A brief update of what is going on:
1. Jane Litte of Dear Author was sued for defamation by Ellora’s Cave, after she signal-boosted news from Ellora’s Cave authors, editors, and cover artists saying that they were not getting paid, along with other warning signs of impending company failure.
2. Today, there was a hearing regarding the Temporary Restraining Order (TRO) that Ellora’s Cave asked for in order to scrub evidence of Jane’s post from the internet. That hearing was inconclusive: the judge decided he needed to hear evidence about the truth of the claims that Jane made.
3. Jane has asked for people–specifically editors, cover-artists, and authors–to come forward who are willing to testify that they have not been paid.
I have seen multiple times (in emails and on the web) the statement that many people who would like to come forward feel that they are bound by the confidentiality clause in their contracts, and so cannot speak on this issue.
I had a long post up about potential ways to deal with this, but decided that posting those things publicly might not be the best choice at this time. And so I am just going to say three things instead.
(A) If you think you know something that can help, e-mail Jane (firstname.lastname@example.org). If you are afraid you can’t testify because of the confidentiality clause, tell her that.
(B) I feel that with (A) you need to know that your interests and Jane’s interests do not align perfectly, and I’m sure some of you know that. So here’s an option B. If you are an author, an editor, or a cover-artist who would testify as to the truth of the statements Jane made, but for the confidentiality clause,Â contact me.Â If there is enough interest from those who would testify but are afraid for confidentiality reasons, I will look into finding a lawyer to accompany you to the hearing–someone whose job it is to representÂ your interests, and to make sure that you’re speaking up to the maximum allowed without putting yourselves at risk. But in order to do that, I need to know who you are. E-mail me at email@example.com. You do not have to tell me anything except that you would be willing to testify as to the truth of the statements Jane made, but feel that you cannot except for the confidentiality clause.
(C) I don’t know the terms of the confidentiality clause. But there is one thing that I know for sure–silence breeds fear. And no matter how broad the confidentiality clause is, there are some things that itÂ can’t prevent you from saying. So if you’re an Ellora’s cave author, editor, or cover-artist, and you would speak up but you’re afraid, say that much. Go on twitter. Post it on your blog or your Facebook page. “I’m an Ellora’s Cave author, and I’m afraid to speak up.”
Silence breeds fear. Speech–even if the only thing you say is that you are afraid–breaks silence.
23 thoughts on “A note about confidentiality clauses #notchilled”
Sharing in the hopes the Ellora’s Cave authors, editors and artists affected will see and respond. Thank you for all you’ve done to help spread the word about not shutting up or sitting down when rights are trampled.
Courtney Milan, you are awesome. Your statements and (implied) actions in 3(B) make me feel better about our species in current times. Thank you for that.
What a great, generous offer of assistance! I salute you.
What an offer. You rock.
And authors maybe need to start demanding the removal of those very clauses that silence them and keep them from warning off new authors. Just say not to those. Silence (and the clauses that gag) keeps exploiters and abusers happy.
I’m having a major girl crush here. I applaud you for your efforts on behalf of Jane and everyone getting screwed over in this fiasco. That woman had no idea the can of worms she planned to open.
Why didn’t she go after PW? Hmmm
I hope this case shines a light on all of her wrong doings. Thank you.
Let me know if there’s anything I can do to help. I’ll message you.
As appalled as I am as I watch this unfold–that Jane is going through this, that people are being threatened, that EC was even able to create this giant mess, that authors/editors/designers are being so mistreated–I am equally proud of the response of most in the romance community, be it authors, bloggers, readers or publishing professionals. It reminds me how honored and fortunate I am to work with so many amazing, smart, courageous ang giving people. Courtney, you are a fabulous example. Thanks so much for lending your energy, experience and even more to helping people understand and be less afraid.
This is great Courtney.
Not an author – but I agree.
Silence breeds fear. History proves it..
I hope that your offer of legal advocacy works.
You probably realise that The Smart Bitches Trashy Books site has commented on this action as well.
What a great idea. Good for you!
Free speech rocks!!!! We were never told it would be easy, sometimes the hardest thing to do is to speak up!!!
Are confidentiality clauses typically still binding once employment is terminated? I mean apart from jobs where employees are expected to protect a company’s trade secrets.
It seems to me that what you should be asking of authors is for a copy of that confidentiality clause. I can see where a publisher would not want their authors blabbing about how much they are paid (just like many employers) but I find it hard to believe the clause would forbid someone from saying whether or not they are paid. I don’t think I’d sign a contract that limited my free speech that much, but I’m not a starving artist, either.
On the other hand, if I were an author, I might be worried that if the publisher was NOT folding that they would refuse to publish any more of my books. For me personally (and I am *not* an author) it would depend on how angry I was that I wasn’t being paid. I wouldn’t want to deal with a publisher that didn’t pay in a timely fashion.
I turned down a publishing contract because of the confidentiality clause. I felt that was not a good way to start a relationship.
I’m one of those EC authors that hasn’t been paid or received checks so late that I had to borrow money from family to pay bills and pay for medication I need to prevent another heart attack or a stroke. I’ve joined with Cat Grant and others, speaking out as loudly as possible. I don’t really give a crap about the confidentiality clause. In my mind, when EC started sending checks out late, they violated their own policy/contract of paying monthly. Yes, the contract states they reserve the right to pay quarterly, so they aren’t in breach if they pay before the quarterly period expires. But they have stated publicly that they pay quarterly and stated on the site that they pay monthly as a courtesy to authors. So, if we can’t hold them to their word, I feel no obligation to be held to mine via the contract. I don’t have much to lose by offering my testimony to Jane, which I have done. I’m going to be 61 in December, I’m disabled, and single. I own a 22 year old rust bucket of a car and all my furniture is thrifted. The few dollars I make in royalties from EC and Beyond the Page barely give me enough to pay for my medications, pre-paid cell phone, and car insurance. In short, I pretty much have nothing, have never really had much, so going back to having nothing wouldn’t be a hardship for me. But what I do have are the principals I live by and those are honesty, integrity, fairness. I won’t violate those for anyone, not even if I’m contractually obligated to do so. So, I’ve emailed Jane and if she needs a statement from me, she’ll damn well get it, consequences be damned. Nobody walks all over me or the people I care about, and I care about every single author, editor, and cover artist that are going through this. Now, I have to say, I finally got a check on the 27th of September. Just under the quarterly wire. Hmmm…obvious much?
Bravo! I bought one of your books. I want to help you and Dear Author pay for lawyers etc, but since you don’t have any DONATE buttons set up yet, this was the next best thing. And I’ve found an author I’ll keep buying.
There’s enough bullying going on. When a publisher violates the contract by not paying royalties in a timely manner, it seems to me that the contract is already broken and so is the gag rule.
Obviously, I’m not a lawyer.
What I find so interesting is the way in which authors seem to be perceived (or perceive themselves) as employees by/at some publishing houses, instead of what they are — independent contractors. That alone strikes me as a huge problem in how these relationships are conducted in practice.
Just checked with a friend who deals with NDAs in business routinely, and I hope the following helps: NDAs/confidentiality agreements are publishable. A confidentiality agreement/NDA cannot cover payments made/not made; they cover proprietary information: payment/failure to pay is not proprietary information. Any NDA/confidentiality agreement that prohibits disclosure of EVERYTHING is too broad, and is seen as taking advantage (and likely can’t be enforced).
I’m not an attorney either, but there are actually free legal forums where you can post these types of questions and get responses from licensed attorneys. Another good resource is, of course, SFWA (Science Fiction Writers of America) which was created to deal with just these same issues with publishing houses, so those of you who are involved might contact them and ask for help/advice/attorney referrals/help setting up a similar organization/whatever you need — they’re good people!
Hope this helps!
Courtney, thank you for doing this good thing for our fellow authors. You’re a great author and a fine human being.
Any confidentiality provision I have ever read (yes, I have read some) always has an exclusion for information that a person is legally required to disclose, like pursuant to a subpoena. Seems to me that if this case goes forward, Jane could get a lot of information in discovery and then issue subpoena’s to get information from persons who would like to speak up but are afraid. Meri makes goods points too that confidentiality clauses cover proprietary information, not information about contract breaches. Again, this is not legal advice, just my thoughts. Ms. Milan, I have already bought all of your work, sometimes in various media, but if I had not already, I would run out and buy them now. I appreciate your dedication to the First Amendment, and I find your analysis of the legal issues easily understood and helpful.
@Meri: I just want to put a caveat to your friend’s advice (I am a lawyer who has litigated nondisclosure and noncompete agreements) and whether or not such an agreement is overbroad or enforceable will depend on the state in which it was entered (or the law of the state the agreements says governs). The law in each state is going to be different, in some states it could be very different.
@India Masters: I just wish I could hug you so hard for so many reasons.
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