11 Comments

1) I’ve now closed the comment thread at the original post, which is a week old. Participants are free to use the comments to this post to continue the thread.

2) Some of the arguments on this topic have been tending toward the personal and acrimonious. Both newcomers and longtime visitors are reminded that ours is a moderated comments section and I’m quite willing to start deleting posts if we can’t keep things on a constructive plane.

Sorry if I was one of the ones who came across as making personal attacks. If I was I didn’t mean to.

It strikes me that the people who have been defending the suit seem to have been alleging that (a) some books benfit from being labeled AA-interest, and (b) this book was not one of them.

The suit, then, turns on whether the mislabeling was part of a general, and purposeful, steering of black-authored books into the AA-interest section, at the expense of their widespread sales.

If there is such a general practice, and it does hurt sales, the defendant is indeed at fault. If it doesn’t decrease sales, then no one has been hurt and there’s nothing to complain about.

If the former is true, then we must return to the money issue, even if BSA Pontif doesn’t want to. This particular author, on this particular book, is highly unlikely to have lost more than $25-50,000, so the $250 million sued for must be symbolic of the frustration and anger of the other black writers so marginalized. In that case, I suggest:

1) File more suits, or a class-action, rather than filing one suit for a 1,000-fold markup.

2) Open up a publishing house that releases black-authored books under the “general interest” label and capture this missing market.

I agree with Walter Olson. The other discussion was bordering on slander (good thing Overlawyered readers are generally not wild about suing over it).

I don’t understand why the discussion veered so far into racism. No one really answered my question of how can a “black interest” section be racist against blacks? If it is discriminatory, its certainly against whites, since there is no similar “white interest” category. If black authors are being “ghettoized” (as one post put it) by this category, then why don’t black activists push to get rid of it?

Now how about some people consider this alternative explanation just for a moment: Rather than intentional racism, maybe the publisher was just being sloppy and assumed the book was “black interest” because the author’s name was black? Now if that’s true, I guess they did make some kind of mistake, but since no one suffered any death or bodily injury of any kind, a $250 million dollar demand is greedy, obscene, and outrageous. I have served in Iraq and been to third world nations and seen real suffering. This isn’t it.

I just read through the previous thread and now the complaint, and my thoughts are:

1. For a pro se plaintiff, albeit an author, the complaint is reasonably well-drafted. But it does raise the question: why is she going it alone? Isn’t it going to be expensive for her to litigate on her own, in New York, far from her residence in Florida? If I were her, I’d definitely retain local counsel, if possible. The obvious inference, though by no means certain, is that no lawyer would take her case.

2. Assuming that Ms. Black’s allegations are true, her damages are likely minimal at best. This point seems to be lost on the pro-Millenia-Black crowd, who have taken umbrage with the publisher’s behavior. Is it a bad thing if the publisher wants to change the race of Ms. Black’s characters in order to make the book more marketable to African-Americans? While, technically it may fall into the “racist” category (i.e., they wouldn’t ask a white author to do the same, as the complaint alleges), isn’t the goal to sell more books?

3. In addition, I don’t think anyone has considered that an “African-American Interest” niche applies not only to the subject matter of the book, but also to the author. Is there not a market for those who wish to support African-American authors, regardless of subject matter? I agree that this may be a racist niche, but it’s one that society has deemed acceptable.

I also found that this blog entry has a good, civil discussion about the issues in the comments.

JHS –

No one really answered my question of how can a “black interest” section be racist against blacks?

This is one of the tougher questions we all have to answer. If a person’s work is “pigeonholed” because of their race, that would be a type of racism. If I were to say to you that your work as a lawyer would only appeal to clients of your race, you would certainly claim that was a racist policy. That is the easy one because the race factor has a negative impact on you or even, it can be argued, the person receiving the service.

The problem comes in when people seek out products and services from a certain race. For instance, there is always talk “supporting your own” when it comes to race. In addition, there are educational institutions that give reading assignments or studies based on race. Is that not racist as well?

At one point in time it seems that having a “African American” section in bookstores was a good idea as we have to acknowledge there were those in the publishing industry who refused to believe that black authors had anything to say or were economically beneficial. That time has long since passed. It is time to judge works on the quality of the work, and not the race of the author or characters contained within a work.

I have to pop my head in once more to echo Gitarcarver. This is so worth repeating.

It is time to judge works on the quality of the work, and not the race of the author or characters contained within a work.

I feel comfortable saying that anyone who disagrees with that statement is being counterproductive to equal treatment without regard to race….and that would be a certain shame.

As to Penguin’s answer. In addition to the obvious struggle to give those replies, the hair-splitting and clear self-contained contradictions, I think #16 makes it pretty clear that, in this case, Goliath doesn’t have very much leg to stand on.

Civil people have always pride themselves on prudent reciprocation when arguing issues, it is a salutary experience in an exchange.

This subject under discussion here is primed with temptation to get personal, and understandably so. Because even prudent people (like some low tempered puppies) are emotionally aroused, when they have sensed that their being is under attack. My friend, so it is when rights and privileges are deprived of, hinged on the basis of racial apartheid.

Here’s clearly an absurd legal excuse that I find highly deceptive, aimed at blurring the eyes of simple minded people. Said in the following:

“The _distributors_ are the ones who demand “pigeonholing” of books, and Penguin’s best defense will be to point out that books that are released _without_ a category tend to stay in distributors’ warehouses unshipped.”

This opinion concludes that MB’s complaint should be dismissed for failure to join an “indispensable party”. I guess it’s calling “Distributors” an indispensable party to the case.

A superseding legal point of view is this: Publisher’s attorney has filed an answer to the [R]idiculous complaint, (now available to readers) and they in all legal wisdom have not thought of the above opine as grounds for dismissal of the case… or else it would have been made I believe. Oh, the publisher seems to have made a big mistake, not having this authoritative lawyer for their defense counsel, haven’t they?

“Civil people have always pride themselves on prudent reciprocation when arguing issues, it is a salutary experience in an exchange.”

You say that, after calling me a racist because of “cryptic” racist statements I supposedly made that you still haven’t so much as pointed out to me. You want civil? BE civil.

“That time has long since passed. It is time to judge works on the quality of the work, and not the race of the author or characters contained within a work.”

I would be fine with that… but that door swings both ways. To be consistent, the “African American interest” category would have to be removed.

I would PREFER that, actually. Segrating by race is always a bad idea. (The Congressional Black Caucus, for instance.) Actually, IMO, checking race at all for anything is a bad idea (with the possible exception of the medical field, as race is essentially “family history” writ large, but even then, it would have only a very few and constantly diminishing applications).

I can accept the existence of AA-interest books. I’ve got several clusters of black friends, and there are books that each cluster is interested in but leave me cold. There is a specifically black culture in the USA (by which I mean a culture primarily composed of black people, not one that encompasses every black person), and it surely produces literature primarily of interest to that culture.

In this day and age of the long tail, viral marketing, and Amazon.com recommended lists, however, I think all genres are faltering as a signalling device for buyers. If indeed the publishing world is discriminating against blacks by this means, it’s a discrimination tactic with a limited shelf life.

That said, I’m still comfortable with a lawsuit going forward alleging what this suit alleges (this sort of thing is open to abuse, and really ought to be settled in contract negotiations, but pales in egregiousness to almost everything else on this site). The money is what bothers me–the allegations may be true or false, but they are certainly not worth nine figures.

Legally?

I believe Deoxy and JB should rather focus more on Mr. Petit authoritative legal views– because it heightens the more defining elements of the case whether he’s right or wrong. Lets talk about that instead of endlessly chopping away at jb’s emotional haunting as he clearly expressed it when he said:

“The money is what bothers me–the allegations may be true or false, but they are certainly not worth nine figures… and for Deoxy’s:
“You say that, after calling me a racist because of “cryptic” racist statements I supposedly made that you still haven’t so much as pointed out to me. You want civil? BE civil.

The more productive thought is found in this quote below:

“Charles E. Petit said:
The _distributors_ are the ones who demand “pigeonholing” of books, and Penguin’s best defense will be to point out that books that are released _without_ a category tend to stay in distributors’ warehouses unshipped. In other words, “We had to put _some_ category on it as a business necessity, and this is the one that in our commercial judgment was the best fit.”

This is a legal forum and it’s time to chop-up the complaint and the answer given to it for our analysis and conclusions. I think this is what BSA Pontif’s been urging all of us to do, and
stop the “run-in-the-bush” kind of talk.

“I believe Deoxy and JB should rather focus more on Mr. Petit authoritative legal views”

1. You trashed his views on the previous thrad.

2. We were, until you startd calling people racists.