Why the B&N contract linking is critical #writer #writers #author

First, here is the substantive difference between a contract without live links to the appends, and one with: When you print off a PDF (at least, when you do it on a Mac—if Windows doesn’t do this, consider VERY carefully before you sign your document) the PDF notes the URL of the document on every page on the top right corner, and the date on the bottom of the page on the right-hand corner. And it paginates all the print pages of a document, so you can be sure nothing went missing.

It also preserves the live links within the body of each portion of the document. These are the elements you, the writer, need to have in hand to prove that what you think you signed is what you actually signed.

If you are called upon to testify about what you signed in court (and with any contract you sign, you must understand that this is both a real possibility and your worst-case scenario), you have the trail, in writing, with provably connected links that define every single term in the contract, the date on which you recorded each of theses appends, and their unique URLs, and all of these will match the URLs of the main document’s links.

Those live links and connections create ONE DOCUMENT.

Without them, standing in court, the other side’s lawyer can ask you, “How do you know the document you are holding in your hand refers to those terms, when your handful of unlinked documents are not even on the same website?”

And your answer will be? Anyone?

“I just assumed.”

At which point, you lose.

With the links, you present dated DOCUMENT A, with linked, paginated, and dated SUB-DOCUMENTS B, C, D, E etc, and you say, “Here is how these documents connect, so this entire collection, all bearing the same date and all linking back to DOCUMENT A, is what I signed.”

And the other side’s lawyer goes home from meeting with your lawyer, BEFORE there is a court case, because he doesn’t have a case.

Oh, but no big company would ever try to screw over a nice person like you? Ask yourself this…

Is there money in it for them if they do?

I worked as an RN for a large hospital corporation, but the place I worked was a small-town hospital, and I loved the folks I worked with (excluding the nursing administrator, who had NO hands-on experience in hospital nursing). Got along with my colleagues, got along with the docs. And I had years of experience in a tough job—I was weekend daytime charge nurse in a seven-bed ER that, on the weekends, was the Wild, Wild West.

I was at that time seven months pregnant with my second child. And I got kicked in the stomach by a combative drunk, and went into labor. Back in 1985, neonatal care was not as advanced as it is now, and there was very real chance that if I had my baby then, he would die. I called my OB, and he said, “Get home, lie on your side, drink water, it will probably be okay.” My husband came and got me, and I did that. Only it didn’t get better.

I ended up in our local hospital (not the one where I worked—ours had a better OB/GYN departement), on a mag sulfate drip, watching the regular contractions that just wouldn’t stop, listening as the woman in the delivery suite next to mine had her premature baby, and lost him. I can still hear her when she found out.

I was alone—the nurses had one emergency and I wasn’t it yet, and I was terrified. I didn’t lose my kid, though. It took a couple days to get the contractions to stop, but I eventually went home, still pregnant.

I spent the next two months on bed rest, taking medicine that routinely ran my heart rate up into the 120s. But my kid and I got through it. He was born on time, and as soon as I could I prepared to get back to work (because the emergency hospitalization and two months of not getting paid—I was a Baylor RN, no medical benefits—had killed our finances).

Only my job wasn’t there. It was supposed to have been held for me.

But the nursing administrator told me, quite happily, “Oh, you didn’t fill out an incident report, so we didn’t have to hold it.”

After I had been kicked in the stomach by the drunk, and WHILE I was in premature labor, lying on my side waiting for my husband to come get me, I did not fill out an incident report. None of my friends thought of it. The doc who kept popping in to check on me while my husband was on his way didn’t think of it. And I didn’t think of it.

The folks I worked with had seen it happen. The doctor. The nurses. They liked me. They wanted me back.

But the incident that put me into premature labor wasn’t on paper.

If it’s not on paper, it never happened.

So she had filled my slot with a much less experienced RN who was not working Baylor, saving the hospital quite a bit of money…and because I had not filled out an incident report, I had no documentation that being kicked in the stomach by that patient had started the contractions, I had no recourse.

My on-the-ground, real-world experience with contracts, agreements, and legalese goes far beyond that, both in nursing and in writing, but that was the point where I learned my lesson. Never assume that anyone but you is going to look out for YOU.

Never assume anything. If your livelihood is on the line, get everything that pertains to you in writing, make sure that every single bit of legalese is provably connected to every other single bit of legalese, keep your paper safe, make backups, and protect yourself.


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About the author: Novelist, writing teacher, on a mission to reprint my out-of-print books and self-publish my new ones.

29 comments… add one
  • Jack Jun 21, 2013 @ 4:30

    OK. I’m now officially scared. I published with Createspace. I don’t remember signing a contract. I just wanted it out there in print – I gave up on the idea of this being a money-making venture when I realised I was going to have to self-publish. I think it’s probably OK with me as long as no-one can steal my work. Any hints on this? Any idea about what I should do?

    • Holly Jun 21, 2013 @ 6:51

      I publish with CreateSpace, and went over the contract before I signed. You own the rights. If you used their ISBN, THEY own the ISBN, and are in essence your publisher—BUT you can unpublish the book at any time, put it back up on CreateSpace and other platforms with your OWN ISBN, and become your own publisher.

      And they can still change the price. That’s part of the deal.

      • Jack Jun 21, 2013 @ 7:11

        But when they change the price, it doesn’t affect my royalties, does it. that’s what they told me.
        I’ve been debating publishing the book on Kobo. Not sure it’s worth it when I haven’t sold that many copies. I also haven’t checked if I can do that or if that would give me a legal complication with Createspace (they are my publisher, it’s their ISBN). What are the benefits of also publishing in Kobo – it might reach a wider audience, but that’s all I can think of and, with only 63 copies sold, I’m not sure I will leap into bestsellerdom with it. What do you think?

  • Frauke Apr 16, 2013 @ 9:48

    One thing that has always worried me about electronic contracts like this is how PDFs can be considered concrete evidence. What’s to stop a publishing company to claim that the PDFs you’re presenting have been altered by you? After all, they’re not signed hardcopies, and altering a PDF you obtained by printing out a web page is a doddle with any DTP software…

  • Joanna Aislinn Apr 14, 2013 @ 17:53

    Wow. There is SO much to know as a writer. Even doing this F/T, I can’t seem to fathom how one is supposed to be on top of everything there is to know, self-pubbed or not.

    I so appreciate the communities. Wish we could all provide as much time as we do support and information.

    Thanks, Holly, and everyone who has enriched this post (and others before it) with the valuable information added by comments.

    That’s why I keep coming back.

    • Joanna Aislinn Apr 14, 2013 @ 17:55

      Not that I’m doing this F/T. Far from it, unfortunately. I meant there just doesn’t seem to be enough time in a day, whether doing this F/T or not.

      Thnx again!

  • friar john slate Apr 14, 2013 @ 2:31

    Don’t shortchange yourself. Pay for good legal counsel. Have everything in writing. Have both parties sign every page, not just the last page where you are asked to affix your signature. If the last page has a lot of empty space, draw a line at the end and indicate “Nothing follows.” Secure at least two signed and duly notarized copies and store them in different locations (fire precaution). No need to sign it in blood. Too creepy, even if you’re just after DNA evidence.

  • Bob Watt Apr 13, 2013 @ 20:58

    Hi Holly. In my opinion (for what it is worth) a contract should have all the relevant information within that document. None of it should be an external link. Having external links is akin to having a contract that has references to another document that may or may not exist. Having signed a few contracts recently (house and car purchses) I would be aghast if the seller (loan officer etc) had indicated that pertinent information pertaining to the contract could be found elsewhere. B&N have been in business long enough to know what is good business practice and what is not. A contract is a legal document… not documents.

  • Kevin O. McLaughlin Apr 13, 2013 @ 15:53

    Holly, you’re making some assumptions here, some of which are dangerous.

    First off, you’re assuming that links to other pages in a printed PDF are better than simply printing off documents listed in a PDF. You are incorrect in that assumption; there is no legal variance between the two.

    In other words, whether the document has links to the external documents or not is irrelevant if the case goes to court; what will matter is whether or not you have copies of those documents.

    No, you should NOT assume that any contract is OK.

    You should print off the contract. AND all ancillary documents referred to in the contract, because any document referred to in the contract IS PART OF THE CONTRACT, whether it is linked to in the contract or simply mentioned.

    Your dangerous assumption is that the links make it all one document. This is not true. Those other documents are additional terms and policies being referred to by the primary contract.

    In other words, they can be changed at will, without informing you. (The TOS in this agreement says you have 30 days for those changes to take effect.) That’s the point of having ancillary documents like this; so that the company can make changes, and not have to change the primary contract at all.

    In other words, when you sign this agreement, or KDP’s agreement, or most other modern agreements, you are signing saying you agree to what those ancillary documents say – even if those ancillary documents are later changed. Yes, this sucks. The only answer is to stay on top of changes, check regularly to ensure the terms you agreed to are still the terms being offered, and stay in contact with other writers as well.

    It is not one document. It is one terms of service, with multiple ancillary documents. Whether it is hyperlinked or not doesn’t matter. What matters is understanding the nature of contracts which refer to outside documents, and staying alert to changes to those ancillary documents down the road.

    (And I’m sorry about your horrific experience. This is one area where I’m glad lawsuits are more doable in the US today. Although I’m against frivolous suits, that would have been anything but – and in 2013, a mom with that scenario would have had a VERY large settlement from the hospital.)

    • Holly Apr 14, 2013 @ 8:47

      Kevin, which contract lawyer have you discussed this with? The one who got back to me told me that I was right about the problem.

    • Dal Jeanis Apr 15, 2013 @ 5:28

      Kevin – You have it backwards: Holly is making CERTAIN. You are making ASSUMPTIONS.

  • Brenda Gain Apr 13, 2013 @ 15:20

    One thing I would add that I learned from the military and used both there and in the corporate world in addition to contracts is CYA: cover your a$$.

    Any time you have correspondence, discussions, a meeting (face-to-face, online, by phone, in conference, etc.) where you get or give information and/or expectations are made RECORD IT. Write down who it was with, any others who participated (witnesses), those who might have been absent (plausible deniability), what was agreed upon between which participants, what time and date the meeting was, even the physical or virtual location the matter took place. Save all subsequent meetings and details, get the meeting minutes if any were taken. Save copies of any resources used or needed. Save all correspondence you receive pertaining to the event, no matter how seemingly insignificant – it adds up. If communications take place online via e-mail, IM, cell phone, or forum capture a screen shot (or take a digital photo) to show the recipients, the sender, the conversation topics, and date/time. We used cc:mail at one time (pre Microsoft Outlook) which had a feature that enabled short text individual reports on what the receiver did with any e-mail sent to them by you. That feature came in handy when my e-mails were marked as “Deleted, Not Read” and I grabbed a screen shot of all of them to build my case. I also made sure copies were saved as they were sent out in case I was required to provide those specific details, which I was.

    I had a real bastage of a supervisor once who really motivated me to these extremes. When I felt the issue was bad enough to compel me to address it with the corporate HR folks I won 2 out of 3 complaints I made of him. In this situation taking the issue to his immediate higher level management was not an option. In the Air Force when I learned how to track such things I actually helped save the career of an Airman friend of mine from imminent dishonorable discharge proceedings (I was his rater/reviewer as well).

    To sum it up, it’s better to be over-prepared and not need something that you have the ability to present than be empty handed. I’ve been unprepared and empty handed as well and had no hope of preserving what was rightfully mine.

    Thanks, Holly, for looking into this B&N contract issue and sharing it with us.

  • Misty Apr 13, 2013 @ 13:53

    THIS is why artists need communities.

    It’s sad that the world has to be that way, but I’m glad that there’s a strong community of self-pubbers who kick up a fuss anytime one of these companies tries something like this.

  • Werner Apr 13, 2013 @ 13:12

    I couldn’t agree more.

    I learned this lesson as a young man. A manager had promised me all sorts of things if I performed certain tasks and reached certain goals within 6 months. I surpassed all expectations.

    When I asked the manager about the promises she made, she literally said, “If I didn’t put it in writing, it didn’t happen.”

    I have never forgotten it and remain cautious to this day because of it.

  • Judy corduan Apr 13, 2013 @ 12:43

    Holly,
    Thank you for taking the time to put this out for the rest of us to read. Some day I may be really glad to know this.

  • Thomas Linehan Apr 13, 2013 @ 9:55

    Let a post to your website on twitter. I’m sure you’re going to get more readers. Thanks

    • Holly Apr 13, 2013 @ 10:48

      Thank you.

      My objective with presenting contracts, or publishing difficulties with some publishers, or processes that are changing, in front of the folks who read my weblog is to bring attention to what I have identified as problems.

      When I’m not sure if it’s a problem, I ask. Sometimes when I ask, I find out I’m wrong.

      I switched over to self-pubbing my more recent projects in DRM-free format (you can’t change over the old ones…I tried), after a VERY long discussion on this site about the advantages and disadvantages of using DRM. I listen, I judge, I act.

      With the B&N contract, I could see how if I were a lawyer, I could beat the signer of the unlinked version of the contract with this statement: “Prove those were the terms you signed.” There was no way to do it without the links.

      What I’ve learned about reading your own contracts is this:

      * Contracts are signed during happy times, when money is flowing toward you, and you are easily tempted to overlook damaging clauses.

      * Contracts are disputed in unhappy times, and any clause you did overlook WILL be used against you.

      * ALWAYS read every clause of every contract while asking yourself this question: How can this be used against me?

  • bob cohn Apr 13, 2013 @ 9:37

    What an awful experience, Holly. Congratulations on getting through it, not only physically, but emotionally, and remaining a person who wants to help others. Hats off to you.

  • Texanne Apr 13, 2013 @ 9:25

    Also, no matter what that nice IRS agent tells you on the phone, it doesn’t matter, either. You can follow their advice to perfection and still wind up in expensive do-do.

    Holly, I’m so glad you are always on alert about these things. Watching for tricks is hard work and requires a level of attention to detail that would put me in a dead faint, so I’m very happy to have you walking point for us through this jungle.

    Thanks!

    • Holly Apr 13, 2013 @ 11:01

      You’re welcome. But an added note…I miss shit. I watch, but there’s way more out there than I can ever see. So when you spot things that look wrong, I’d appreciate a heads up so I don’t get run over. 😀

      • Texanne Apr 13, 2013 @ 11:02

        Fair enough. 🙂

  • Vanessa Wells Apr 13, 2013 @ 9:19

    Amen and Amen. I had quietly decided that I would not use Barns and Noble myself (although admittedly, that was partially due to my misunderstanding a clause in the KDR contract), but this discussion and these changes will allow me to put my work on at least two platforms. Thanks!!!

  • Ray Johnson Apr 13, 2013 @ 9:16

    Holly, just a quick note about printing PDFs. I don’t know how this works on a Mac, but do know how it works under Windows and Linux, and I suspect the basic idea is similar on a Mac. What happens whenever you print a PDF is based either on settings you specified – or, if you didn’t change them, on default settings. These settings can change if there is a software update. I’ve never noticed print defaults changing, but I’ve had other settings that mattered to me switched without warning.

    So if you really want to be sure what you’ve printed out is what you wanted, you either have to check the settings, or glance at the finished copy when its done. In a matter as important as this, I’d do both. (Because a software update can also “break” the software, so settings don’t produce the desired result.)

    Then there’s the issue of either printing out a hard copy of that PDF and saving it, or being very sure your backup arrangements are much better than seem reasonable. I’ve known people to have their main hard drive and their backup hard drive fail within days of each other, and automatic backups are dangerous because if you don’t notice an issue with the original, source file, it is possible your “change” can be recorded in the backup. There is not a single cloud service which is safe to rely on as a sole backup, either. (Yes, they’re nice as another layer of security.)

    Writers don’t like to think about these things. They’d rather be writing. So would I. But if you want to preserve your manuscripts, and important documents like contracts, they’re things you need to think about. (My important files ‘live’ in two places in the cloud, on my own hard drive, on a backup hard drive, and on several USB sticks I update and store here and there – and I keep old files until I’m sure the new ones haven’t duplicated corrupt files or anything else. If I can work out a way to do so, I plan on improving that routine, because it is not foolproof.)

    • Holly Apr 13, 2013 @ 10:38

      Nice call. I recommend saving burning the entire linked collection of PDFs to a disk, along with printing off hard copies and saving on USB and in the cloud.

      That way, you have “live” copy of the links.

      • Eileen Apr 13, 2013 @ 18:39

        I keep a USB of al my latest manuscripts in my purse, incase my hard drive/PC are in a fire or stolen while I’m out.
        I hope I never lose my purse.
        🙂

      • Jennifer Jensen (@jenjensen2) Apr 13, 2013 @ 18:53

        One more to add to the backup list: if you use a web-based email account like gmail or yahoo, send a copy to yourself. It stays in the online archives, so even if you delete it from your computer, you can access it online. Just another layer of safety net.

        thanks for a great discussion!

  • Kathryn Kistner Apr 13, 2013 @ 8:47

    Yep, can’t assume anything.

    I have also called in to “Customer Service” and had the customer service rep tell me… what I needed to know.

    A week or two later, I find out that the customer service rep lied to me… made it up on the spot… or told me what I wanted to hear (to get me to hang up).

    I go to the supervisor and tell them that according to my notes, on Jan. 16, 2013, Mary Smith told me that… blah, blah, blah.

    The supervisor’s response: “We can’t be held responsible for what our customer service reps say.”

    Really?

    I SECOND the vote to get everything in writing.

    • Holly Apr 13, 2013 @ 9:06

      Right. Never deal with ANYTHING important by telephone. Get it all in writing. Always.

      Spoken words and promises are wind.

      Complete, picky-as-shit, dated, signed, linked, paginated paper is solid.

      • Holly Apr 13, 2013 @ 9:06

        AND A DISK with the PDF backup on it, included in the folder with the contract!

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