Not Walking Away from Omegaverse

This is an update to the post Copyright: The Alpha and Omega(verse,) written after I found a website (!) one of the parties had created with some additional court documents. I am not linking to the website, but you can find it very easily by searching for “Omegaverse litigation.”

For starters, putting up a website about ongoing litigation is not something I’d ordinarily advise a client to do. Anything you post publicly can (and probably will) be admissible evidence in that litigation, and could also irritate the judge for some reason (or no reason, judges are human too.) This one appears to be fairly nonincendiary, but I surely hope the party’s lawyers are aware of it and are providing at least general oversight and approval of everything posted thereon.

Speaking of “posted thereon,” there were more documents there, which I hadn’t read when I wrote the prior post. I’m not going to do a step by step analysis, as my goal here was more to provide an overview of the issues for educational purposes than to provide hard-hitting legal journalism. (Somebody writes me a check, they’ll get hard-hitting legal journalism. 🙂 ) But I will comment on some of the issues these additional documents raise.


First issue: Jurisdiction

Oklahoma is where (one of) Ms. Ellis’s publishers, Draft2Digital, is located, and where some of the DMCA notices, et cetera, were sent. Since Ellis/Quill Ink are located in the United Kingdom, they had to pick a US jurisdiction to file their suit and they selected the Western District of Oklahoma because, one assumes, that’s where their associated party in interest is. Ms. Cain (identified in the documents by her legal name, which is not Cain) asked to be dismissed because she lives and works in Virginia and claims to have no contacts with the great state of Oklahoma. The Court considered this and agreed. So she’s out for now, although there are various ways she might theoretically be brought back in. One wonders, for example, if Blushing Books has any sort of indemnification agreement with Cain, or if they might try to join her if it turns out that she was actively part of the creation and transmission of the DMCA notices, or they somehow are found partially liable for defamation et cetera. At this point it seems unlikely she’ll be back, but not impossible.

Blushing Books, in what seems like a pretty reasonable decision, says in its Answer – click here to read it – that while it doesn’t think the Court has jurisdiction over it either if it tries to have the case dismissed Quill Ink will just immediately refile it in Virginia (where Blushing Books, and, interestingly, Ms. Cain, are located) so since we’re here, let’s get this over with. Part of this could be an attempt to shield Ms. Cain from personal liability, as if the case is transferred or refiled, she could be rejoined as the VA court would probably have jurisdiction over her. The VA statute of limitations for defamation has allegedly run, so if the case stays in OK, it would be very hard to sue Ms. Cain for defamation after this.


Second Issue: Plaintiff’s Response to Alleged Plagiarism/Infringement

One of the documents is a letter from Quill Ink’s attorney to Blushing Books’ attorney. Click here to read it. It refers to prior interactions between the parties but the bulk of the text is a refutation of the particular claims of infringement.

Please recall that I do not represent either party, and I do not have a horse in this race other than that I am a firm believer that Scènes à Faire/tropes are not protectable elements of copyrighted works. But my goodness, is that some zealous advocating. Among other things, it points out multiple instances of Blushing Books/Cain allegedly misquoting her own books to make the similarities seem greater than they are. If these allegations are accurate – on which I have no opinion – this is going to look really, really bad in front of a jury.

I have to say, I really do love the response to the allegation that the main male characters of both books are leaders of violent armies. Specifically: “All armies are violent.”


Third Issue: Blushing Books’ Answer and Counterclaims

It is pretty much a given that anyone who is sued will do their very best not only to defend themselves from the suit, but will try to find a way to say to the Court, “Not only am I pure as the driven snow, but actually it is the Plaintiff who has cavalierly disregarded contracts, the law, and basic human decency. Since they’ve already disturbed the Court with their nonsense, here’s my list of reasons why they should give me money.” These are called “counterclaims.”

First, Blushing Books denies they did anything wrong to Quill Ink/Ms. Ellis, or that they ever did anything wrong to anyone, ever. Which, of course they do. Unless you’re caught dead to rights you deny everything and basically say, “Prove it.” For the most part this is both expected and perfectly reasonable, thought I really think they are pushing it when they claim this is “not a copyright case.” It’s not a copyright infringement case, technically, but it is certainly heavily centered on copyright law. There’s a lot of other stuff which will probably seem either like they’re really pushing it or completely refutes Plaintiff’s allegations depending on which side you’re on. I’ll only say that I am not a litigator and I do not approve of some of the conventions of litigation, but that this is all pretty routine and trust me, it is mostly okay but does not overcome Plaintiff’s arguments with the sheer force of its righteous indignation.

There’s a lot of talk about how comparisons to #Cockygate are inappropriate which I think may be a little inside baseball and largely irrelevant, but hey, the Plaintiff raised them, the Defendant should respond. They also claim that copyright registrations have now been filed on all of Cain’s books – which, if they paid the $800 special handling fee means they probably have the certificates now. If not, then it will be months.

In responding to the copyright-based allegations, Blushing’s response is basically, “Nuh-uh, you are too a dirty rotten copyright thief.” Which, again, is to be expected. At this point it is a matter of opinion. This answers the copyright misuse allegations and the request for a declaratory judgment. If there was copyright infringement, then not only should there not be a declaratory judgment that there wasn’t, Quill Ink/Ellis should be liable for damages.

And in particular, they deny having filed a DMCA notice against Book 3 in Ellis’s series before it was published. Again, if true, huge point for Blushing Books, because if they had done that, it would have been very difficult to talk themselves out of.

Blushing also points out that hey, we didn’t make any of the allegedly defamatory or tortious statements or actions, not that they were defamatory or tortious, that was Cain. This is both fair (assuming it’s true) and relevant. The DMCA notices, assuming they were filed in good faith, cannot be defamatory according to Blushing Books. I think, making that assumption, that that’s a very good point. It’s not defamatory to make true statements, or (most of the time) to make statements you honestly believe to be true. They also get into whether Ellis is a (limited) public figure and so actual malice which in fact doesn’t really have anything to do with malice should apply and I’m not getting into that. Suffice to say, they have many alleged refutations of and defenses to the allegations of defamation.

But, Blushing Books then says, you wanna talk defamation, let’s talk about the fact that Quill Ink/Ellis have been telling everybody we’re a veritable fountain of illegitimate DMCA notices when in fact this is the second time we’ve ever used them in thirteen years of publishing. I have no idea if that’s true or not, but if it is, point for Blushing Books. They go on to say it’s also defamatory to accuse them and/or Ms. Cain of review manipulation when of course they do no such thing, that would be wrong, and all authors ask their fans to post reviews, that’s perfectly okay. Which, true, but some of those posts from Cain make the allegation that this is untrue and thus defamatory really iffy in my opinion. But again, that was Cain, not Blushing Books.

Regarding the negligence claims, Blushing Books denies any duty of care to Quill Ink/Ellis, which is a required element of negligence. (The usual summary law students learn is “duty, breach of duty, proximate cause, damages.”) They almost certainly didn’t have any specific duty of care toward Quill Ink/Ellis (point for them) but everyone has an ordinary duty of care not to do bad things which could hurt others (point against them.) That will have to be argued later. And of course they deny they did anything bad in the first place.

With regard to the tortious interference claims, Blushing Books claims they acted reasonably and as required by law to provide the takedown notices, and that any information or action which might have caused problems for Quill Ink/Ellis were made necessary by her own bad acts. So they did nothing wrong, and of course it made Ellis look bad to go around stealing copyrighted works, what did she think would happen? This will have to be argued later. But assuming one believes Blushing Books acted reasonably and in good faith, this is actually a pretty good general response – it isn’t tortious interference to protect your own rights as allowed by law.

The response to the False Light claims is basically a combination of the Defamation and Tortious Interference responses – we didn’t do anything bad, and to the extent we said things that made you look bad, they were both true and a response to your own bad acts.

Ultimately, after having detailed why they did nothing wrong, and having included in these defenses descriptions of the wrong acts of the Plaintiff, the Defendants ask the Court to dismiss the Plaintiff’s lawsuit, to give them costs and fees, and for any other appropriate relief. Notably they do not specifically ask for defamation damages, or for copyright infringement damages. It’s merely implied that they could have. Without the certificates on some of the books, after Fourth Estate, they can’t ask for damages on those, and they obviously don’t want to get into an actual copyright claim against Quill Ink/Ellis.


Fourth Issue: We Can Do Better

Blushing Books’ response seems to go out of its way to represent what is happening as a personal spat between Cain and Ellis. Which, fine, if that’s your theory of the case. But it also goes out of its way to not only refer to Ellis by her legal name, but refers to both Cain and Ellis by their first names, in a very inconsistent way. That is belittling, in my opinion. Especially as these are both female-identifying authors. Referring to anyone, and women in particular, by their first names in formal/business settings is diminishing. At the very least it’s bad drafting because you should refer to parties (and everything else) consistently in legal writing. Don’t do that.

I will add that anybody who thinks I am a Professional Offense-Seeker or a White Knight has only to read my blog or my Twitter feed to realize that I am… not. But we have to do better than this. Characterize them as immature squabblers, fine, if you believe that. But we are officers of the Court and we need to be professional. Advocacy does not require, nor should it include, this sort of thing.


Another thing, not really specific to the topic at hand but which I’m going to address since I just talked about drafting, I saw was some back and forth with Blushing Books’ Answer being struck and refiled as amended. As I said before, I am not a litigator, so I will keep my critique of the actual litigation proceedings both general and brief. I’ll say only that a) neither party has exactly covered themselves in glory with regard to their precision document drafting, and b) this is extremely common and shouldn’t be taken as some sort of indication that the lawyers on either side are incompetent or are covering for a weak case in and of itself. This is hard work, complicated work, with tight deadlines and a lot of pressure. Mistakes are made. They are corrected. It’s part of the system.

So, in summary:

1) Ms. Cain is out of the suit now and for the foreseeable future.
2) Blushing Books has agreed to be sued in Oklahoma, but denies everything in controversy, asserts that Ms. Ellis’s books are in fact infringing on Ms. Cain’s and therefore everything they did was just fine.
3) Blushing Books isn’t asking for damages at this time, but thinks this whole thing is a lot of nonsense and they should be compensated for their costs and attorney’s fees, and that no declaratory judgement, injunctive relief, or so much as a bent ha’penny should be awarded to Quill Ink.

By the way, while I love doing this sort of education and outreach, I’m trying to start a law practice here, and it really helps encourage me if people express their appreciation tangibly, so to speak. So if you could see your way fit to dropping me a Ko-Fi donation or two (click here to send) I would really appreciate it. If you can’t, I understand and I still hope you found this interesting and educational. And of course if you are in need of legal services, please reach out! (Information on retaining me is here: Hiring Me As Your Attorney.)

As always, questions and comments are welcome here, on Twitter (@legalinspire) or by email (marc@legalinspiration.com). Thanks for reading!

M

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