The Blog of a Historical Romance Author

RT giveaways!

May 6th, 2013

I dropped by the RT convention in Kansas City this last weekend to see some friends, get an award, and talk to people–and I had a great time! I hadn’t actually planned on going at all, and because I decided to show up so late, it was too late to get books in for the book signing. So, instead, I wandered around the signing and talked to people who I had missed in the halls. It was so much fun!

While I was there, I got some books signed from some newer historical romance authors to give away to readers of my blog.

Erin Knightley’s A Taste for Scandal: A baker heroine meets an Earl, and gives him a taste of something sweeter than he’s ever had before.

Juliana Gray’s A Lady Never Lies: An inventor set on perfecting a horseless carriage meets a lovely widow.

Jennifer McQuiston’s What Happens in Scotland: The hero and heroine wake up married, and have to figure out how they got there and where they’re going next.

Heather Snow’s Sweet Enemy: A chemist heroine discovers chemistry of her own with the Earl of Stratford, a war hero.

Samantha Grace’s Lady Vivian Defies a Duke: A hellion shows a duke how and where to find love.

Tracy Brogan’s Highland Surrender: A Highland beauty is commanded to marry her sworn enemy.

If you’d like to win one of these, please leave a note in the comments.

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Digital Strategy in Historical Romance

April 25th, 2013

If you think that a publisher’s main job is distribution, and that distribution is a button press on the internet, you’re wrong, and I hope to demonstrate that today with some vague (yet convincing!) handwaving.

I don’t intend this post to be one about the merits of self-publishing versus traditional publishing, but instead to be about the merits of having a digital strategy versus not having a digital strategy.

A little over a month ago, Publisher’s Weekly released a list of the bestselling ebooks of 2012. They used words like “jaw-dropping” to describe the numbers that are being racked up. I thought there was something jaw-dropping about that list, especially when you perused the historical romance offerings, and it wasn’t the numbers on the list.

I went through and I pulled out all the numbers for historical romance authors. I did that because that’s my genre. It’s not the hottest romance genre at the moment, so there aren’t a lot of authors racking up numbers in it, but it does sell steadily and respectably. Here’s handwaving, part I: I had to rely on my own name/title recognition to determine if a title was a historical romance, and I’m not perfect; and also, these numbers are self-reported by the publishers, so there may be errors or titles that were not included. Nonetheless, I did see representation on the list overall for all the romance houses (with the exception of Kensington), so my assumption going in is that this is a pretty decent list of NY-published books.

Here are the historical romances I pulled out, with digital sales numbers attached.

A Night Like This, Julia Quinn (Avon) 66,192
The Ugly Duchess, Eloisa James (Avon) 59,333
The Capture of the Earl of Glencrae, Stephanie Laurens (Avon) 55,093
The Duke is Mine, Eloisa James (Avon) 47,983
Sins of a Wicked Duke, Sophie Jordan (Avon) 46,687
A Week to be Wicked, Tessa Dare (Avon) 44,792
A Rogue by any Other Name, Sarah Maclean (Avon) 44,380
A Kiss at Midnight, Eloisa James (Avon) 42,624
Winning the Wallflower, Eloisa James (Avon Impulse) 40,954
Never Seduce a Scot, Maya Banks (Ballantine) ~38,600
Seduced by a Pirate, Eloisa James (Avon Impulse) 34,516
A Lady Never Surrenders, Sabrina Jeffries (Pocket) 34,290
The Seduction of Sebastian Trantor, Stephanie Laurens (Avon Impulse) 31,027
Never Love a Highlander, Maya Banks (Ballantine) ~30,200
The Lady Risks All, Stephanie Laurens (Avon) 29,100
Seduction of a Highlander, Maya Banks (Ballantine) ~28,400
The Fall of Rogue Gerrard, Stephanie Laurens (Avon Impulse) 26,466
How the Marquess was Won, Julie Anne Long (Avon) 25,980
The Duke and I, Julia Quinn (Avon) 25,640
Devil’s Bride, Stephanie Laurens (Avon) 25,229

I bolded the outliers so you could see the pattern.

Avon has always been a force to be reckoned with in historical romance, so maybe this shouldn’t be a surprise to anyone, but cripes, that’s just embarrassing. Pocket has one book on the list. Ballantine has three, but they’re all from the same author (and she’s a massive force to be reckoned with–her non-historical romances sold even better). And there are imprints that are simply not registering on the historical romance radar–St. Martins, Berkeley, HQN, Mira, Grand Central.

Has it always been like this? To find out, I performed Handwaving part II. Which is to say, I went through USA Today’s top 100 list (Why the top 100? Because I’m too lazy to do 150) from February 2010 to August 2010–that is, in the times when digital was selling in much smaller amounts–and made a list of all the historical romances that hit the list at that level. Again, this relies on my ability to recognize historical romances when I see them, so there’s the potential for human error.

Here’s that list (no particular order, since I don’t know what being #18 on the list in one week means in comparison with being #13 in another week):

The Truth About Lord Stoneville, Sabrina Jeffries, Pocket
The Elusive Bride, Stephanie Laurens, Avon
Taming the Highland Bride, Lynsay Sands, Avon
Ravishing in Red, Madeline Hunter, Jove
Nicole Jordan, To Tame a Dangerous Lord, Ballantine
Dark Angel & Lord Carew’s Bride, Mary Balogh, Dell
The Hellion and the Highlander, Lynsay Sands, Avon
Provocative in Pearls, Madeline Hunter, Jove
The Marriage Ring, Cathy Maxwell, Avon
An Impossible Attraction, Brenda Joyce, HQN
In Bed with the Duke, Christina Dodd, Signet
Monica McCarty, The Chief, Ballantine
Amanda Quick, The Perfect Poison, Jove
Victoria Alexander, Desires of a Perfect Lady, Avon
Sarah MacLean, Nine Rules to Break When Romancing a Rake, Avon
The Secret Duke, Jo Beverly, Signet
Johanna Lindsey, Rogue of my Own, Pocket
Seducing an Angel, Mary Balogh, Dell
Rule’s Bride, Kat Martin, Mira
A Lady’s Guide to Improper Behavior, Suzanne Enoch, Avon
Never Less Than a Lady, Mary Jo Putney, Zebra
A Lady Never Tells Lies, Candace Camp, Pocket
Hannah Howell, Kentucky Bride, Zebra
A Secret Affair, Mary Balogh, Dell
Married by Morning, Lisa Kleypas, St. Martins
Ten Things I Love About You, Julia Quinn, Avon
A Gentleman Always Remembers, Candace Camp, Pocket Star
If He’s Wild, Hannah Howell, Zebra
Johanna Lindsey, That Perfect Someone, Gallery
Jane Feather, Rushed to the Alter, Pocket
Lisa Kleypas, Love in the Afternoon, St. Martins
Stephanie Laurens, The Brazen Bride, Avon
My Dangerous Duke, Gaelen Foley, Avon
Jude Deveraux, Days of Gold, Pocket Star
Eloisa James, A Kiss at Midnight, Avon
Loretta Chase, Last Night’s Scandal, Avon

Avon was still doing well in 2010–they have 33% of the historical romances on the list–but two years ago, they weren’t ridiculously dominant. Now, like I said, this is handwaving. So ignore the 33% number–numbers here are vague notions, and highly error prone. Let’s just concentrate on the general trend.

Which is that Avon is kicking everyone’s ass today, and they weren’t two years ago.

So…what on earth is going on? Here are a few obvious things to consider.

The top authors on the list of digital bestsellers are Julia Quinn, Eloisa James, and Stephanie Laurens. All three of those authors have books on that list of bestselling digital titles of 2012 that were not published in 2012. Specifically, Julia Quinn has “The Duke and I,” which is the first book in her Bridgerton series. Eloisa James has “A Kiss at Midnight,” the first book in her Fairy Tales series on the list. And Stephanie Laurens has “Devil’s Bride” on the list, which is the start of her Cynster series. In other words, Avon is not just trying to push the author’s latest release–they’re pushing the author’s latest release by bringing in new readers with older books that are tried and true.

Both Eloisa James and Stephanie Laurens have multiple Avon Impulse titles on the list–novellas that came in at low price points and allowed readers to try a new author at a low price and a lower investment of time. I didn’t see low-priced novellas from other houses until near the end of 2012, and by that time, the 99 cent novella was so commonplace that it wasn’t selling in significantly greater numbers than other books.

Not insignificantly, Avon was one of the few major NY houses in 2012 that was publishing historical romance and experimenting with pricing strategy.

Finally, Avon developed a method for getting the word out about changes in pricing strategy–they didn’t just drop the price and expect people to notice.

All of this comes down to one thing: if you think that all publishers do in digital is press a button for distribution… Well, for some books, it certainly looks like you’re right. But a publisher that thinks about publishing as a strategy rather than a button, a publisher that uses an author’s entire output to move books will do much, much better. Dominantly better.

When the rewards are somewhat evenly distributed among publishers in 2010 and are sharply skewed come 2012, it’s not the individual authors that are at fault.

Publishers other than Avon: What the heck are you going to do about this? Because you just got schooled, and that’s embarrassing.

As a note: I suspect that some people at those publishing houses, if they saw this, would say, “We have a digital strategy, but we just choose not to employ it for all our authors–just for the super-duper awesomely important ones, the ones that are major events, and an author who just barely nicks the New York Times List is not on our register.” That may be true, but if it is…why would any of those authors bother with you for their next contract?

As a final note: I’m aware that there are a lot of books that are not on this list that sold over the requisite amount. We’ve got nothing from Montlake, and I’m darned certain that Montlake has a handful of historical romances that have easily oversold not only the 25K mark, but the 66K mark that represents the top of the charts. We’ve got nothing from self-publishers, and I know from personal experience that there are self-published books that would land on the charts. I’m not sure Kensington or Sourcebooks reported. So these numbers are limited. Nonetheless, it’s pretty clear to me that employing a digital strategy on behalf of your authors kicks the pants off of having no apparent digital strategy.

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For Golden Heart Finalists

April 8th, 2013

The Golden Network has asked me to give a talk on self-publishing to their members at RWA nationals. I’m trying to make that talk as informative and open (and as non-judgey) as possible. I want to compile some data about how Golden Heart finalists who have self-published have fared.

There are a few reasons to think that Golden Heart finalists might do differently than the average self-publisher. First, the contest is very competitive, and so people who final in the Golden Heart are usually at a high level of craft. Second, Golden Heart classes often form e-mail loops, where people are willing to talk business, and so they often have access to people with advice and knowledge.
I want to see if these two factors will have an impact on earnings.

If you answer these questions, I promise that I will not reveal your personal data or your sales to anyone. With the exception of question 7, any data I receive will be revealed only in the aggregate. (Please only answer question 7 if you’re willing to have that answer shared with a group.)

Indie Survey for Golden Heart finalists
Please return via e-mail to
1. What year(s) were you a Golden Heart finalist?
2. What categor(y|ies) did you final in?
3. How many times have you finaled in the Golden Heart?

4. Are you traditionally published?

4a. – If so, how many books have you traditionally published?

5. Are you indie published?
5a.  – If so, how many books have you indie published?
6. For each indie published book:
6a. How many copies have you sold of that book?
6b. How much money have you made on that book?

7. Is there any advice you’d like to give to Golden Heart finalists who haven’t published a book yet?

For those of you who are on a loop with your fellow Golden Heart finalists: Please feel free to copy & paste this and forward it to your GH class (assuming that nobody has done so yet).
Thank you all so much for your time and patience. In addition to presenting this data to the Golden Network, I will also present it on my blog.

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After approximately four years…

March 31st, 2013

I have finally updated the look and feel of my blog to complement (although not match) the rest of my website.

(The “complementing, but not matching” part was a decision I made many years ago: that I wanted to clearly delineate between my website [which is wholly commercial in the sense that it's basically all about my books and writing] and my blog [which is sometimes about things that are not even remotely related to stuff that I am selling]. I haven’t revisited that decision since. When I first started the blog/website, I didn’t have Facebook, Twitter, or Tumblr. Obviously that line has been blurred and then smashed and then reconstituted and mixed in with the mashed potatoes. I’m still contemplating what it means–for instance, I haven’t even linked to my Tumblr site from this website yet, for the simple reason that my Tumblr site is almost never about my books.)

(Suffice it to say, I use different social media platforms in vastly different ways.)

(I am not sure if this is good or bad.)

(But I do think that I could make a record for the most parenthetical comments in one blog post [or failing that, for the most nested parenthetical comments in a single post <how am I doing?>].)

I am also testing to see if the blog now properly updates Facebook/Twitter. It might not. Or maybe it will push this post twice. Let’s see what happens.

Edited to add: I’ve had a handful of people talking about some odd behavior here, and after checking rabidly and extensively on a variety of browsers and being utterly unable to duplicate the errors, I think I know what is causing the problem. I believe that some people have the old stylesheet still saved in cache, and so it’s causing some weird behaviors. Try reloading this page, or if that fails, clearing the cache from your browser and loading the page.

If that still doesn’t work, please let me know in comments.

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March 30th, 2013

Thank you all for voting for The Duchess War and The Governess Affair. You guys seriously rocked it out, and while Tammara Webber’s Easy won the day, you definitely didn’t lose. I’m pretty happy to have done as well as I did against Easy, which was a pretty damned amazing book. (If you haven’t read it, consider it!)

I know that I had promised you a deleted scene from The Duchess War if we advanced–but I never said you couldn’t have it if we didn’t.

And so with that caveat–and with many, many thanks for all your help–here it is.

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DABWAHA, redux

March 29th, 2013

So, The Duchess War went up against Tessa Dare’s A Lady by Midnight. The battle was hard-fought.

How hard fought was the battle? I will let the following screenshots speak for themselves.

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Sometimes The Duchess War was up. Sometimes A Lady by Midnight was up. Often, the two books were tied.

But at the end, alas….

Screen Shot 2013-03-29 at 4.53.04 PM

So there you are. We fought well, but we were bested at the last.

Luckily, The Governess Affair went up against Ruthie Knox’s Room at the Inn and managed to prevail.

This means, first of all, that I owe you all the first chapter from my first manuscript. I made one change to this manuscript–specifically, I did a find and replace on the hero’s name, because I’ve used that name on a book that I published (hey, I liked the name, and I borrowed characteristics from the hero for that other book) and I want to avoid confusion.

So here is Chapter One of Flight of Fancy. Read it and weep. Or something.

Secondly, this means that there still is an opportunity to vanquish Tessa (and many other fine writers!). But in order to do that, The Governess Affair must prevail against all comers.

I know that there were multiple people who were disappointed that they wouldn’t be able to read the lovely scene I promised detailing Minnie’s aunts giving her “the talk.” Many of them were, in fact, extremely disappointed, especially once I posted this tiny snippet (brings up a graphic: warning, not safe for work).

And so this scene is still available as a bribe. Defeat Tammara Webber’s Easy in tomorrow’s roundup, and it will be posted.

Voting will be open from midnight to noon, CST.

Remember, anything that has an IP address can vote–phones, iPads, computers at work, the library, every Starbucks.


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Winners, and DA BWAHA bribe post

March 26th, 2013

So, first of all, thank you all for voting both THE GOVERNESS AFFAIR and THE DUCHESS WAR into the Sweet Sixteen round of DA BWAHA. The other books out there are truly amazing, and it’s a huge honor to be chosen.

But in the next round, things are going to get real. THE DUCHESS WAR is up against Tessa Dare’s A LADY BY MIDNIGHT, and THE GOVERNESS AFFAIR is up against Ruthie Knox’s ROOM AT THE INN.

For those of you who haven’t surmised, Tessa Dare is a good friend of mine–a very good friend. So good that we room together every year at RWA Nationals. So good that she knows all my deepest, darkest secrets. (I know hers, too, but her deep, dark secrets are ridiculously adorable, and so I have no ammunition. None whatsoever.) Plus, A LADY BY MIDNIGHT is a ridiculously wonderful book.

Plus, Tessa is offering her fans bribes–she’s offering to write a scene where Colin teaches Thorne how to dance.

Well, two can play at that game. If THE DUCHESS WAR beats Tessa’s A LADY BY MIDNIGHT,  you will get a scene that I deleted from THE DUCHESS WAR–the scene where Minnie’s “maiden” *cough* aunts have “The Talk” with her just before her wedding. There was really no place for it in the book, and it got deleted before I even had what I called a first draft, but trust me, you want to read this scene.

Then there’s Ruthie Knox. I really, really like Ruthie’s books, and I really like Ruthie, too. Her books are amazing. She wrote the best scene involving hot sauce that I have ever read in any book. And ROOM AT THE INN is no slouch. It’s a reboot of “It’s a Wonderful Life,” and the heroine is the girl who gave a kidney to the hero’s mother. (And there is a lot of great sex. Did I mention the sex?)

Ruthie Knox is offering up bribes, too–scenes from her first unpublished manuscript. I looked at this and said, “Hey, I have an unpublished manuscript! Maybe I can use some of this as a bribe, too.” So I whipped out my copy of my first book and started reading.

It was so bad. It was so bad I started laughing, but not the good laughing. The kind where I was cry-laughing because it hurt. That manuscript was ridiculously, painfully bad.

Do you want to read the first chapter from Flight of Fancy, my (thankfully) unpublished manuscript? No, no you do not. Nonetheless, that is what you’ll get if we beat Ruthie Knox’s ROOM AT THE INN.

And finally, as promised, I’m picking winners from my last post:

Jill Shultz and Katrina T: winners of A LADY AWAKENED.

SarahA-B and Rhonda: winners of A GENTLEMAN UNDONE.


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DA BWAHA Thanks & More!

March 23rd, 2013

So it’s March, and that means that it’s time for the craziest contest of all–DA BWAHA, the contest with the unpronounceable acronym, essentially a March Madness for romance novels (and others that are romance-novel-esque).

I have not one, but two books in DA BWAHA–The Duchess War in the historical category, which was voted in by popular acclaim (thanks!), and The Governess Affair in the novella category. So far things have been going well–in the first two rounds of the historical category, The Duchess War managed to prevail over Cecilia Grant’s first two amazing books, A Lady Awakened–which features some of the best bad sex to be found in a romance novel, and I say that in the most complimentary fashion you can imagine, and A Gentleman Undone, which features an extremely complicated, difficult (my favorite kind!) of heroine, one where another author might have thought of pulling her punches, but Cecilia Grant just shrugged and took her to her complicated, difficult, extreme. The result is extraordinary.

In any event, I’m really humbled to have been chosen over these books–but I think that maybe more people need to read them and discover how awesome they are. So in the spirit of giving away books, I’m going to be giving away 5 copies of each of these–two of each on this blog, and three of each on twitter.

To enter the giveaway on this blog, leave a comment with your name. If you have a preference for which book you want (maybe you read one but not  the other), say so, too. Do so by Sunday night at midnight, and I’ll pick winners Monday monrning.

For the twitter giveaway: You do have to follow me on twitter to win those, so just watch out at over the rest of this weekend.

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Kirtsaeng v. John Wiley & Sons, and the death of geographic rights in fiction

March 19th, 2013

Today, the Supreme Court issued its opinion in Kirtsaeng v. John Wiley & Sons.

A little background on the case:

Supap Kirtsaeng was a student who came to the U.S. from his native Thailand to study. He noticed, while he was here, that textbooks in the US were substantially more expensive than those same textbooks abroad. Being an enterprising young student, he started his own import business. He had friends and family send him textbooks from home, which he then resold for a profit here.

He thus came to the attention of John Wiley, a publisher of textbooks. They wanted him to stop, for obvious reasons: they didn’t want people in the U.S. buying low-cost books from Thailand when their alternative was to buy high-priced textbooks from the U.S. Even though Wiley was making money on both sales, they wanted to make more money.

What’s a textbook publisher to do?

If you buy a textbook, you’re allowed to resell it, and there’s actually a pretty strong aftermarket for used textbooks in this country. That’s because we have a “right of first sale” in this country. If you’re the copyright holder, you get to control the first sale of your copyrighted article–and only the first sale. There’s nothing that Wiley could do to stop legitimate sales of used books.

Instead, they had to argue that the sales weren’t legitimate. They did that by engaging in legal nitpickery. The right of first sale is enshrined in Section 109 of the Copyright Act, which says: “[T]he owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” Read that a couple of times; it basically says, “If you legitimately sold someone a copy, they have the right to resell it.” (Note that it’s broader than that, but that reading will do for now.)

Except it doesn’t quite say, “if you legitimately sold someone a copy.” It says that the right of first sale applies to copies “lawfully made under this title,” and this case turns on exactly what is meant by those five little words.

Wiley argued–and publishers have actually made this argument for years–that “lawfully made under this title” means “lawfully made, and covered by US copyright law.” The books made in Thailand were not covered by US copyright law–they were covered by Thai copyright law–and therefore, Wiley argued, the right of first sale did not apply to those books.

The Supreme Court said: No. That is bunk.

Actually, this is what the Supreme Court said:

[The words "lawfully made in accordance with this title"] mean made “in accordance with” or “in compliance with” the Copyright Act. In that case, §109(a)’s “first sale” doctrine would apply to copyrighted works as long as their manu­facture met the requirements of American copyright law. In particular, the doctrine would apply where, as here, copies are manufactured abroad with the permission of the copyright owner.

Here’s a translation, for those who want it: You are allowed to import books from abroad, in any quantity you wish, so long as the copies manufactured abroad are manufactured with the permission of the copyright owner.

What follows from here is not legal advice, just prognostication.

I sincerely doubt this decision will have almost zero effect in the future on John Wiley, textbook maker. What Wiley will have to do now is differentiate its foreign editions in the same way that it differentiates its editions in time: Add a few charts, change a few paragraphs, alter the font, change the order of some chapters and homework problems–in other words, change things just enough so that if someone buys the Thai edition, they won’t be able to figure out their reading and homework problems assigned by the teacher without spending substantial time. This is the kind of thing that can be mostly automated, and probably will be by the end of the year. This is a problem with a preexisting solution, one already employed by textbook manufacturers, so they’re just going to deploy it.

The place where this will have the biggest effect is fiction. Because frankly, readers don’t care about page numbering with fiction, and you can’t just swap chapters 23 and 25 for different territories. The story is the story is the story.

What this means, though, is that if an author sells English language rights to print her story in India, the publisher could produce massive quantities. And there is nothing stopping the importation of those quantities into the US–or for bookstores to stock and sell those editions and price them at the North American price. (Okay, there is something stopping this; there has to be a sale in the first place, and transfers to wholesalers for technical reasons probably don’t count as sales. But I don’t think it’d be difficult to transform these into sales. It might add a little cost, but you’re already engaging in pretty hefty arbitrage. That’s the hardest part of this arrangement–making sure there’s something that counts as a “sale” and not just a transfer to a non-owner.) The bookstore makes more money; the author/publisher (presumably) make less.

Or, perhaps, the author herself could license an English-language version of her work to be produced in France. (France? Why France? Why not France? It can be anywhere, so long as the author retains the right to publish the work in that territory.) The author prints a bunch of books herself, sells them to a shell company (there has to be a sale) and then has the shell company reimport them into the United States, cutting out her publisher.

I haven’t even begun to chip away at what this would mean for digital sales. I don’t think it’s too hard to devise a two-part system to fake out international marketplaces–one that sells a digital copy (actually sells a digital copy; doesn’t just license it) to a reseller, and then resells that digital copy to the end user who wishes to purchase it. (I think you could even set it up so that they remain owner of the digital copy but license it to the end user if you’re worried about resale problems.) Voila–if you only sold North American rights to your book, someone who sets a system up properly could make it so that a sale in France can be resold in the US, and you can now effectively reclaim worldwide publishing rights to your book.

In a world where author’s interests and publisher’s interests are not aligned, I expect this to happen very, very quickly.

So authors, take note: If you only sold North American rights for your book, keep an eye on the possibilities out there. You may be able to end-run around things.

The Court ends with this lovely note to Wiley:

Wiley and the dissent claim that a nongeograph­ical interpretation will make it difficult, perhaps impos­sible, for publishers (and other copyright holders) to divide foreign and domestic markets. We concede that is so. A publisher may find it more difficult to charge different prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights…. The Constitution’s language nowhere suggests that its limited exclusive right should include a right to divide markets or a concomitant right to charge different purchasers different prices for the same book, say to increase or to maximize gain.

(Put another way: Snap.)

It is unsurprising that the Court didn’t realize that one effect of this ruling is that it could allow authors to reclaim the domestic market that they have sold away. It’s unsurprising because I doubt the legal department of publishers thought about this as a possible side-effect.

But for authors who have sold only domestic rights, and who wish they could utilize those domestic rights? This is a decision of extraordinary import.

Make no mistake: Fiction authors, this just changed how rights in your world will be sold. It might not change it tomorrow, and it might not change it a month from tomorrow.  But it did just change.

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How to write a bad complaint in four easy steps

February 20th, 2013

This is one of those legal-publishing posts that has almost nothing to do with my writing or romance, and everything to do with having law in my background. You have been warned.

One of the problems with law–as with medicine–is that it’s sometimes difficult to tell when your lawyer sucks. This is because people who hire lawyers often know very little about being a lawyer. So they accept what their lawyer does at face value. Even if their lawyer does, in fact, suck. Luckily, some lawyers believe in truth in advertising. They write legal briefs that suck on their face.

You, too, may be a sloppy lawyer! You, too, may want to make it easy for people to figure it out! If so, here’s how you can make sure that your clients and the entire world can tell how sloppy you are, in four easy steps.

1. Write a sloppy statement of jurisdiction.

Here’s an example of a sloppy statement of jurisdiction! This is sloppy in a lot of different ways. First, the person who wrote this brief didn’t bother to label numbered items as “personal jurisdiction” and “subject matter jurisdiction.” These two are not the same thing, and even though they both use the word jurisdiction, you should keep them separate. Is this sloppiness going to lose the case? Most of the time, no, but failing to comprehend the difference between the two can, in fact, occasionally lead to doom. For that reason, unsloppy lawyers usually take care to label these two different concepts distinctly. If you’re a sloppy lawyer, be sure to try not to treat these concepts separately.

Second, never take the time to say something like, “This court has federal question jurisdiction under 28 U.S.C. § 1331.” How hard is it to mention the actual statute granting the court the power to hear your case? Not hard at all! That’s why you skipped it.

None of this is going to lose this particular game (even though it could lose others), but it’s a great way to advertise your sloppiness. If you are not dotting i’s and crossing t’s here, you’re sending a sure signal to anyone reading your brief that somewhere, you failed to cross a t where it actually mattered.

2. Include extraneous, irrelevant detail in the fact section.

Here’s an example of an extraneous fact! A good fact section reads like a story. Every fact has purpose, and the person writing it knows precisely why they’ve included that fact. Each fact is the knife-blade of a scalpel, designed to cut through legal foggery.

But you? You don’t want to write a good fact section. You want to write a bad fact section. A bad fact section reads like an overbearing uncle who is trying to explain things that he doesn’t know too well. He throws in a ton of details just to prove that he knows stuff. Anyone who has a clue rolls their eyes when he opens his mouth.

(He gets stuff wrong. Nobody listens to him.)

Want to make sure your complaint sucks? Don’t ask yourself what facts are relevant and why. Write like an overbearing uncle.

3. Don’t bother proofreading.

Leave out words, just because they’re short and irrelevant!

Write awkwardly! Heck, if you can make someone read your sentence three times just to figure out what it means, you’ve made them read it three times! WIN.

Make sure that you are redundant, repetitive, and guilty of saying the same thing twice!

4. When making a claim under one section, refer to elements from another offense!

We all know how terribly inconvenient it is to have to prove every element of an offense in order to reach a finding of liability. I mean, seriously, how boring is that? Instead, if you’re not sure you can prove every element of an offense, substitute an element from a neighboring offense. Hey, maybe nobody will notice!

For instance, if you’re claiming that someone is guilty of monopolization, simply ignore the fact that a claim of monopolization under Section 2 of the Sherman Act requires you to prove that 1. someone has a monopoly, and 2. that it was obtained through unlawfully exclusionary conduct.

Instead, borrow an element from Section 1 of the Sherman Act, which prohibits contracts, combinations, and conspiracies in restraint of trade.

Here’s a great example of how to do this:

(Pro tip: It is legal to enter into contracts! Even when those contracts end up giving you a de facto monopoly!)

See? That promise that was made at the jurisdictional stage has been met. This is a lovely example of how someone being super-sloppy, and not checking the actual elements of the offense, could very well end up with this claim being dismissed unless the complaint is amended. Because you’ve confused some of the elements of a violation of Section 2 with the elements of a violation of Section 1, you’ve failed to allege one of the necessary elements–namely, that the defendants engaged in unlawfully exclusionary conduct.

I haven’t gotten into any of the other factual inaccuracies in this example brief. Since we have no merits briefs as yet, I haven’t even really commented on their legal theory, either. But whether there is some kind of colorable monopolization claim to be made against Amazon, I’d be surprised if this set of lawyers manages to do anything except be crushed like bugs when Amazon yawns and flexes its not-inconsiderable legal muscle.

Courtney Milan writes historical romance novels like the ones you see to the right. She still remembers bits and pieces from her old lives, where she was (variously) a scientist and a lawyer.

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