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Saturday Midday News: Red Rose Publishing Threatens Legal Action

Red Rose PublishingOn Friday, I received a phone call from a lawyer in Utica, New York who represents Red Rose Publishing. RRP is claiming that I defamed them in this post here wherein I summarized the reported complaints of RRP authors and posted the president and owner’s email regarding her displeasure with RRP authors. The lawyer wanted my address so he could send me some correspondence that “laypeople may call a cease and desist” letter.   At the time of the phone call, I don’t believe the lawyer had read the post in question as he kept referring to “blog postings.”   I urged him to read the post and explain to me where I had been defamatory.   I reminded him that truth is always a defense to defamation.

Defamation is a part of the law with which I am intimately familiar and I have written a series of posts on the topic here at DA (because we’ve been the target of these threats before).

I relayed to RRP’s attorney that I would not remove the post unless he could convince me I engaged in a legal wrong. As there is nothing defamatory in the post, I refused to take it down, gave my address, and told him I would await his correspondence.

I take all of these threats seriously and presume that this is the opening salvo to a lawsuit because we won’t be threatened or intimidated into not posting news related items about publishing houses by phone calls or letters from lawyers or others.

As much as I don’t want to engage in costly litigation, if I have to protect our right to exert our First Amendment rights of free speech, I will.

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In more disheartening news, Microsoft appears to be reentering the ebook market as a partner to the much talked about Blio software.   Microsoft owns the proprietary LIT format which has fallen out of favor amongst most mainstream publishers and retailers.   Blio is this much talked about ebook software that was conceived by visionary Ray Kurzweil.   Problematically, Blio has been in demo form for almost two years.   The ebook market needs another proprietary ebook format with yet another DRM like DA needs a lawsuit.

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The Ninth Circuit has struck a blow to the First Sale theory arguing that if a product is sold that   (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions, that sale is a license rather than a transfer of ownership.   The Vernor v. Autodesk case involved the use of physical discs being resold on eBay rather than digital media.   This is a huge blow to the First Sale right.

Another blogger suggests that the FTC require correct labeling of ebooks so that consumers will be fully apprised that what they are buying is a license to use a book during an indeterminate time.   Of course, once this fully penetrates the consumer public consciousness, prices for leased goods will likely drop dramatically.

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In the plagiarism and publishing news, Tony Blair is accused of lifting text from a fictionalized version of his life in his recent memoir.   Author Frank Owen, author of Clubland (a book about the club culture) has sued writer Gerald Posner for copyright infringement.   Posner was found to have plagiarized for his writings at the Daily Beast.   Simon & Schuster, Posner’s publisher, has apparently done an internal investigation but has not released the findings of that internal investigation.

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Ever since iBooks rolled out in April, I’ve had my doubts about Apple’s commitment to its ebook program.   Let’s face it.   Jobs himself says no one reads anymore and the current iBookstore is doing nothing to belay that belief.   To date, Nate the Great over at digital reader, counts only 33,000 books in the iBookstore.

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Rose Fox, editor of the new romance section for Publishers’ Weekly tweeted a picture of the new look:

PW Romance****

Amazon Kindle will be sold in Best Buy stores right along side the nook.   I think this is great for consumers because they will be able to compare the devices right next to each other.   I also hope that Best Buy continues to carry the Sony Readers.

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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

54 Comments

  1. Annmarie
    Sep 11, 2010 @ 10:06:43

    I find it unfathomable that someone would call to threaten w/a C&D without having researched/read the item in question.

    I wonder if the ‘lawyer’ is an actual lawyer or RRP’s 2nd cousin’s brother-in-law’s nephew.

    ReplyReply

  2. Jeanette
    Sep 11, 2010 @ 10:09:36

    Oh my!

    I find it interesting that Ms. Felter feels that her character was defamed considering she was the person who provided the words/letter/rant to the RRP authors.

    Very interesting indeed…

    ReplyReply

  3. Jeanette
    Sep 11, 2010 @ 10:13:54

    @Annmarie: LOL! Good point!

    ReplyReply

  4. joanne
    Sep 11, 2010 @ 10:35:29

    What an unfortunate time suck a lawsuit will be especially if the attorney representing RRP has to be spoon-fed the laws regarding defamation– by the plaintiff.

    On another note and not-for-nothin’ I like Utica. It was the home of the first public mental hospital in New York State

    ReplyReply

  5. Nadia Lee
    Sep 11, 2010 @ 10:35:55

    @Jeanette: LOL.

    ReplyReply

  6. joanne
    Sep 11, 2010 @ 10:38:31

    @joanne: arg.. should be defendant not plaintiff. I really miss being able edit up my lack of posting skills.

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  7. Courtney Milan
    Sep 11, 2010 @ 10:54:49

    My guess is that the attorney also needs to be spoonfed the relevant law on what speech Jane can be held accountable for. My guess is that this guy has absolutely zero knowledge of internet law and is totally unaware of 47 USC § 230(c)(1):

    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.

    The fact that he’s using the plural “blog postings” suggests to me that he doesn’t really understand how a blog works and also does not understand that most of the comments made were not made by Jane, and that she’s legally not liable for other people’s speech, notwithstanding that it appears on her blog.

    Bet dollars to donuts that RRP gave the lawyer a few choice quotes from the comments, things like “She gave me a computer virus!” which, I guess, is the ultra-modern edition of the loathsome disease defamation-on-its-face-if-false claim. The lawyer, not knowing the relevant law either on defamation or internet speech, picked up the phone.

    Some of the allegations made by commenters in that post, if false, might be actionable. But nothing by Jane.

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  8. Ridley
    Sep 11, 2010 @ 11:20:52

    I have a hard time believing RRP has the money to actually sue. Lawyers aren’t free.

    ReplyReply

  9. Faye Hughes
    Sep 11, 2010 @ 11:46:00

    This is like a whole can of Planters. Personally, I think it’s just scare tactics on the part of RRP.

    Stand strong, Jane!

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  10. joanna bourne
    Sep 11, 2010 @ 11:55:30

    Well, that sucks.

    The lawyer does sound like somebody’s cousin, rather than a professional in the field. I would assume he’s not expecting to get paid. IANAL, but I seem to recall the lookback period in bankruptcy is a year for ‘insiders’.

    ReplyReply

  11. katiebabs
    Sep 11, 2010 @ 12:12:34

    If you’re stating facts, how are you defaming them?

    Does that mean everyone who commented in the post will received these letters also?

    ReplyReply

  12. meoskop
    Sep 11, 2010 @ 12:16:26

    If they launch I suppose you can counter for legal fees. But it seems like a tremendous waste of time and I think it may fall more into the “I’ll make a phone call for you and see what I can do” category instead of the drawn out lawsuit category. You never know.

    Hm. What would the DA Legal Defense Fund Auction look like? That could be entertaining.

    ReplyReply

  13. Victoria Strauss
    Sep 11, 2010 @ 12:22:54

    For me, the biggest surprise is that RRP has an attorney at all. If in fact it does. I agree this guy sounds like someone’s relative–that comment about “laypeople” strikes me as pretty un-lawyerly.

    Less-than-professional publishers tend to overestimate the intimidation factor of unfounded legal threats–that is, when they aren’t dealing with their own inexperienced clientele.

    ReplyReply

  14. Sunita
    Sep 11, 2010 @ 12:53:51

    Thanks for the clarification on the 9th decision, Jane. This seems to run counter to the LoC statement on end-user’s right to shift formats, not to mention the earlier decision by the 5th.

    It will be entertaining to watch Apple, Amazon, etc. try to decide between the lower prices people will pay for licensed products vs. higher prices but the reduced restrictions ownership implies.

    Re: the lawsuit, I’m thinking this lawyer-dude is the defamation-suit equivalent of an ambulance chaser,if he’s not related to RRP.

    ReplyReply

  15. SonomaLass
    Sep 11, 2010 @ 13:20:00

    Of course you are totally in the right here, Jane. Thanks for standing up for your rights, and by extension our as well, even when it gets to be a PITA.

    ReplyReply

  16. Victoria Dahl
    Sep 11, 2010 @ 13:24:39

    And don’t forget that “licensing” of work involves a completely different pay scale for the artist. Royalties are paid based on “copies sold.” I’m not a lawyer, but my understanding is that this ruling would also significantly change how publishers & music companies would have to pay out, & not necessarily in the companies’ favor. My point being that if this ruling stands, it could potentially lead to fewer restrictions on use if those restrictions negatively affect the bottom line. But I say that in the hopes of finding out what you legal folk think.

    ReplyReply

  17. Victoria Dahl
    Sep 11, 2010 @ 13:37:52

    And I wish I could take out some of those quotation marks, but I’ve never figured out how to arrow up in a text box on my iPhone. Intelligence fail, I has it.

    ReplyReply

  18. library addict
    Sep 11, 2010 @ 13:45:07

    Most of my ebooks are in the LIT format, so I wouldn’t mind have an ereader that I could use them on. But I want the format wars to be over and a standard format, without DRM, that can be read on any device more.

    ReplyReply

  19. Michelle
    Sep 11, 2010 @ 14:28:35

    I am sorry you are going through this. Can you look of the lawyers name or firm to see if he is legitimate? Does sound like he is maybe a family member or friend. If she can’t pay her authors how can she afford legal fees? Good luck.

    ReplyReply

  20. Melisse Aires
    Sep 11, 2010 @ 14:33:26

    My RRP books are beginning to disappear from 3rd Party sites.

    Neither are on Fictionwise now. Once is missing from Amazon. One is missing from ARe. I posted a screenshot of my tracking page from Novel rank on my blog–shows the two RRP books. If you search Shadow Rescue on Kindle it’s gone.

    I’m blocked from both author’s loops, too, and have had no answers to emails.

    Is this the RRP way of reverting my rights back to me? Is it retaliation? Is it all a horrible mistake, spread over three different 3rd party bookstores, and only with my RRP books??

    ReplyReply

  21. Mireya
    Sep 11, 2010 @ 14:49:47

    Anyone can hire an attorney (via “retainer”).

    Jane, if this blows even further out of proportion, and you need anything, please let us know.

    ReplyReply

  22. Taryn Kincaid
    Sep 11, 2010 @ 15:14:09

    I see nothing remotely defamatory here. Aside from truth being an absolute defense, it appears RRP is, arguably, at least a limited public figure at this point, requiring proof of actual malice, as well, for the plaintiff to prevail. Are they not even a little bit aware that the further they pursue this the more adverse publicity they’ll generate? Counter-intuitive in the extreme. Likely they believed their toothless threat would be sufficient.

    ReplyReply

  23. Angela
    Sep 11, 2010 @ 15:19:58

    Jane, just wanted to add my appreciation/respect to your decision to stand firm in regards to the post and lawyer call. Scare tactics like that can’t be succumbed to.

    (Also the link to your defamation posts on DA isn’t working for me…is it just me?)

    ReplyReply

  24. Jody
    Sep 11, 2010 @ 15:34:01

    Jane, you go girl! What a lame and pathetic threat. Thank you for standing up to bullies and keeping us informed.

    I’ll be happy to make a donation for your defense should the necessity arise.

    ReplyReply

  25. Courtney Milan
    Sep 11, 2010 @ 16:12:46

    @Victoria Dahl:

    my understanding is that this ruling would also significantly change how publishers & music companies would have to pay out, & not necessarily in the companies' favor.

    I don’t think so. The question of whether something is a license or sale here was a question of whether it was a license or a sale for purposes of applying the first sale doctrine.

    The question of what royalty category e-sales fall into is going to a question of contract interpretation, which depends not on what legally counts as a license or a sale, but what the author and publisher had anticipated counting as a sale.

    So the definition of a “copy” for copyright purposes doesn’t necessarily need to track the definition of “copy” for contract purposes.

    ReplyReply

  26. Victoria Dahl
    Sep 11, 2010 @ 16:38:05

    Oh, sheesh. That’s what I get for skimming. I was thinking of ANOTHER Ninth Circuit circuit ruling on license vs sale. http://bit.ly/c2HpCD

    ReplyReply

  27. DA
    Sep 11, 2010 @ 16:52:55

    Finally some facts. Stand up for your right to post as you please, Jane.

    You have no problems responding to comments or questions and are willing to back up your words.

    Much appreciated.

    ReplyReply

  28. Sunita
    Sep 11, 2010 @ 17:11:25

    @Victoria Dahl: Ha, I did the same thing! Our excuse is that who expects the 9th to issue multiple such decisions in the space of days? And they *do* both bear on licensing v. ownership issues.

    On Vernor v. Autodesk, though, to what extent is this ruling limited to software, which has always been argued to be a license? And it will be interesting to see what the full panel says.

    ReplyReply

  29. Keziah Hill
    Sep 11, 2010 @ 18:14:45

    IBooks aren’t even available in Australia. You can get out of copyright classics but nothing else. Many people bought ipads thinking they’d have access to iBooks only to be very disappointed.

    ReplyReply

  30. Mike Briggs
    Sep 11, 2010 @ 18:25:00

    Jane:
    Having some bozo threaten a lawsuit over a factual posting is absurd. Of course, in America, companies have a long history of using bogus lawsuits to silence opposition. Even a frivolous lawsuit can cost thousands to defend against, and while Barratry is technically itself a crime, those laws are effectively toothless. So, there’s nothing much to impede a nasty company from launching idiotic lawsuits left and right as long as they can afford the lawyer to do it. Grrr.

    Suffice it to say I find this situation completely unacceptable. If it’s more than just a desperate shot across your bows, we’ll be happy to do whatever we can to help out.

    ReplyReply

  31. Courtney Milan
    Sep 11, 2010 @ 18:28:15

    @Victoria Dahl: Ha! I skimmed, too, and saw First Sale, Ninth Circuit…

    First, I think the Autodesk decision is really only relevant to e-versions of books, which are crabbed about with licenses (to the extent that they actually, y’know, are–I’m convinced that some of the postsale disclaimers I’ve read aren’t effective). And what I’ve said before still matters: in terms of what royalty rate applies, the definition of what counts as a copy will probably be determined by what the contracting parties thought a copy would be, and not by how the copy/license distinction plays out in terms of the first sale doctrine.

    And second…okay, I just deleted about 12 paragraphs (sadly am not joking) of legal wankery about the decision, now that I’ve read it.

    Summary: It’s stupid, it’s wrong, and it may create a circuit split.

    ReplyReply

  32. DS
    Sep 11, 2010 @ 18:39:33

    Does either Illinois or New York have Anti-SLAPP statutes? I’ve been shuffling paper all day and I’m too tired to google.

    ReplyReply

  33. Jennifer Armintrout
    Sep 11, 2010 @ 19:03:01

    I guess we know who “Not Impressed” was in the comments on that post, then.

    ReplyReply

  34. Ell
    Sep 11, 2010 @ 19:13:16

    Jane: Wonder if they’d have sent what they did had they realized you’re not a “layperson”.

    library addict: I have over 600 .lit files (iPaq) and used Calibre (GREAT eReader software, funded by donations) to convert to epub (just got a Kobo). It failed on maybe 12 files. Not bad!

    ReplyReply

  35. Michelle
    Sep 11, 2010 @ 19:52:02

    Yeah I’ll be really surprised if this is a real lawyer. My mom works with them on a daily basis and doesn’t know a single one who’d bother with a phone call like this. They’d send letters. Adding my support regardless, I’m sure everything will be fine in the end.

    ReplyReply

  36. Mari LaCroix
    Sep 11, 2010 @ 20:39:58

    Oh good grief…

    Another lawyer threat. Amazing. How many does that make from RRP towards their authors who asked for their rights back…and now Dear Author?

    ReplyReply

  37. Isobel Carr
    Sep 11, 2010 @ 20:56:13

    A lot of people have lawyers in their immediate circle . . . lawyers who may not be all that familiar with the laws pertaining to the complaint, but who are happy to write a C&D as a favor. *rolls eyes*

    ReplyReply

  38. library addict
    Sep 11, 2010 @ 21:16:55

    @Ell: Yeah, I love Calibre! Ironically, I used it to convert some of my ebooks into LIT format.

    Not at all surprised I picked the wrong horse to back in the DRM “fight.” My first VCR was a beta way back in the day. Even if I had to do it over again, not sure I wouldn’t still pick LIT. I like the program/format the most for reading on my PC and ancient laptop. I don’t yet have an ereader or smartphone.

    Jane, the link to the “…series of posts on the topic..” isn’t working for me either.

    ReplyReply

  39. Merrian
    Sep 11, 2010 @ 21:27:46

    I really value the work of ‘Dear Author’ and the commitment Jane makes to romance and her readers. So I am very sorry that aggravations that invade real life come with the territory. I am also happy to contribute to any defence fund needed.

    ReplyReply

  40. Marteeka
    Sep 11, 2010 @ 22:01:03

    @Melisse Aires: *hugs* to you Melisse!! I feel your pain. but look on the bright side. Once your contract either expires or is terminated (which if the books are down from all sites, that would seem a breach of contract and thus revert your rights)you should have little trouble finding another publisher because everyone will be pretty sure very few people bought the book since the publisher refused to put it up for sale. Nothing says *eff you* like great sales with another publisher. :D Laugh all the way to the bank, honey!

    ReplyReply

  41. Melisse Aires
    Sep 11, 2010 @ 22:30:24

    @Marteeka

    Thanks. I’m working on submissions right now.

    ReplyReply

  42. RRose Author
    Sep 12, 2010 @ 00:19:42

    Does anyone else have a contract for RR that doesn’t have the publisher being in NY? Does it matter if a different state is on the contract?

    ReplyReply

  43. Moira
    Sep 12, 2010 @ 02:09:46

    Happy to add to any defense fund.

    ReplyReply

  44. Courtney Milan
    Sep 12, 2010 @ 02:53:26

    I just want to issue a cautionary note.

    I’ve seen people say several times that action X counts as a breach of a contract, meaning your rights automatically revert.

    Please, please, please, before you act on statements like this, consult an attorney. Not all breaches are substantial enough to allow you to walk away from a contract, and the consequences if you walk first aren’t always a good thing. The person you need to talk to before walking out on a contract is a lawyer.

    I know that sucks. I’m sorry.

    ReplyReply

  45. Jane
    Sep 12, 2010 @ 08:17:43

    The generosity and support from the people here are amazing and I can’t tell you how much I appreciate it. Probably and hopefully we will never get to the litigation stage. And I’ve fixed the link. I hope.

    ReplyReply

  46. Julie James
    Sep 12, 2010 @ 10:06:30

    It will be interesting to see if he actually sends a letter after your conversation. Also interesting that he described it as what “’laypeople may call a cease and desist’ letter”–not an actual C&D letter.

    I haven’t read the statute, and maybe this was covered in the comments above (sorry–I’m posting while trying to get my three year-old to eat breakfast), but I wonder if there some provision that allows a person to file a claim if the lawyer sends a C&D letter when the threat is improper?

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  47. rrp author
    Sep 12, 2010 @ 10:20:05

    The RRP NDA say that authors may not discuss RRP in a negative way on blogs, forums etc. It is pretty broad.

    ReplyReply

  48. Jane
    Sep 12, 2010 @ 10:26:00

    @juliejames I actually brought up the ethical isse of the c&d on the phone which led to a short disagreement about who would be more unethical -him for sending the baseless letter or me for reporting him to the Bar. I guess the legal version of “I know I am but what are you.”

    I think the course of action would be to countersue for defamation and seek section 11 sanctions in the form of attorneys’ fees and costs.

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  49. Confused
    Sep 12, 2010 @ 12:02:31

    I don’t understand how Ms Felter thinks sending cease and desist letters helps her reputation?

    I would think the common sense thing to do at this point would be to revert contracts of unhappy authors, address in-house problems, look at how publishers with good reputations are doing business and start making changes.

    After a while, with no more unhappiness smeared all over the internet, she could regain her rep.

    ReplyReply

  50. Marteeka
    Sep 12, 2010 @ 12:50:22

    @Courtney Milan: OF COURSE! don’t take anything for granted. Seek professional help from a qualified professional before you try to act on anything like that. i should have added that to my post. i’m sorry.

    ReplyReply

  51. Annmarie
    Sep 12, 2010 @ 16:56:43

    @Jane: Is it wrong for me to be chanting “do it Jane do it Jane do it Jane do it Jane”?

    Cause I’d like to see you DO IT JANE!

    (When people threaten me w/lawsuits over baseless crap that we both know is baseless & going NO further than the threat, I wish I could follow the course of action Jane described in comment #48.)

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  52. Shiloh Walker
    Sep 13, 2010 @ 08:38:54

    Eh, somehow I don’t see any actual lawsuit coming from this. Assuming the guy was actually a lawyer-there is really no grounds for a lawsuit.

    Peoples just love to throw around that “I’ll sue your ass…”

    It’s not so effective with the person they are threatening is a lawyer, though…

    ReplyReply

  53. MaryK
    Sep 13, 2010 @ 13:09:44

    The lawsuit threat is pretty crappy and terrible if it actually happens and wastes DA time and money. I have to confess, though, to a huge amount of glee at somebody trying to intimidate a blogger and coming up against somebody who knows. So, yay for failed bullying and boo for frivolous lawsuits.

    ReplyReply

  54. Stumbling Over Chaos :: Drip drip drop, little linkity showers…
    Sep 17, 2010 @ 07:08:39

    [...] linkity: Dear Author and the ReadReactReview Monday [...]

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