When I last mentioned erotica e-book publisher Ellora’s Cave, in the context of discussing a Guardian story about the popularity of erotica e-books, some commenters remarked on the lack of mention of the ongoing lawsuit between Ellora’s Cave and romance blog Dear Author. I hadn’t brought it up because I hadn’t been aware of any new developments in the 11-month-old suit, and it didn’t seem germane to the general topic of the popularity of e-rotica in general.
However, Courtney Milan has just blogged about some new developments, so it seems like a good time to take another look at said case.
We posted an overview in September, 2014 when the case was filed. There had been some public controversy about Ellora’s Cave at the time, with a number of authors alleging irregularities in their royalty payments. Jane Litte of Dear Author wrote a lengthy, detailed blog post reporting on these claims, and for her troubles, Ellora’s Cave filed suit against her for defamation.
According to Milan, the case is undergoing discovery—the phase when lawyers for each side get to subpoena evidence from the other. Ellora’s Cave has completed its half, and according to the schedule, Dear Author should be filing a summary judgment motion sometime soon.
What’s the new development? One of Ellora’s Cave’s authors, Ann Jacobs, has filed a motion seeking to intervene. (Courtney Milan links to PDFs of both the motion and a counterclaim.) Essentially, Jacobs says that Ellora’s Cave hasn’t been paying her proper royalties, and since the whole fight with Dear Author is over claims that Ellora’s Cave hasn’t been paying proper royalties, she wants her case to be considered in conjunction with the Dear Author one.
At issue is whether Jacobs’s royalties were supposed to be based on the cover price or on the sale price if the books were marked down. Jacobs insists that her contract required they be based on cover price. She states that when she brought this up, Ellora’s Cave attempted to change the contract unilaterally to base royalties on sale price. According to Jacobs’s claim, that kind of change is not permitted under the contract without a signed agreement between Ellora’s Cave and Jacobs herself.
Milan notes that she is not an expert in this particular field of law, so she could be mistaken, but she deems it unlikely the judge will permit the intervention. The appropriate time to have filed it would have been right after the case was filed, not 11 months later as discovery is wrapping up. She writes:
Filing this claim as a motion to intervene was probably not the way to maximize the chances of success. If I had to guess, and this is purely a guess, I would say that this is an exercise in saber rattling. This is the saber I hear being rattled: Revert my titles, now, or you’ll spend well into the six figure mark defending your existence.
There are hints in the filing that Jacobs could be aiming for a class-action suit on behalf of all the authors Ellora’s Cave has allegedly underpaid, which could end up being a big headache for the publisher if it should come to pass.
So, that seems to be the current state of things in the Ellora’s Cave litigation. It should be interesting to see if anything more comes of this.