is the text on this site really weird now? It’s HUGE and is giving me a headache.

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  20. Jane
    Dec 09, 2011 @ 23:41:18

    I did quote Klausner but it was meant as a joke. Perhaps a bad one?

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  21. eggs
    Dec 10, 2011 @ 04:36:03

    @Amber: For me, ‘poorly written’ means that there is no character arc, no emotional hookup between the reader and the characters and no believable plot.

    There are plenty of category romances that fall into this characterization, which is why I don’t read category romances anymore unless someone gives a recommendation like “Even though it’s a category romance, the story is well-written and thought-provoking.” You will find plenty of reviews on this site and others which basically say that.

    Considering that BDSM erotica is usually published in lengths even shorter than category romance, and at a similar volume, the problems endemic to the category genre have carried over to the BDSM erotica genre. I’ve only just started reading it and I’ve already

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  22. Laura
    Dec 10, 2011 @ 12:21:05

    Count me among those who “got” the Klausner quote. We all know HK, can we stop being so offended by her?

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  23. Amber
    Dec 10, 2011 @ 14:11:06

    @eggs There is plenty of crap in every genre and BDSM erotica is no exception. I’ve read plenty of wall-bangers myself. But I suppose I tend to define a genre by the best it has to offer, or even the average, NOT the median, the random thing you stumbled over on Amazon with a 4 ratings. For readers new to the genre, it may be a discovery problem. You want to read a great BDSM book, but how do you find it? That’s a valid problem, but it does not mean that the BDSM genre is inherently or exhaustively poorly written or shallow.

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  24. Ridley
    Dec 10, 2011 @ 14:44:54

    @eggs: Amber should’ve posted the next two lines in that review, which was, “Come on, most of us cringe when we think about BDSM. It’s some type of sick sexually perverse way of seeking gratification, right?” That’s what raised my hackles.

    And we all know Harriet’s a bot. Give poor Jane some credit. That quote was totally tongue-in-cheek.

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  25. Jan KC
    Dec 10, 2011 @ 18:07:29

    Amber: As the author of the BDSM observation which aroused your objection, I would actually welcome replacing the words “BDSM erotica” with “romance,” especially if the words were surrounded by the complementary statements I made (and meant) about Jane’s wonderful book.

    I am pleased that my review provoked some discussion, too, although I would be disappointed if the upshot of my comments was an injury to Amber’s head or teeth, or even offense to her over-developed BDSM sensibilities. Time for some basic hermeneutics. We all write from a place. None of us occupy (although some obviously think otherwise) a spot on Mt. Olympus. To recognize and disclose our perspective is part on an honest review, and generally helps readers critically evaluate the book under review.

    Teeth-gnashing, head-banging and hackle-raising (ala Ridley’s post) are perhaps signs of an insular amateurism and could be considered unwelcoming and exclusionary. I hope in the future our exchanges become less parochial.

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  26. Isabel C.
    Dec 10, 2011 @ 22:47:36

    Come on, most of us cringe when we think about BDSM. It’s some type of sick sexually perverse way of seeking gratification, right?

    We…do?

    Really?

    Who’s this “we” of whom you speak? Because:

    1. Every third sophomore at my college owned a dog collar and some fuzzy handcuffs, and my most negative association with the subculture is the girls who thought liking to be spanked now and again made them Special Darque Snowflakes.

    2. From what I recall in beauty-salon and gym-time reading, every other issue of Cosmo has a few “whee, let him tie you up/pin him down and have your way with him/etc” sex tips. Cosmo: not really on the “edgy” end of the sexual spectrum.

    So the idea that “most of us” cringe away from the sick sexy wrongness that is BDSM sort of makes me giggle, in a “people still think Ozzy Osbourne is sinister” kind of way.

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  27. Ridley
    Dec 10, 2011 @ 23:07:22

    @Jan KC: Aren’t you adorable with your big words! So precious.

    You’re correct that we all bring a personal perspective to our reviewing. In your case, you brought an ignorant or sex-negative one, judging by your dismissal of BDSM practicioners as depraved perverts. You also assume that your perspective is the dominant or more generalized one, which is what raises my hackles, as you can’t speak for anyone but yourself.

    Also, I hardly see how I’m being “insular” or “amateurish” by pointing out your prejudice. Last I checked, sex-positivity was inclusive. Wouldn’t painting a wide swath of people as sick perverts be the mark of an insulated amateur? I mean, have you met the internet before?

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  28. hfor
    Dec 11, 2011 @ 06:36:17

    This thread attacking Jan from KC is inadvertently (too big a word?) corroborating (oops!) what i understood to be one of her basic points, to wit: BDSM erotica has real value, even to some us of us who have less experience with it than others. Jan from KC revealed herself as someone for whom BDSM erotica was a relatively new experience, but seems now to be joyful consumer. It is clear she really liked Jane’s book, for example. For that, she is criticized as “ignorant” or one who thinks BDSM practitioners are “depraved perverts,” a term Jan did not use and I suspect would not agree with. But let’s not let the facts get in the way of displaying our cleverness and sex-positivity.

    I’m an educator. To see growth in a person, or to see a student discover something of value or open herself to a rewarding experience is the goal. This attack thread is a bit of an embarrassment to those values.

    Isabel and Ridley remind me of those old New York Review of Books debates where the writers forget the basic book or idea under review (in this case, Jan’s favorable review of Jane’s book), and begin to obsess over who is smarter, more clever or has the sharper pen. What a waste. And, regrettably, such displays are evidence of the insularity and amatuerishness previously mentioned by you know who. Ridley, for example, claims to criticize Jan because Jan can’t speak for anyone but herself. Hey, Ridley, that was Jan’s point when she said we all write from a place. Pointing out her prejudice confirms the fact (again, one made rather well in Jan’s response) that we all have prejudices (i.e. perspectives informing our takes). Including Ridley. The point is to discover and reveal them, not mount some phony intellectual high-ground (which, by the way, does not exist outside of your prejudice, Ridley) and exclude a fellow traveler.

    I look forward to some more cute but shallow responses from Ridley and Isabel promoting their circular and exclusionary point of view (i.e., if you haven’t always appreciated BDSM erotica, if you come to it from a place different from others, then you are ignorant notwithstanding your views of it today).

    One plea: try to elevate your game, next time. No more straw man arguments, Ridley, such as your ridiculous claim that Jan painted a wide swath of folks as sick perverts. She, of course, did no such thing.

    To assist, consider a direct response to this true claim: BDSM erotica is not better (in the moral sense) than romance novels, it is only different. Thus one who enjoys romance but does not enjoy BDSM erotica (obviously, this doesn’t describe Jan, but it does describe me) is not depraved. They are only different. Are you open (inclusive) toward my difference?

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  29. Beth
    Dec 11, 2011 @ 06:43:44

    Isobel,
    I agree with you that if cross-promotion was a standard in the particular publisher’s books, then something should have been said upfront. However, this publisher has only had a romance line for several years, and when the contract was completed, perhaps this wasn’t their standard?

    What’s on my shelves shows promotion for an author’s other books, and that seems to be the standard for several publishers.

    As far as placing the blame on the author or even the agent, if something isn’t specifically mentioned in a contract does that give a publisher automatically the right to claim the right? Because someone didn’t specifically name that item as not permitted, the publisher is permitted to use it, or do something not mentioned? I hope not. Because that would open up authors to all sorts of abuse. Most contracts say something along the lines of “if a right isn’t granted it remains with the author.” (pls excuse my paraphrase.) If they don’t tell an author they are using their work for advertising, do they have that right to automatically do so?

    All the focus seems to be on this one issue, but the other issues stated, such as the non-payment of royalties or statements provided, etc., are troubling.

    What I find disturbing is the lack of author support for another author, or even waiting on judgement.

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  30. Isabel C.
    Dec 11, 2011 @ 10:13:28

    @hfor: BDSM actually isn’t my cup of tea either.

    It was the “Come on, most of us cringe” quote that made me respond: I felt it worth pointing out that, er, “most of us” do no such thing. “I used to cringe” would’ve been fine.

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  31. Ridley
    Dec 11, 2011 @ 10:48:24

    @hfor: Oh, hun. My eyes, they roll.

    Saying “most of us” think BDSM is a “sick sexually perverse way of seeking gratification” is not saying “I don’t care for BDSM erotica as a rule.”

    The former statement is insulting actual people and, yes, painting a wide swath of people with a negative brush. It targets both BDSM practitioners by saying they’re sick and perverse and your average romance reader by inferring via weasel word that they’re all sex-negative, judgmental sorts.

    The latter statement is something I’d actually agree with. Most BDSM erotica is a mess of wishful fantasy and shameless appropriation.

    If Jan wants to be ignorant or admit an earlier ignorance of BDSM, that’s great. It is good to know where reviewers are coming from. I only object to her taking “most of us” down with her.

    Also, being sex positive doesn’t mean every kink out there has to appeal to you. It only means not declaring them or their adherents as “sick [and] sexually perverse.”

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  32. hfor
    Dec 11, 2011 @ 13:17:18

    Ridley, thanks for not disappointing. During the Bush years I often said that the problem with democracy is that it gives knuckleheads a voice. The same is true of internet blogs, although happily with far less serious consequences (I’m obviously assuming you aren’t in political power). The statement you quote and find so profoundly troubling is not, contrary to your misreading, an empirical description of some “swath” of humanity. It is a rhetorical description of what Jan KC thinks of as “the traditional way of thinking.” Nothing more. She isn’t adopting “the traditional way of thinking” but rather setting it up to knock it down, and in the process praise the book under review.

    Read fairly and without intending to police the thought of others, Jan KC’s review is neither insulting nor ignorant. Having a sex positive point of view isn’t a license to distort another’s words or engage in ad hominen statements (she is “ignorant”). Whatever the subject matter — BDSM, cats or cars — folks who make their points by demeaning others tend to corrupt the conversation. On a positive note, however, you would make an excellent talk radio host for a tiny but passionate group of listeners.

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  33. Ridley
    Dec 11, 2011 @ 13:59:58

    @hfor: Man, you’re putting together quite the case here to dethrone me as resident troll. I’m kinda nervous.

    “Whatever the subject matter — BDSM, cats or cars — folks who make their points by demeaning others tend to corrupt the conversation.”

    Surely treating a prejudiced statement like “most of us cringe when we think about BDSM. It’s some type of sick sexually perverse way of seeking gratification” as a fait accompli is demeaning? What other way is there to understand that statement other than “your average person thinks kinky people are depraved?” And how exactly does she go about discrediting this assumption? Her praise, as it was, read to me like “these stories are good because they’re not like real perverts.”

    And I hardly see how expressing my reaction to something is acting as the “thought police.” I found her review problematic, that’s all. If I wanted to play thought policewoman, I’d have organized a clicking campaign to click “report abuse” until Amazon pulled the review. Freedom of speech doesn’t mean everyone’s has to agree with or even respect what you have to say.

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  34. Anonymous Bosch
    Dec 11, 2011 @ 14:03:58

    @Isobel

    “…if it was something that Clenney had specific concerns about, she should have brought it up before signing a contract which was silent on the issue.”

    The rights the publisher has with respect to the work are governed by what’s IN the contract, not what isn’t. And what SB has done with respect to other contracts is irrelevant to whether they have a right to do it here. The point raised in the counterclaim is that industry standard is to specifically provide for it in the contract, and if it isn’t mentioned, the right has been waived by the publisher. It is a classic, straightforward contract interpretation issue, and if there is doubt, it is decided against the drafter, SB.

    That’s how I read it, anyway.

    This defense of SB, which is essentially that they’ve gotten away with it in the past so it must be okay, is odd.

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  35. hfor
    Dec 11, 2011 @ 15:55:13

    Ridley, there are two separate tracks to our exchanges, only one of which is interesting. Track 1 is about style and how you go about expressing your opinions. You refer to yourself as a troll, perhaps as a joke, though I think the description fits and is explanatory. You are of course entitled to be as troll-like, unkind, and lacking in charity as you like. Go for it. My only point about that is that such a style has its costs. One cost is that it gets in the way of serious consideration of substantive points one might like to make.

    Track 2 is about the substance of your interpretation and whether it withstands scrutiny. I confess astonishment by your last post, when you quote your favorite phrases from the review and ask, “What other way is there to understand that statement other than ‘your average person thinks kinky people are depraved?’” First, I explained the meaning of that statement in an earlier post, but you don’t engage that analysis, instead simply repeat the preferred mantra. Not a good argument. Second, for the sake of argument, let us stipulate that, read in context, Jan KC asserted that the traditional way of thinking is that “your average person thinks kinky people are depraved?” So what? At worst, that could be construed as a criticism of the “average person,” but that wasn’t your point, since you obviously didn’t write in defense of traditionalism. You instead wrote to attack a person you misunderstood as a traditionalist, and did so in the style described above. Third, are you now defending kinky people? Do you think BDSM practitioners, such as those whose cause you took up, are all kinky? By God, they may be kinky but they aren’t depraved, is that it? I understand its tough to be consistent or cogent when you develop positions on the fly to suit the needs of maintaining your status as queen troll, a status richly deserved, but your reasoning looks like a pretzel.

    Your reference to freedom of speech is a real red herring, since at no point have I ever challenged your right to be what you are, and to continue to supply the evidence. So the freedom of speech reference is a weak attempt to deflect from the more serious points revealing the poverty of your opinion. Your opinions have real value, however, insofar as they provide the grist for arriving at the truth (I’m stealing that one from JS Mill). What gets me most about all of this is not where anybody stands on sex positivity. Instead its the mean-spirited way that the dialogue unfolds.

    Finally, you don’t need an overt clicking campaign to serve as a soldier in the thought police. I haven’t seen any more posts from Jan KC and, although I don’t know why, I suspect her voice — which may have been hard for her to find, and which reflected an appreciation of Jane’s book — has been chilled by this not very inviting or welcoming reception. If you had something important to say, perhaps your exclusionary efforts would be more understandable. But you don’t.

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  36. Ridley
    Dec 11, 2011 @ 16:50:13

    @hfor: tl;dr

    Get off my damn lawn.

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  37. hfor
    Dec 11, 2011 @ 17:10:13

    From the Urban Dictionary:

    17. TL;DR 9 up, 14 down
    a term originating from forums and text messages in respons to ebscenely long forum posts or texts. means ‘too long, didn’t read.’ the original use has died out however, and it is now only ever used by argumentative cunts who have been outargued and don’t want to admit it. as uch, it’s current meaning (which would be the corrupted phrase) is ‘can’t think of an argument, gonna pretend i couldn’t be arsed to read it.’
    man 1: …so yeah. learn your stuff, man, you’re making yourself look stupid

    man (?) 2: (thinks) shit, that’s a damn good argument! i got nothin’! unless…

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  38. Brian
    Dec 11, 2011 @ 20:22:05

    @karlynp:

    Side note to Courtney Milan as I see she’s posting here: I keep checking your web site trying to find out when you’re releasing Unraveled. Hurry please. :-)

    It’s out now.

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  39. angelface
    Dec 11, 2011 @ 20:34:38

    @hfor: Bravo. Nice

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  40. Ridley
    Dec 11, 2011 @ 21:51:22

    Who’d have thought the person so concerned with keeping a friendly and welcoming tone would be the one calling someone an “argumentative cunt?”

    The world’s just full of surprises.

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  41. Courtney Milan
    Dec 11, 2011 @ 22:41:19

    @Beth: What I find disturbing is the lack of author support for another author, or even waiting on judgement.

    I feel for Clenney. She’s in a hard situation.

    My response has nothing to do with the merits of the suit, or my support for Clenney, and everything to do with my general disdain for poor lawyering. Judging on sheer lawyering skills, Sourcebooks is kicking Clenney’s butt. The complaint had an overarching strategy, both subtle and unsubtle.

    Part of the subtle strategy was to paint counsel for the other side as unstable, not very smart, and lacking in ethics. I can’t imagine what other purpose the lengthy divergence into details about Clenney’s agent/lawyer’s finances serves. If Clenney’s lawyer was as good as Sourcebooks’, you’d have seen them take control of the narrative at the answer stage, and push back on the story that Sourcebooks painted. They didn’t.

    Sourcebooks put in a measured, reasonable sounding complaint that painted the other side as crazy, unethical, and grasping at straws. Clenney’s response left no straw ungrasped at.

    I don’t know the facts. I can’t judge the merits. But I can judge the lawyering from the sidelines, and in my view Clenney is getting outlawyered big time.

    So this is not so much authors not sticking up for authors (something I don’t understand in any event: if an author is wrong, why can’t I say so? do I have to always believe that an author should win every lawsuit? why?), so much as a lawyer not sticking up for another lawyer.

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  42. Beth
    Dec 12, 2011 @ 09:34:03

    Courtney,

    By author support I mean at least giving the author the benefit of the doubt until after the case is adjudicated or dismissed.

    I can’t believe any author or agent would prefer going to court to settling things amicably outside, so there MUST be something on both sides. If an author breaks a contract for no good reason, word will get around, and other publishers might be reluctant to buy from that author, so this doesn’t make sense otherwise. Also, it would have been easy enough for the author just to give them the book, move on, and not look back.

    If it’s a question of principle, I think the author has balls to be willing to go through all this. A lot of authors (and agents) just go along to get along, so I am interested in the outcome. Whatever it is, it will impact other authors.

    As far as the quality of lawyers, I don’t have the expertise to judge; however, it doesn’t look very professional or ethical or subtle for the publisher’s lawyers to expose the author’s personal info on the internet. I would imagine even baby lawyers know how to follow the rules. How does that get made right? Once it’s out there, it’s forever, even if it’s taken down. So if it was a tactic, it was unethical. If it was a mistake, it’s bad lawyering. No win there.

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  43. Kris
    Dec 12, 2011 @ 13:46:12

    So…if something is ‘silent’ in a contract, at what point does it get to be assumed by one of the parties?

    Without being a lawyer, that seems to me to be the important issue here, whether or not this particular case will end up having merit. It would be a Bad Thing, I think, to allow issues untouched on in a literary contract to be de facto assumed by one of the parties.

    I assume there are guidelines for this in the legal world. And in this case, I’m guessing is has to do with ‘industry standard.’

    Hmmm…it still feels a little scary, on a legal level, to have ‘silent issues’ that do not flow naturally and obviously from a ‘loud’ issue to be assumed by one of the parties. And even more so, by the contract-writing party (i.e. in this case, the publisher.)

    Personally, I don’t have a problem with ads for other books showing up in the back of a book, but as far as it being a legal issue re: contracts (when do silent issues get to be assumed?), I’d have concerns.

    So, what is a meaningful legal distinction that can describe the line at which an issue untouched on in a contract gets absorbed/taken on by one of the parties? Especially by the party who wrote the contract.

    (Beware: Proper legal terminology doesn’t exist in the above.)

    ReplyReply

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