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The Worst Things For Sale is Drew's blog. It updates every day. Subscribe to the Worst Things For Sale RSS!

The Worst Things For Sale is Drew's blog. It updates every day. Subscribe to the Worst Things For Sale RSS!

The Worst Things For Sale is Drew's blog. It updates every day. Subscribe to the Worst Things For Sale RSS!

The Worst Things For Sale is Drew's blog. It updates every day. Subscribe to the Worst Things For Sale RSS!

The Worst Things For Sale is Drew's blog. It updates every day. Subscribe to the Worst Things For Sale RSS!

The Worst Things For Sale is Drew's blog. It updates every day. Subscribe to the Worst Things For Sale RSS!

Posted by Victoria Strauss for Writer Beware®


Early in 2019, seventeen writers were recruited to participate in a box set of medical thrillers, called (with unforeseen irony) Do No Harm.

The buy-in: $750, with net income from sales going to two designated charities, and participating writers receiving a pro-rated share of any net income above those contributions. The goal: through cooperative marketing efforts, to get the set on the USA Today bestseller list.

Here's how the opportunity was presented to potential participants (this is from an email that was shared with me):


In other words, right off the bat, authors were being primed not to expect to make money.

Helming the endeavor was a five-year-old PR company called Genius Media Inc., owned by a man called Wid Bastian (full name: Widtsoe T. Bastian). Per this long 2017 discussion on KBoards, one of Genius Media's not-so-genius MOs was to cold-contact writers by form email and offer glowingly-described Kindle Unlimited promotions. "For you, my estimate on an eBook promo is 10,000 plus downloads and 700 plus sales, positive ROI right out of the gate and huge page read income."

The cost: $2,000.

KBoards members urged caution, especially after expert analysis of Genius's claims indicated that its promotions weren't as successful as it advertised, and information offered by a writer who'd paid for a promo suggested that Genius was violating the TOS of the advertising platforms it used. Also noteworthy: this post from a writer who bought two promos from Genius, and lost money on each one. "That is what Genius Media told me to expect, that the first promo would not show a profit, but that by the second or third promo, they would show a profit." (The writer bought a third promo.)

As it turns out, these concerns were a sign of things to come.

Do No Harm was published, as promised, and made the USA Today bestseller list, also as promised. On October 3 (or possibly October 4), it was unpublished--three (or possibly four) days after the contractually-stipulated end date of September 30.

Per the contract (which you can see here), final reporting and payment was due to authors "no later than December 1". December 1 came...and went. Bastian promised anxious authors they'd get everything by December 15.

One day past that deadline, they did receive a report...but not from Genius Media. Between early December and December 16, with no notice or warning, a company called Kairos Phoenix had purportedly acquired Genius. Other than its business registration--in Wyoming, just like Genius's--and hometown--Logan, Utah, again just like Genius's--Kairos was a black box, with zero web presence. It had incorporated less than a month earlier, on November 22. (You can see the report here.)

That wasn't all that was suspicious. Here's Kairos's financial breakdown:


In other words, USA Today bestselling box set Do No Harm hadn't just failed to make a profit, it had lost money. But...where was the revenue from the $750 buy-in fees--which, with 17 authors, totaled $12,750? (Kairos's explanation: it wasn't included because it was "ordinary income" for Genius Media. "As stated in the contract, the fee was paid to 'participate' in DNH Collab by the author and for no other purpose".) Where were revenues for the days the set had been on sale past the unpublish deadline? (Kairos: "The contractual period for DNH Collab was strictly defined in the contract" as September 30, so any revenue past that date was "irrelevant".)

Equally troubling, why were there more than $15,000 in expenses--three-quarters of which were for "labor"--when the contract stipulated that expenses were not to exceed the total of the buy-in fees? According to Kairos, this wasn't really an expense cap: "This provision was specifically and intentionally included in the contract language to avoid the possibility of a 'cash call' – Genius Media asking authors to contribute more to DNH Collab to achieve the goal of making USA Today Bestseller status. No 'cash call' was ever made in the DNH Collab."

Here's the actual contract wording, though (my bolding):

For the purposes of the USA Today Bestseller Medical Thriller Author Publishing Collaborative Boxed Set program, Genius Media shall not incur any publication and promotion expenses of any nature in excess of the fees paid under the terms of its author agreements and shall have no power to obligate [redacted] or any other author for any publication and promotion expense above author fees paid whatsoever.

There's a "cash call" prohibition and an expense cap. But Kairos wanted writers to believe otherwise, so it could inflate expenses and ensure a loss.

It was obvious to Do No Harm participants that Kairos was taking the money and running--avoiding the substantial payouts it would otherwise have to make by retroactively interpreting contract language, and also enabling Bastian himself to claim he was blameless because of Genius's supposed takeover by an unrelated company. (No one was under any illusion that Kairos Phoenix was anything other than Bastian in a different guise.)

Authors were furious. On December 22, two of them, Christoph Fischer and Dan Alatorre, went public with their experience. Others posted warnings on Kairos's corporate business listing.

Do No Harm isn't the first time Bastian has run this scheme, either.


The box set in question appears to be Tales From Big Country, which was published around the same time as Do No Harm. A third set, Galaxia, was pubbed in September, with profits supposedly going to the Well Aware clean water charity. I've been told that Bastian is recruiting for other sets, including a collection of thrillers.

So who is Wid Bastian, a.k.a. Widtsoe T. Bastian?

His LinkedIn profile ("EXPOSE your new book to develop your author brand and sell more books!") identifies him as the owner of Genius Media, and also of an ebook promotion program called Book Dynamite. In an earlier profile on a freelancers' job site, he describes himself as a "published novelist and screenwriter" (more on that below) who "makes most of my daily bread as a ghostwriter." He also has an IMDB profile, presumably because of his efforts to make a film of the life of Greek Orthodox priest Fr. Themi Adamopoulos.

Genius Media's website has been taken offline, but traces remain in the form of cached pages, and here's how it looked in January 2016, courtesy of the Internet Archive (more recent versions haven't been archived). The company has a D+ rating from the BBB. Bastian also owned or was an officer with at least three other companies during the early to mid-1990s: Off & Flying, Prospex Interntaional [sic] (yes, it really was registered with a typo in the name), and Nevada Pension Investment Fund. Both Off & Flying and Prospex had their statuses "permanently revoked" a few years after incorporating. All three are long dead.

There is also a Widtsoe T. Bastian who pleaded guilty to 13 felony counts including embezzlement, money laundering, and bankruptcy fraud in US District Court in North Carolina, and in 2005 was sentenced to one hundred and forty-four months in prison and restitution of more than $3,000,000. Nothing I can find online directly connects Widtsoe T. Bastian of Genius Media to Widtsoe T. Bastian of North Carolina, so it may be a different person. But Widtsoe T. Bastian is quite an unusual name, as a websearch will make clear.

Finally...I can't say "what goes around comes around", since this pre-dates the ripoff that's the subject of this post, but it certainly seems like a case of advance karma: Bastian's own 2010 novel, Solomon's Porch, was published by none other than Tate Publishing & Enterprises, a notorious vanity publisher that scammed thousands of authors and a multitude of staff, and whose owners pleaded guilty in 2017 to an array of felony charges very similar to the ones described in the previous paragraph.

Tate authors suffered terribly at the hands of their unscrupulous publisher, but Wid Bastian is one Tate author I can't feel all that sorry for.

UPDATE 12/31/19: PACER was down yesterday, so I wasn't able to do a case search. I did so this morning, and here's what's there for Widtsoe T. Bastian:


Some of the listings are redundant, and several cite court documents without any links to those documents. But there's enough available to paint a tangled picture of a 1995 Chapter 11 bankruptcy in Nevada involving several companies in addition to the three mentioned above (the case was finally closed in 2002); a 1999 indictment in Nevada "on charges related to the operation of [Bastian's] venture capital firm"; failure to appear in a Nevada court in 2001; and a 2002 arrest in North Carolina, leading to the plea of guilty on 13 felony counts referenced above.

In 2012, Bastian was placed on probation or supervised release, and jurisdiction over his case was transferred to US District Court for Utah. His probation ended on May 4, 2015.

UPDATE 2/21/19: I'm featuring this comment from yesterday, as it's more indication of a pattern (the commenter has shared documentation with me that confirms what they say below):

In 2013-15, I hired Mr. Bastian as a ghost writer and later co-author of a novel we wrote together called Henry and Tom, sold through Amazon/Kindle Direct Publishing (KDP).

In mid 2015, Mr. Bastian embezzled money from a joint bank account we opened to pay for marketing campaigns for Henry and Tom. Rather than pursue embezzlement charges, I hired an expensive lawyer in Washington DC to transfer all rights for Henry and Tom to me in exchange for a $4K payment to Wid and a non-disparagement clause for both of us. This seemed at the time like the most expedient and cost effective way to deal with all the problems Mr. Bastian had caused.

I thought this matter was concluded until recently when Amazon/KDP informed me that a debt collection firm had placed a lien on Henry and Tom due to a bankruptcy filed by Wid Bastian/Genius Media Inc. KDP is currently sending my royalties to the collector per the lien. I have filed formal complaints with Attorneys General in Connecticut, New Jersey, and New York in an attempt to have the lien removed in states where the debt collectors are registered. I have also filed formal complaints against Wid and Genius Media Inc. with the Attorney General of Utah and the County Attorneys Office in Providence, Utah.

I think blogs like this are creating awareness of the depth and extent of Wid’s continuing criminal activities so we can all work together to stop him from doing this to others and get him to face justice.

You'll note a reference to a bankruptcy. Wid Bastian filed a Chapter 7 bankruptcy petition on January 13, 2020.


A number of victims of his box set schemes are listed as unsecured creditors; if you're one of them, you should have received a snail mail notice, but if you haven't, and are wondering if you're included, here's the Certificate of Notice, with all Bastian's claimed creditors.

The bankruptcy filings also confirm what everybody already knew: Kairos Phoenix was Wid Bastian. The reason he set up this company probably won't surprise you, either.

Posted by Victoria Strauss for Writer Beware®

The enormous digital archive that is the Internet Archive encompasses many different initiatives and projects. One of these is the Open Library Project, a huge repository of scanned print books available for borrowing in various digital formats.

Unlike a regular library, the IA does not purchase these books, but relies on donations to build the collection. Nor are permissions sought from copyright holders before creating the new digital editions. And although the IA claims that the project includes primarily 20th century books that are no longer widely available either physically or digitally, the collection in fact includes large numbers of 21st century books that are in-copyright and commercially available--and whose sales the Open Library's unpermissioned versions have the potential to harm.

Most professional writers' groups consider the Open Library to be not library lending, but massive copyright violation. Many have issued alerts and warnings (you can see SFWA's alert here), and many authors have contacted the IA with takedown requests (to which the IA was not always terrific at responding; you can see my account of my own frustrating experience here).

In the fall of 2018, a novel (and disputed) legal theory was created to justify the Open Library and similar initiatives, called Controlled Digital Lending (CDL). CDL's adherents present it as "a good faith interpretation of US copyright law for American libraries" seeking to conduct mass digitization projects, and invoke as support the "exhaustion" principle of the first sale doctrine (the idea that an authorized transfer of a copyrighted work "exhausts" a copyright holder's ability to subsequently control the use and distribution of  that copy; this is what allows used book sales, for example) and the fair use doctrine (a complex principle that permits the copying of a copyrighted work as long as the copying is limited and transformative). As long as the library restricts its lending in ways similar to restrictions on the lending of physical books (for instance, allowing only one user at a time to access each digital format), CDL holds that creating new digital editions of in-copyright books and lending them out is fair use, and copyright holders' permission isn't necessary.

Libraries in particular have embraced CDL. Publishers' and writers' groups...not so much, especially in light of a recent legal decision that rejected both the first sale doctrine and fair use as basis for re-selling digital content. Here's the Authors Guild:

CDL relies on an incorrect interpretation of copyright’s “fair use” doctrine to give legal cover to Open Library and potentially other CDL users’ outright piracy—scanning books without permission and lending those copies via the internet. By restricting access to one user at a time for each copy that the library owns, the proponents analogize scanning and creating digital copies to physically lending a legally purchased book. Although it sounds like an appealing argument, the CDL concept is based on a faulty legal argument that has already been rejected by the U.S. courts.

In Capitol Records v. ReDigi, the Second Circuit held that reselling a digital file without the copyright holder’s permission is not fair use because the resales competed with the legitimate copyright holder’s sales. It found that market harm was likely because the lower-priced resales were sold to the same customers who would have otherwise purchased new licenses. In this regard, the court emphasized a crucial distinction between resales of physical media and resales of digital content, noting that unlike physical copies, digital content does not deteriorate from use and thus directly substitutes new licensed digital copies.

The same rationale applies to the unauthorized resale or lending of ebooks. Allowing libraries to digitize and circulate copies made from physical books in their collection without authorization, when the same books are available or potentially available on the market, directly competes with the market for legitimate ebook licenses, ultimately usurping a valuable piece of the market from authors and copyright holders.

For a more detailed deconstruction of CDL's arguments, see this statement from the Association of American Publishers.

Flash forward to 2020, and the coronavirus pandemic crisis. Last week, the IA announced the debut of the National Emergency Library--really just the Open Library, but with some new provisions.

To address our unprecedented global and immediate need for access to reading and research materials, as of today, March 24, 2020, the Internet Archive will suspend waitlists for the 1.4 million (and growing) books in our lending library by creating a National Emergency Library to serve the nation’s displaced learners. This suspension will run through June 30, 2020, or the end of the US national emergency, whichever is later.

During the waitlist suspension, users will be able to borrow books from the National Emergency Library without joining a waitlist, ensuring that students will have access to assigned readings and library materials that the Internet Archive has digitized for the remainder of the US academic calendar, and that people who cannot physically access their local libraries because of closure or self-quarantine can continue to read and thrive during this time of crisis, keeping themselves and others safe.

What this boils down to, under all the high-flying verbiage: the IA is ditching the one-user-at-a-time restriction that is one of the key justifications for the theory of controlled digital lending, and allowing unlimited numbers of users to access any digitized book in its collection.

The Authors Guild again, on how this harms authors:

IA is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. It has misrepresented the nature and legality of the project through a deceptive publicity campaign. Despite giving off the impression that it is expanding access to older and public domain books, a large proportion of the books on Open Library are in fact recent in-copyright books that publishers and authors rely on for critical revenue. Acting as a piracy site—of which there already are too many—the Internet Archive tramples on authors’ rights by giving away their books to the world.

Here's just one concrete example. Katherine Harbour's Nettle King is available for borrowing in the National Emergency Library as a scan, an EPUB, and a PDF (the IA's EPUB versions are OCR conversions full of errors). Published in 2016, it's also "in print" and available on Amazon and other online retailers as an ebook, in addition to other formats. The IA, which never bought a digital license to Ms. Harbour's book and scanned and uploaded it without permission, now is proposing to allow unlimited numbers of users to access it, potentially impacting her sales. How is this any different from a pirate site?

Announcement of the National Emergency Library has been greeted rapturously by the press and by libraries. Less regarded has been the flood of protest and criticism from authors and professional groups. In situations like these, authors and publishers tend to be dismissed as greedy money-grubbers who are putting profits ahead of the march of progress and the noble dream of universal access to content...despite the fact that authors' right to make money from their work--and, just as important, to control the use of it--springs directly from the US Constitution, and has been enshrined in law since 1790.

In response to the outcry over the National Emergency Library, the IA has issued a justification of it, citing the "tremendous and historic outage" of COVID-19-related library closures, with "books that tax-paying citizens have paid to access...sitting on shelves in closed libraries, inaccessible to them." This noble-sounding purpose conveniently ignores the fact that those libraries' (legally-acquired and paid-for) digital collections are still fully available.

If your book is included in the National Emergency Library, and you don't want it there, the IA will graciously allow you to opt out (another inversion of copyright, which is an opt-in system).


Hopefully they'll be more responsive than they were in 2018, when I sent them DMCA notices that they ignored. Or later, when they began rejecting writers' takedown requests by claiming that the IA "operates consistently with the Controlled Digital Lending protocol.”


I've covered this question above, but I want to highlight it again, because it's such a persistent objection when this kind of infringement occurs: Brick-and-mortar libraries lend out books for free, so how are the IA's "library" projects any different?

A few reasons.

- Brick-and-mortar libraries buy the books they lend, a separate purchase for each format (hardcover, paperback, ebook, audiobook, etc.). The author gets a royalty on these purchases. The IA seeks donations, and lends those. Authors get nothing.

- Brick-and-mortar libraries lend only the books they purchase. They don't use those books to create new or additional, un-permissioned lending formats. That's exactly what the IA does. Moreover, one of its additional lending formats is riddled with OCR errors that make them a chore to read. Apart from permission issues, this is not how authors want their books to be represented to the public.

- People who advocate for looser copyright laws often paint copyright defenders as greedy or mercenary, as if defending copyright were only about money. It's worth remembering another important principle of copyright: control. Copyright gives authors not just the right to profit from their intellectual property, but to control its use. That, as much as or even more than money, is the principle the IA is violating with its library projects.

UPDATE: It appears that the IA--on its own initiative--is removing not just illegally-created digital editions in response to authors' takedown requests, but legally-created DAISY editions as well, even where authors don't ask for this (DAISY is a format for the visually impaired, and like Braille, is an exception in copyright law and is also permissioned in publishing contracts).


It did the same thing in 2018, even where the takedown requests specifically exempted DAISY editions. I don't know if the current removals reflect expediency or possibly are just a kind of FU to writers (and, indirectly, to disabled readers), but if you send a removal request to the IA, you might consider specifically asking them not to remove any editions for the blind and disabled (which, again, are legal for the IA to distribute).

UPDATE 4/2/20: The Authors Guild has issued a statement encouraging writers to demand that the Internet Archive remove their books from its National Emergency Library. The statement includes instructions on what to do, along with a sample DMCA notice in the proper legal form.

UPDATE 4/8/20: SFWA has issued a statement on the National Emergency Library, describing the legal theory of Controlled Digital Lending as "unproven and dubious". (A link to SFWA's DMCA notice generator is included.)

[U]sing the Coronavirus pandemic as an excuse, the Archive has created the “National Emergency Library” and removed virtually all controls from the digital copies so that they can be viewed and downloaded by an infinite number of readers. The uncontrolled distribution of copyrighted material is an additional blow to authors who are already facing long-term disruption of their income because of the pandemic. Uncontrolled Digital Lending lacks any legal argument or justification.

UPDATE 4/9/20: The Chairman of the US Senate Subcommittee on Intellectual Property, Thom Tillis, has sent a letter to the Internet Archive, pointing out the many voluntary initiatives by authors, publishers, and libraries to expand access to copyrighted materials, and expressing concern that this be done within the law. 

I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your "Library" is operating outside the boundaries of the copyright law that Congress has enacted and alone has the jurisdiction to amend.

The letter ends by punting "discussion" until "some point when the global pandemic is behind us." So, basically, carry on and maybe at some point we'll talk.

UPDATE 4/15/20: Internet Archive founder Brewster Kahle has responded to Sen. Tillis's letter, claiming that the National Library is needed because "the entire physical library system is offline and unavailable" (even though libaries' legally acquired digital collections are still fully available) and that "the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances" (there's no such language in the actual Fair Use statute).

Kahle also notes:

In an early analysis of the use we are seeing what we expected: 90% of the books borrowed were published more than ten years ago, two-thirds were published during the twentieth century. The number of books being checked out and read is comparable to that of a town of about 30,000 people. Further, about 90% of people borrowing the book only looked at it for 30 minutes. These usage patterns suggest that perhaps that patrons may be using the checked-out book for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves.

But this is hardly a compelling argument. Large numbers of these books are certainly still in copyright, and many are likely still "in print" and commercially available (in digital form as well as hardcopy). Just because a book was published more than ten years ago or prior to 2000 doesn't magically cause it to become so hard to find it must be digitized without permission in order to save it. "But they're older books" sidesteps, rather than addresses, the thorny copyright issues raised by the IA's unpermissioned scanning and digitizing.

This passage also tacitly confirms the IA's abandonment of the one-user-at-a-time restriction that is a key feature of the rationale for the Controlled Digital Lending theory. If the basis for your enterprise is a legal theory whose strictures can be jettisoned at will, how credible is that theory really?

Kahle also claims that "No books published in the last five years are in the National Emergency Library". As it happens, the example I provide above (Katherine Harbour's Nettle King) handily disproves this statement: it was published in 2016, and was digitized by the IA in 2018 (you can see the scan here). I seriously doubt it's the only instance. Either Kahle is being disingenuous, or he doesn't know his own collection.

As a sop to creators, Kahle reiterates that concerned authors "need only to send us an email" and their books will be removed. As I've pointed out above, this is yet another inversion of copyright law, which explicitly gives creators control over the use of their work. In other words, it's the IA, not authors, who should be the petitioners here.

UPDATE 4/16/20: This terrific, comprehensive article from the NWU's Edward Hasbrouck examines the multiple ways the Internet Archive is distributing the page images from its unpermissioned scanning of print books--"[o]nly one of [which] fits the Internet Archive’s and its supporters’ description of so-called Controlled Digital Lending (CDL)."

omg

In this week's Pagan Community Notes, Pagan Spirit Gathering has been canceled, indigenous shaman and actor Antonio Bolivar joins the Ancestors, Sacred Well announces changes in leadership, and more!

Continue reading Pagan Community Notes: PSG 2020 canceled, leadership change within Sacred Well, indigenous shaman and actor Antonio Bolivar crosses Veil, and more! at The Wild Hunt.

3rd season of shorts promoting city in Chiba prefecture airs on July 6

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A cheap, lightweight smartphone-heated device can test for DNA in blood, urine and other samples in a fraction of the time it takes to test in a lab

Half a million people taking part in the UK Biobank, which gathers genetic information for researchers to study, won't be told if they turn out to be genetically vulnerable to the coronavirus

Coffee has been linked to changes on our DNA that affect how active certain genes are. The finding may help explain some of coffee's touted health benefits

New York has released more details into who has tested positive for the coronavirus in the state, and Governor Andrew Cuomo said the per cent of healthcare workers with Covid-19 is not higher than the general public.“That is amazingly good news,” Mr Cuomo said during his press briefing on Thursday.

Experts still aren't sure why some coronavirus cases are so much worse than others, but the answer may lie in patients' genetic differences.

Despite President Trump's statements that the coronavirus was released from a laboratory in Wuhan, scientist say the evidence points to a natural origin.

Are dentists open for emergency care, and other questions answered by BBC experts.

Boris Johnson says doctors had planned what to do if his coronavirus treatment went "badly wrong".

The former Unite official says it is the "right time" to move on with the party under new leadership.