Writing What You Know

Among the many invocations piled upon the aspiring writer, “write what you know” is usually close to the top. Like most of them, this one can be overly interpreted to the absurd (in either direction); but in the main, I think it’s pretty good advice for Big Issues.

I know a lot about the law and courtrooms, politicians, elections and the legislative process. It excites me (I know, that’s sick) to use these as plot devices, because with my knowledge, I can have fun crafting a compelling plotline, without either doing months of research or losing sleep over the fear of a Big Dig-size plot hole.

I suppose I could do the research necessary to write a convincing bio-terrorism thriller, but why would I? I don’t know anything about either biological weapons or international terrorist tactics. And there are apparently hundreds of other authors who do (or think so), so it’s simply not a value proposition for me to go there.

On the other hand, very few of the authors who use international terrorism or intelligence in their plots have any actual experience in that field. They have general experience in the “profession,” perhaps, but I sincerely doubt that Barry Eisler was actually an international assassin.

Another great example is sex. Who doesn’t know about sex? It seems some people get very rich these days writing about all sort of deviant and sordid sex. I take it on faith that most of them are just gifted with wild imaginations. I mean, seriously, edible body paint?Small Fish - ACX

But those are Big Picture things. You can research a lot of technical detail bits with internet research these days. It’s ridiculous how quickly you can learn anything on a browser. Or at least get a reliable answer to a question. Guns, incendiary devices, blood spatter science, even the heritage of Jesus Christ, apparently.

But do you really need to know the actual fact to successfully fake it? Even if the reader expects you to be authoritative on it, your research can carry you. People trust Tom Clancy on military spy stuff, but he was an insurance salesman who couldn’t even get into the service because of nearsightedness.

Of course, there are many instances in which the reader couldn’t care less about technical accuracy. These are just opportunities to let your whimsical self loose.

Here’s an example from a recently published indie novel.

As we near the climax of the story, the hero has been beaten about the face, head and body by thugs. He lies in a hospital room with an IV drip of hydrocodone when his wife rushes to his side. How does a badly beaten man under the influence of hydrocodone behave? What does he see? How does he speak? Does the author need to interview an ER physician before putting finger to key? Of course not. Anyone with a bit of life experience has been zonked on painkillers in a hospital at least once or twice. (Or if he’s over 50, has had a colonoscopy!)

Through a gauzy hydrocodone haze, Paul imagined an angel, disguised as his wife, swiftly descending on him. As the angel got closer, the features of her face clarified, and for a terrifying moment, he saw Shannon as a marionette.

“Your cheek looks like an eggplant,” Shannon the puppet said, gliding to Paul’s side, patting him gently with its tiny hands.

“You look like Pinocchio with tits,” Paul said, totally serious.

The floor nurse poked her head in. “Mrs. Forté, your husband has just had a fresh dose of pain killer, so I would give him a wide berth on whatever he says.”

“What do you mean? He talks to me like that all the time.” She patted Paul’s hand. “Don’t you, sweetie?”

Now the cat’s out of the bag. I’m shilling for PAUL & SHANNON.Full Irish Cover MEDIUM WEB

Susanne and I had a lot of fun with FULL IRISH, and we’re very excited about the plot that’s coming together for the next in the series. A lot of it is what I know, but in the past two days I have spoken with experts in (a) “double indemnity” insurance and (b) mortuary procedure.

So it’s not all about what you know, but what you need to know.

A Full Irish Holiday

It looks like this Thanksgiving-Christmas holiday season is going to be Full Irish.Full Irish Cover MEDIUM WEB

This political suspense novel marks the return of Paul and Shannon Forté, several years after they had moved to Carmel following Paul’s acquittal on corruption charges. It also introduces Finola McGee, the brassy political editor of the Irish Telegraph, Dublin’s second biggest paper.

McGee is on a mission to find the murderer of an honest politician and close friend. Forté is hired in Boston to dig up dirt on a conniving Irish competitor.

When the two collide at a famous County Kerry castle and discover their mutual interests, the ensuing game plan is more Pink Panther than Hercule Poirot. In a sometimes madcap, sometimes dark adventure, Shannon lands a blow against lecherous politicians, McGee shows off her pole dancing prowess, an Anglo-Irish butler turns double-agent, and the zygomatic bone take disproportionate abuse.

But can the trio unravel the web of conspiracy stretching from the back corridors of Leinster House to the polished inner sanctum of the Massachusetts Senate?

Against the backdrop of the windswept west coast of Ireland and the watering holes of Dublin and Boston, Full Irish exposes a rivalry that goes to the very heart of politics.

_____

Susanne O’Leary and I started the project on May 1st. As my principal objective in seeking a collaborator was to find a more efficient way to produce a finished novel, this has been a smashing success. We did it smoothly, and we had a lot of fun (and very few arguments) doing it. I look forward to seeing how readers react to it.

While we finish up the details with formatting and the Createspace process, Susanne and I will begin to work on a sketch for the next one. Might be something to do with banking, or maybe the art market (to get Shannon more directly involved). If you have any wacky ideas, feel free to share them (for attribution or not).

 

 

A story is born

A few weeks have passed since Susanne and I announced our collaboration, and I wish to report that the process so far has been superb.

Through a series of emails and Skype conversations, we have tweaked and embellished the plot and put up >10,000 words. At this rate, we’d be done with a draft by the end of August. More importantly for me, though, is that we have a road map that shows me the signposts ahead, and I feel no anxiety that I may take a wrong turn and end up hip deep in a peat bog.

So, here’s a bit about our story:

Finola Murphy is a political reporter for a Dublin newspaper. Shortly after a friendly TD (member of Irish parliament) tells her he has some sensitive information to share with her, he is pushed in front of a train on his way to work. Finola knows enough to suspect that her friend had some information implicating a high-ranking member of the Irish legislature (the Oireachtas) in some sort of corruption. Devoted to her friend and his widow, Finola is keen to solve the murder.

At the same time, Paul Forté has a new client, a software company in Massachusetts that is involved in a contentious bidding process for a lucrative sate contract. His 800 lb. gorilla competition is an Irish software company whose Boston lobbyist (a former colleague of Paul) has enlisted the assistance of some powerful politicians to help it get the contract – by whatever means necessary. Paul needs to find out where the fix is, and prevent it from happening.

The story bounces back and forth between Ireland and Boston, as Paul and Finola each investigate their own ends of the story until they discover their common interests and combine forces. The point of view alternates between Finola and Paul (in 3rd person).

Influence peddling, blackmail, bid rigging, more murder, and a satisfying climax ensue (along with am amusing relationship between Finola and Shannon).

The story development has occurred almost without effort. The collaboration has been easy, free, and (so far) without disagreement. And it’s a great deal of fun!

When I first registered as a member at Authonomy in late 2008, I had no idea what to expect. The friendships and contacts I made there have been a constant source of satisfaction and pride since then – and this is the latest example. I can hardly wait until we have something to show you.

Surviving in the Amazon Jungle – How authors and reviewers can co-exist in a hostile environment (and run to court if they don’t)

Well, the Rice Petition has lost a lot of its steam as author after author continues to sign it with no apparent understanding of exactly what it proposes (based upon their own comments), but in the meantime, there has been a lot of discussion, and agreement, that Amazon’s review guidelines could use a few tweaks and a lot more enforcement.

There has also been a fair amount of criticism that demanding the true identities of ten million customers of Amazon products was too high a price to pay for a few dozen militant female reviewers to be “taught a lesson” by Queen Anne.

In that light, I began to consider the kind of actions the author and reviewer could take to both clarify their expectations in the book review arena and provide meaningful remedies against wrongdoers. There is no reason to send the cockroaches into the woodpile when a few well-coined provisos and wherefores can bring about harmony and understanding.

As a (dreaded) litigation attorney, I am forced to parse the language of contractual covenants, indemnifications, waivers, warranties, representations, certifications, promises and disclaimers. While the reading is excruciating, I take comfort in the fact that, pedantic and dull as they are, these kinds of clauses are usually enforceable according to their terms, no matter what they say. As long as both parties agree to the language and it is otherwise unambiguous and capable of only one meaning, it will be enforced in the event of a breach and consequent suit.

This kind of dirty business is not something fiction writers find tasteful (to say nothing of affordable), but believe me, knowing at the outset what your rights and obligations are gives you the comfort that your engagement in the Amazon marketplace is not going to land you in an FBI sting operation or subject you to nasty pranks or sudden food poisoning.

In the spirit of conciliation and cooperation, indie author to indie author, indie author to book reviewers of all kinds, and officious interloper to guileless newbie, I offer you these helpful tips to avoiding the snake pits and alligator jaws lurking in the Amazon jungle.

Authors and Their Babies Books

 When you’ve spent several hours a day, several days a week, over several weeks years, on your next series blockbuster; when you’ve waited days months for your friends experienced beta readers to return their uncritical praise detailed criticisms and smiley emoticons line edits; when you’ve begged paid your BFF copy editor to go over it with a blow-kiss fine-toothed comb; when you’ve spent hours putting together your cover using stock photos and impossible fonts hundreds for a professional cover from a reputable graphic artist, and run your word file through the free software you downloaded from someplace paid for professional formatting and design of interior matter, the last thing you need to worry about is having no control over who reviews your book and what they say. One opinion from a gangster bully the discriminating reader, and your new baby book is floating face down in the Amazon swamp, has met its first troll review unflattering opinion, a victim proud new participant of the evil unnamed cabal of bully gangster trolls rough and tumble of the new book marketplace.

To enhance the opportunity for your book’s immediate and unqualified acceptance by avoidance of the mindless fangurlz “thought leaders” of the Amazon review system (as represented by the vaunted Society of Top Awesome Reviewers – STAR), I suggest that you insert the following language into the front matter of every one of your ebook offerings:

By receiving a copy of this book from any source whatsoever, the reader agrees that s/he will not post any review of said book in any Internet venue, without prior disclosure to and approval of the author. The author shall have no obligation to approve any review that contains undue criticism of any aspect of the author’s craft, imagination, story, cover or author page. The determination of what is “undue” shall be at the sole and unfettered discretion of the author, with or without regard for fact or reality. The author reserves the right to employ any and all means of social media (included but not limited to Amazon forums, Facebook, Kindle Boards, Facebook, personal weblog, Facebook, Pinterest, DiggIt, Tumblr, Fivrr, Facebook and Facebook) for the purpose of criticizing, mocking, ridiculing and otherwise defaming any review or reviewer, whether or not such review has been published in any public venue (including but not limited to the Internet generally, message boards, bulletin boards, telephone poles and public urinals); and the reviewer hereby waives any and all claims s/he may ever have against the author for the exercise of said right. As security for the performance of the reviewer’s obligations hereunder, the reviewer hereby grants the author an unlimited, unconditional lien upon reviewer’s residence located at _____________ as described in a deed dated ____________ and recorded at the _______________ county registry of deeds at Book ___, Page ___.

(Notary Public)

Please note that the notarization is a very important detail, as many foreign states require that contracts contain the raised seal of the notary to be enforceable.

Authors new to the business might consider the recommended language to be more aggressive than necessary. Who would agree to such ridiculous terms just for the pleasure of writing a review?

Those authors are dipshits not inured to the risks of the marketplace. They have not witnessed the permanent damage temporary setbacks that can result from the ravings of a psychotic stalker troll the expression of a frank opinion.

You are business people. Business people use contracts. Contracts protect rights. You can’t be too clear with your expectations!

The Rabid Stalker Bully Gangster Trolls Reviewers

 Only a few short years ago, the average stay-at-home mom spent her relaxation time reading Jackie Collins and staring at the pool boy. Now, half of them are outselling Jackie Collins writing porn about the pool boy.

The other half are writing reviews of them.

Make no mistake – some of these reviews are the evil and illiterate rantings of jealous nobodies  can be controversial, as they may shine an unduly harsh light on perceived shortcomings such as spelling, grammar, usage, style, characterization, plot, pacing and other frivolous details.

As many of these hypercritical reviewers do not boast MFA degrees and over-blown writing resumes, their criticism is often met by rabid hoards of fans attacking en mass in a deliberate prompt from the author’s Facebook page emphatic disagreement. The troll truly dedicated reader, a devoted two-book-a-week genre junky who has been a big meanie and said bad things to me written hundreds of reviews (good and bad) and been responsible for destroying the destiny of fame and fortune for tons of indie authors the word-of-mouth sales of thousands of indie books, might be publicly attacked by a bestselling household name as a “cartoonist reviewer” or like term find her opinion challenged by informed and respectful fellow readers.

There is only one way to protect the avid reviewer from the repercussions of harsh attacks on illiterate tripe honest intellectual criticism. Get it in writing.

The next time those indie authors contact you via email with a review request, send this back to them, auto-reply:

Hi!! I’m so GLAD that you contacted me to request a REVIEW!!!!

I’m glad to oblige and I can do it almost immediately!

Just send me back a (prc)(epub)(pdf)(doc)(other__________) file and your signed acknowledgement of the following statement:

“By delivering a copy of my book to REVIEWER, I hereby acknowledge that I have no expectation that the reviewer will read, like, or even review my book; and should REVIEWER publish a review in any venue, I will not criticize or otherwise comment negatively upon the review or the reviewer in any Internet venue; and further, I will not request or exhort any family member, friend or fan to do so. I further agree that any violation of this covenant shall entitled the reviewer to damages in the amount of $5 for each such comment made, in any venue, times $5 for each day such comment(s) remain visible. I hereby certify under the penalties of perjury that my true and correct legal name is _________________, and my true and correct residential address is ____________________.”

It comes down to communication. Problems arise between author and review when there is a failure to communicate. By both utilizing the form language above, or such modifications as they may mutually agree, the risk of miscommunication is substantially reduced. Each party knows their rights and liabilities. And they have an ironclad, enforceable promise in writing, upon which they may escalate any possible dispute.

I am available for consultations, should a problem arise.

That Damned Anonymous Panned My Book!

In the past week, there has been a great deal of exposure of a petition to Amazon seeking to remove anonymity from all Amazon book reviewers.  With a great deal of help from author Anne Rice’s nearly one million Facebook followers, the petition, initiated by one of Rice’s fans, has garnered over 5,000 signatures.

In the scheme of things, 5,000 is not a lot of signatures, but I am still baffled that this many people – I might assume many of them are authors and Rice fans – could put their names behind the mandate expressed in the petition.

Before we get to the petition itself, though, I want to point out a few things.

I’ve spent a fair amount of time in the Amazon forums, and perhaps out of morbid curiosity, followed and reviewed the history of many of the more egregious instances of author versus author, author versus reviewer, and perhaps the worst instances: author fans on reviewer. These nasty encounters occur in the dark recesses of the Amazon book world, more commonly surrounding self-published works of erotica, romance and paranormal romance. As I read none of those (I swear), I am a mere wide-eyed spectator.

Let me say that one of the worst examples of this kind of gang attack was perpetrated by Ms. Rice herself, who posted a one-star review on her Facebook page, for all of her nearly 1 million fans to see, with a link to the review. You need no imagination to know what happened.

So then, this petition was submitted by one Todd Barselow, an independent editor and avowed fan of Ms. Rice, last week. (Mr. Barselow once attempted to raise money via gofundme to pay for a trip to New Orleans to visit the author and her son.) In just a short period of time, news of the petition – and more importantly, Ms. Rice’s championing of it (complete with PR photos)- has reached a variety of press outlets, all liberally using the press package delivered to them. Interesting!  Still, with all of that worldwide press coverage, the petition still stands at just 5,280 signatures.

In the midst of this all, it was announced that Ms. Rice’s long-awaited next novel is to be released imminently. Ah. It starts to make sense.

Saturday the 7th, a freelance writer from Tampa, FL initiated a thread on the Top Reviewers Forum, identifying herself as a reporter and asking for comments on the Rice petition. She had already written the piece covering the “authors” perspective (Rice and two others); she wanted to cover the reviewers. Amid suspicion that she might be a Rice fan, she assured forum members that she would report “objectively.” The freelance writer pens a regular column for the Tampa Bay Examiner called The Anne Rice Examiner, in which we can peruse such objective news articles as “Five Reasons Why We Love Anne Rice Novels.”  Other hard-hitting pieces can be found, such as Anne Rice Has a New App, and Random Facts You Might Not Know About Anne Rice (she prefers Jack-in-the-Box tacos to room service at the Ritz Carleton).

Needless to say, the article purporting to convey the opinions of reviewers in that forum wasn’t the objective reportage one might have expected from a typical journalist. In her lead, she stated that “some were suspicious of my motives and tried to expose me as some spy for the other side.” Gee, I can’t understand why they would have thought that! The freelancer’s next piece, published the very same day as her “Reviewers Fight Back” piece, is titled, Anne Rice’s Big Reveal – What will the subject of her new book be?

Anyway, I’ve come to the regrettable conclusion that this petition, launched by an Anne Rice fan, promoted far and wide by Anne Rice’s PR team, and reported on by Anne Rice’s hand-picked accolyte, is a publicity stunt – and successful one, at that – by the author, timed to occur immediately prior to the release of her newest book.

Now that we’ve covered the origin of the petition, what does it say? Well, here are a few of its utterances, and my reaction.

Anyone can now quickly and easily publish a book using the tools freely provided by Amazon.

This is a problem, because “anyone” covers a lot of people who (a) have no business putting a price tag on their so-called “book” (ouch, I know – but it’s true) and (b) are not emotionally equipped to handle the reaction of a disgruntled customer.

What is at issue is the fact that there is an incredible amount of bullying and harassment of some of these self publishing authors taking place on the Amazon platform/system.

Well. “This is the worst book I’ve ever tried to read” is not bullying and harassment. Blunt, hard to accept (if you’re the author), yes. Warranting the removal of anonymity? No.

I believe, as do countless others—many who will have signed this petition—that the reason this bullying and harassment is able to take place is because of the allowance of anonymity on Amazon.

The book has to be uploaded first, so that starts the ball rolling.

These people are able to create multiple accounts and then use those accounts to viciously attack and go after any author or person that they feel doesn’t belong on Amazon or who shouldn’t have published a book, made a comment on a forum post, etc.

Is the problem anonymity? Or is it multiple aliases under one account? I’m all for eliminating the use of multiple sock puppet accounts – frequently used by authors to post fake five star reviews of their own work, as well as to attack competitors.

Reviewers and forum participants should not be anonymous. By removing their anonymity and forcing them to display their real, verified identities, I believe that much of the harassment and bullying will cease.

We really do need to define these terms, “bullying” and “harassment.” Both are laden with subtext. But what Ms. Rice proposes is that the tens of millions of customers who buy from Amazon and might wish to review a product must surrender their anonymity because a few authors have had bad receptions to their work.

The impact of such a policy is hard to over-estimate. What soccer mom is going to continue to review the erotica she buys when she fears the judgmental eyes of the PTA board? What sufferer of mental or physical illness is going to review books on those subjects? The list of products reviewed on Amazon is endless. And so are the people whose opportunity to provide other customers with feedback will be impaired by this intrusive demand for identification.

Author Anne Rice has recently taken up this cause, as well, after experiencing the vitriol and hatred spewed by sock puppet account holders in the Amazon forums. She has publicly spoken out against these types of activities on numerous occasions and I’m sure that she will support this petition.

This is where the sheep’s clothing starts to look fake.

First of all, Ms. Rice was not subjected to “vitriol and hatred.” She initiated discussions in the Amazon forums, made deliberately provocative allegations against “careerist reviewers,” and “gangster bullies,” and met with disagreements. I invite anyone with the idlest curiosity to have a look. Furthermore, who knows whether any of the people daring to challenge Ms. Rice’s opinions were “sock puppets” or not. I know I did, and here I am. Many other authors disagreed with her, by name.

The petition was posted by Ms. Rice’s fan on change.org on Monday, February 24th. Ms. Rice signed the petition that day, and appears to have been the first person to have done so. She posted a link to the petition on her Facebook page on March 3rd, the day before the media campaign began: The Guardian (“Anne Rice signs petition to protest bullying of authors on Amazon”), Entertainment Weekly (“Anne Rice stands up to haters on Amazon”), Mediabistro (“Anne Rice Fights Author Bullying on Amazon”), the Toronto Sun (“Anne Rice wants Amazon to ban anonymity”) and (of all places) the American Conservative (“Anne Rice Against Amazon Bullies”), all  on March 4thTime on March 5th, the Christian Science Monitor on March 6th,  and a variety of secondary sources picked it up.

All with Ms. Rice’s name in the headline. All featuring lovely pictures of Ms. Rice. Some of them repeating false information about things that didn’t happen; none of them repeating the gory details of Ms. Rice’s own penchant for attacking her critics.

It offends me that a famous author would use such a far-reaching cause to both punish her critics and promote a new book. It’s shameful, really.

I get it that some folks have thin skin (Ms. Rice said, “thin skin got me where I am today”), and I’m not one to stick up for malicious people. I am not pleased at all by a lot of the anti-social behavior exhibited on the Internet. I’d like to see Amazon more aggressively monitor and moderate their customer forums, and I can think of a number of users I’d love to see banned outright.

But compelling millions of customers to reveal their names as a condition of reviewing a product is the equivalent of dropping a bomb on an anthill. You get rid of the ants, and a whole lot more than you intended.

Picking a Fight with a Barrel of Ink

[Note: the following facts are true. They can be verified through the various court filings and decisions on file here and here at Citizens Media Law Center.]

Early in my short political career, I learned an old adage known to politicians around the world and attributed to many: never pick a fight with someone who buys ink by the barrel. The meaning is plain enough, and the advice is indelibly sound: do not start a fight with the press.

I must confess that I did not heed that advice, although not out of courage as much as a lack of fear in the consequences. I was only going to serve for a few years anyway, so how much damage could they do? It was a liberating thing, knowing I could speak frankly to reporters and editors. And boy, did I.

This strategy cannot easily be translated to an author who wishes to take issue with a reviewer, or worst of all, with the Big Ugly Goon standing right behind him. I offer as Exhibit A the unfortunate case of Jeffrey Hammer.

Hammer is a self-published author of several books, including Mind Reading in Written Form!: The Magic, Power, and Secrets of Handwriting Revealed! and An Advanced Guide to “Basic Hypnosis”.

Mr. Trendl, the Evil Reviewer (and Top 500 Reviewer, a fact of some note), didn’t think much of Mr. Hammer’s books, and said so in numerous book reviews posted on Hammer’s Amazon book pages. In the reviews, titled “Shallow Look at Hypnosis” and a “Disappointing Look at Graphology,” Mr. Trendl compared Hammer’s book on hypnosis to “the dust under my couch,” and questioned Hammer’s “spelling, grammar and teaching on the subject” of hypnosis. Needless to say, Trendl did not recommend Hammer’s books.

It is at this point that Mr. Hammer would have been well advised to ignore Mr. Trendl’s criticism and gone about his business. Unfortunately, he did not. Hammer sent a letter to Trendl, threatening future litigation if Trendl “did not stop libeling him on Amazon.com.” Trendl ignored the threat, and the next month, April, 2002, Hammer sued him in federal court, alleging that Trendl’s nasty reviews amounted to both copyright infringement and defamation. And no, he did not do so through a lawyer. He proceeded as the notorious “pro se” party.

Mr. Hammer’s (handwritten) Complaint, which can be read here [WARNING: TRAIN WRECK AHEAD], appears to put to rest any lingering doubt as to the fairness of Mr. Trendl’s criticism of Hammer’s writing abilities. Among other claims, he asserted that Trendl’s reviews illegally referred to competing works, resulted in a decrease in sales of his books, ruined his reputation and subjected him to public humiliation. He accused Trendl of targeting him and his books to prevent him from selling them, and claimed that Trendl was being paid by competitors to do this.

Well, predictably, Amazon did not take kindly to all this bad karma. In July of 2002, Amazon’s Vice President of Litigation (wow, what a corporate title!) notified him that: (1) it would not take Trendl’s comments down; (2) his lawsuit against Trendl was meritless; (3) Amazon would provide Trendl with counsel; and (4) if Plaintiff did not agree to dismiss the Trendl Action with prejudice, Amazon would remove Plaintiff’s books from their website.

“Plaintiff” did not accede to Amazon’s requests.

And Amazon removed all evidence of Mr. Hammer from their website.

Undeterred, Mr. Hammer doubled down. After he had filed more than 50 motions in the Trendl action, in January of 2003, the federal district court dismissed his complaint, and took the extraordinary step of entering the following orders:

ORDERED, that, as a result of the more than 50 motions made in this case some of which were repetitive and frivolous, Jeffrey Hammer shall not file any papers in connection with this case unless prior to any such submission: (1) he files a one-page written application to the Court for permission to file papers in this case; (2) in that one-page written application, he explains why the case should be reopened and why he seeks permission to file papers; (3) the Court grants his application in a written order; and (4) Hammer submits a copy of the Court’s order granting him permission to file papers with the papers he has been allowed to file; and it is further

ORDERED, that the Court will not accept any papers filed by Hammer in this case unless he complies with the procedures set forth in the preceding paragraph; and it is further

ORDERED, that Hammer’s failure to comply with the foregoing procedures may result in monetary sanctions including, but not limited to, the defendant’s attorney’s fees; and it is further

ORDERED, that Clerk of the Court is directed to close this case.

You can say one thing about Mr. Hammer. He is persistent. He sued Amazon in the same federal court, six months later. And what a Complaint it was, containing such provocative claims as theif [sic] of personal property, cyberjacking of his website, robbery, violation of his copyright, deprivation of his right to freedom of speech, discrimination, violation of normal business practices, and anti-competitive conduct/violation of consumer’s rights.

He shared his deep suspicion that, had Amazon not provided Trendl with legal counsel, he would have recovered a default judgment of $ 5 million, and speculated that “if the matter . . . would have been allowed to go to trial, the plaintiff would have won and Mr. Trendl would have lost! (Big time!).”

He insisted that Amazon was aware of Trendl’s unfavorable reviews and “should have removed [Trendl] from their system[,] but they refused and uped [sic] his ranking as a top book reviewer.” Because the “reviews” of parties become the property of Amazon.com upon submission, he asserted, “Amazon.com clearly becomes a party to these attack essays by allowing [Trendl] to alter [sic] attack essays.” In short, Plaintiff accused Amazon.com of colluding with Trendl.

Unfortunately for Mr. Hammer, Judge Seibert did not share his suspicion. She dismissed his case against Amazon.

And Mr. Hammer’s books? Well, there is dust under the couch.

One might think this is a wild exaggeration, an outlier. But there have been others who’ve claimed contacts with the FBI over reviews as nasty as Trendl’s. These bogus claims have been accepted as gospel by members of a shadowy website claiming to be supporters of authors “bullied” by nasty reviewers, who have recommended to their readers that contacting the FBI is a good idea.

YES! The NEW PARADIGM!

We are dealing in the Wild Wild West again, where the crusty old laws of tort and contract are not quite attuned to the internet behavior of authors and reviewers. Where the DMCA takedown provisions are used as weapons and swords by battling contingents.

There is one lesson to be learned about all this – besides “a man who represents himself has a fool for a client.”

It is this:

Do not respond to negative reviews (unless it was a particularly excellent negative review, and you can pull off “boy, you got me on that one!”

Keep Your Hat On

Randy Newman’s iconic song (famously performed by Joe Cocker in the memorable Mickey Rourke-Kim Basinger sizzler, 9 ½ Weeks) came to mind as I was reading all about the latest conflagration: “censorship” of erotic content in literature.

If you’ve been hiding under a rock (or maybe just don’t pay attention to the fortunes of the “erotic romance” genre), you’ve missed this:

A little more than a year after Amazon (finally) erased The Ped0phile’s Guide to Love and Pleasure from the Amazon catalogue (backstory from Selena Kitt here), the folks at Paypal upset the indie publishing applecart by notifying the book distributors they service (including Bookstrand.com and smashwords.com, and at least one other venue for erotic content, excessica.com) that they would have to remove all titles with content containing “incest, pseudo-incest, rape, and bestiality.”

Bookstrand and Smashwords immediately notified all of their authors of this, and requested immediate compliance with the take-down order. Then the shit hit the fan. The internet buzzed with the outrage of indie authors around the globe. A petition site to Stop Internet Censorship launched (now has 606,800 Facebook “likes”) Smashwords CEO Mark Coker emailed all Smashwords authors who publish erotica. As Mark stated in the email, “their hot buttons are bestiality, rape-for-titillation, incest and underage erotica.” He might have found a better term than “hot button,” I suppose.

Anyway, the debate raged for days and days about this subject of “censorship.” Surely Paypal was a “monopoly” that couldn’t legally tell people what they could sell or what they could buy! Who was Paypal to appoint itself Morality Police? Certainly nobody advocates the glorification of rape, but this was walking on a slippery slope toward more aggressive content control. Paypal was violating our First Amendment rights to free speech! In fact, yesterday, the First Amendment Coalition posted on its website that the Electronic Freedom Federation was “ready to go to court to contest PayPal’s practice of censoring sexually explicit fiction.”

This intrigued me, since I might have thought EFF (and the First Amendment Coalition, for that matter) would have recognized the grave challenge of applying “censorship” laws to a private company.

Lo and behold, Electronic Freedom Federation had said no such thing – and to their enduring credit, stated the issue quite frankly:

…as we explained when WikiLeaks was facing censorship from service providers: the First Amendment to the Constitution guarantees freedom of expression against government encroachment—but that doesn’t help if the censorship doesn’t come from the government. Free speech online is only as strong as private intermediaries are willing to let it be…

…But having a right to speak is not the same as having a right to be serviced by a popular online payment provider. Just as a bookseller can choose to carry or not a carry particular books, PayPal can choose to cut off services to ebook publishers that don’t meet its “moral” (if arbitrary and misguided) standards.

Good on them for getting it right. Shame on the First Amendment Coalition for mis-stating EFF’s position.

Anyway, while it is clear that Paypal has the right to exercise its commercial free speech by not participating in the sale of objectionable content, I couldn’t help but wonder why an enterprise like Paypal – owned by eBay – would care to get involved with the content of the books sold on internet sites. Was there some other commercially relevant basis for setting such a policy?

It appears there is.

As Selena Kitt pointed out, when she began to search for an alternative to Paypal, here’s what she discovered:

 … most merchant-services (i.e. companies that allow you to use Visa and MasterCard on their site) which allow adult products charge a $5000 up-front fee to use their service. Then, they take exorbitant percentages from each transaction. Some 5%, some 14%, some as high as 25%.

Now it was starting to make more sense. The credit card companies charge higher fees for these “high-risk” accounts because there is a higher rate of what they call “chargebacks.” You know that protection on your credit card, where if you dispute the charge, you don’t have to pay for it? Well they’ve determined that happens more with porn and gambling and other “high-risk” sites than others, so they’re justified in charging more money to process payment for those sites.

Paypal doesn’t want to have to pay Visa and MC for carrying “high risk” accounts on their books. You have to remember that Paypal is a middleman. Sites that carry high-risk material have to pay the high-risk costs of doing business. If you’re going through Paypal, you don’t have to pay that. Until Paypal catches you. And then they insist you take down your high-risk content or lose your account.

Regardless of what many consider an unwarranted infringement on their right to sell or buy erotic literature, I doubt most of them would go so far as to argue that Paypal (or Smashwords) would have to underwrite the higher cost of dealing in that segment of commerce (i.e., the purchasers of pornography and erotica).

Let’s finally take a moment to look at that “censorship” issue.

As EFF succinctly put it, the First Amendment to the Constitution guarantees freedom of expression against government encroachment—but that doesn’t help if the censorship doesn’t come from the government. It doesn’t matter if the private censor is a mom and pop store or Paypal. What matters is who’s doing the “censorship.”

Ironically, even as the voices of freedom echo across the internet, along comes another attempt at censorship, this one to Have the FCC Remove Rush Limbaugh From the Radio.

Are there any readers out there who want to take a crack at this one? Can you provide a cogent argument that supports compelling Paypal to process the sale of erotic literature as well as driving Rush Limbaugh off the air?