Home » Apple, Contracts » The Unprecedented Audacity and Stupidity of the iBooks Author License

The Unprecedented Audacity and Stupidity of the iBooks Author License

19 January 2012

From Venomous Porridge:

Apple just released iBooks Author, a free Mac app for creating digital books for the new version of iBooks. I haven’t played with it much, but so far it looks like a very good tool. However, a curious thing happens when you go to export your work in iBooks format:

This restriction — that iBooks can be sold only in the iBookstore — isn’t enforced on a technical level. You can save the document, move it to your iPad in any of the usual ways (including just emailing it to yourself), and it happily opens in the iBooks app.

But if you look at the end-user license agreement (EULA) for iBooks Author, accessible via the app’s About box, the following bold note appears at the top:

IMPORTANT NOTE:
If you charge a fee for any book or other work you generate using this software (a “Work”), you may only sell or distribute such Work through Apple (e.g., through the iBookstore) and such distribution will be subject to a separate agreement with Apple.

And in section 2:

B. Distribution of your Work. As a condition of this License and provided you are in compliance with its terms, your Work may be distributed as follows:
(i) if your Work is provided for free (at no charge), you may distribute the Work by any available means;
(ii) if your Work is provided for a fee (including as part of any subscription-based product or service), you may only distribute the Work through Apple and such distribution is subject to the following limitations and conditions: (a) you will be required to enter into a separate written agreement with Apple (or an Apple affiliate or subsidiary) before any commercial distribution of your Work may take place; and (b) Apple may determine for any reason and in its sole discretion not to select your Work for distribution.

In other words: Apple is trying to establish a rule that whatever I create with this application, if I sell it, I have to give them a cut. And iBooks Author is free, so this arrangement sounds pretty reasonable.

Here’s the problem: I didn’t agree to it. Apple wants me to believe I did, of course, just by using the software:

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING THE APPLE SOFTWARE. BY USING THE APPLE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL AND/OR USE THE SOFTWARE.

But that language is in the EULA itself, a contract of adhesion which I was not required to sign (or even indicate my agreement to by clicking) before installing the software. So, to paraphrase: By using this software, you agree that anything you make with it is in part ours. But if it can say that and have legal force, can’t it sayanything? Isn’t this the equivalent of a car dealer trying to bind you to additional terms by sticking a contract in the glove compartment? By driving this car, you agree to get all your oil changes from Honda of Cupertino?

Apple, in this EULA, is claiming a right not just to its software, but to its software’s output. It’s akin to Microsoft trying to restrict what people can do with Word documents, or Adobe declaring that if you use Photoshop to export a JPEG, you can’t freely sell it to Getty. As far as I know, in the consumer software industry, this practice is unprecedented. I’m sure it’s commonplace with enterprise software, but the difference is that those contracts are negotiated by corporate legal departments and signed the old-fashioned way, with pen and ink and penalties and termination clauses. A by-using-you-agree-to license that oh by the way asserts rights over a file format? Unheard of, in my experience.

Link to the rest at Venomous Porridge and thanks to David for pointing this out in a comment to PG’s earlier post on the Apple announcement.

Passive Guy got rid of his Macbook Pro a few months after purchasing it. When he tried to use his Windows machine to take a look at the iBooks Author license, he got bounced into nowhere, so he can’t check language or assertions in this blog post.

If this all is true and not modified or limited by other language, this seems like a giant screw-up by Apple, a dumb shooting-yourself-in-the-foot screw-up. PG has serious doubts about the enforceability of such a clause, but would need to see the entire EULA (End User License Agreement) first.

Apple, Contracts

44 Comments to “The Unprecedented Audacity and Stupidity of the iBooks Author License”

  1. PG,

    LOL, Apple did something underhanded.

    There’s a surprise:)

    They make some cool stuff, right enuff, but the company is a bunch of brigands. I’ll never do biz with ‘em.

    brendan

  2. I think they’re making a mistake.

    At this point, from a content creation standpoint you’d be pretty silly to take Apple’s distribution over Amazon’s.

  3. Thanks but no thanks, Apple.

    I can’t say that I am going to miss you too terribly much in the scheme of things.

  4. Since Smashwords distributes to Apple and I’m curious if they’d even be open to international authors (i.e. we can’t use Pubit), why would I bother after hearing about this clause?

  5. I live in New Zealand, and apart from the public domain stuff, iBooks is pretty useless when it comes to book purchases because, well, we still aren’t allowed to buy any books through iBooks due to licence issues (Unbelievable!!!!). Amazon, no problem. I wonder if ever I decide to use iBooks Author, if it will limit me to New Zealand only? That is, if they accept my product. I hate it when people decide for me where or how I can buy and/or sell. I understand Copyright limitations and licence conditions, but in the end, it is the end user who suffer. The internet is still too regional for my taste, and not truly global enough when it comes to these issues. IMO

  6. Assuming that the terms of this EULA as presented are enforceable, is this different from the licenses that accompany other software products? I see these terms a lot. If you use this [framework/SDK/etc.] for commercial terms, you must [buy a license, typically].

    • Brendan, I *think* that this may be a case of lawyerly boilerplate finding its way into the wrong kind of EULA. That’s the most charitable position toward Apple, and hopefully will be rectified as soon as it’s pointed out to them.

      The other position is that this really is some kind of bizarro stealth attempt to acquire the rights to the output of their product. I think this is the less likely of the two, but we’ll have to see how this plays out to know for sure.

      • If it’s a rights grab, why do they want only the rights to books that are being sold? Do they maybe think that if the author has to give it away, it can’t be worth having? If so, maybe someone should remind them of the foundations of Mac OS X, which draws heavily on software that the original developers chose to give away…

    • The difference here seems to be that Apple is trying to control the actual content. The output of iBooks Author is an open format (EPUB, which in turn is just a zip archive of xml files). Unless there’s something I’m not aware of, anything that could be created with iBooks Author could be created with a text editor and a free zip tool.

      Apple appears to be claiming that the act of writing your book using their tool gives them a financial claim on the book itself. I find that a bit much, even for Apple.

      • iBooks Author doesn’t actually produce a true EPUB. It outputs an .ipa file, which is very much like an EPUB but uses a different mime-type and a lot of Apple-specific CSS styles that wouldn’t be understood by any application other than iBooks. (There may be other differences that I haven’t seen yet.)

        Which makes this claim of theirs even weirder, at least at present, because only iBooks can read these files. What it really comes down to is you can’t sell people these books through your own website.

        • Thanks for the clarification. I’m seriously tempted to write an app that would convert this format to something more open while maintaining most of the functionality.

  7. I appreciate all of the education on how to read a contract!

    PG – Do you have posts on the Amazon kindle/publishing contracts? I have looked under Amazon, Kindle, and Contracts but they are all to0 broad and have way to many posts to search for this. (Not a bad thing unless searching for specifics! I have followed some other threads such as “self-publishing” all the way to the end.)

    • Erin – I’m working on a book about the KDP Contract (way too slowly).

      • Aack! A book! Is it going to give me nightmares, because I don’t read horror. :)

        Come to think of it, I remember mention of the book before. Ah, but I also remember noticing that since you did sign one of these contracts, maybe they aren’t too wicked. In any case, perhaps the best option currently available.

  8. I’ll be curious how this plays out, as well, but I’m thinking this language has less to do with individual authors cranking out their zombie novels on this software than to do with the educational textbook content that Apple wants to lock into its profit machine. It is probably aimed squarely at McGraw Hill, Pearson, et al, the publishers who have joined up with them in this venture. They certainly all deserve each other :-).

    • Rebecca – My guess is the big publishers will have their own separate contracts with Apple that differ from the app EULA.

  9. *snort* As one commenter said, “Apple? Underhanded? Pshaw!”

    I’m about to pull my book from iBooks altogether, mainly because I have only sold 5 copies in 10 months, but also because I’ve finally decided I can’t work with a company that forces me to use a particular piece of hardware (e.g. a Mac). The fact that I would have to buy or rent (or borrow) a Mac just to upload books to a service that sells so few copies… well, there’s just no way to justify that cost:benefit ratio.

    Curious though, PG: Why’d you get rid of your MacBook so soon after purchase?

    • Jason – All of my Windows machines are highly customized with gobs of little programs that make things go faster. It usually takes me a couple of days to set up a new computer to operate the way I like it to.

      As cool as I thought the Macbook was, after several months, even with lots of suggestions from Mac experts, I couldn’t find adequate replacements for all the tools that are second nature for me to use on a Windows machine.

  10. Re the comment about this being common in enterprise software… I work for a large software company, though not directly involved with contract negotiation. I have never heard of our customers being restricted as to what they can do with the output of the products we sell them.

    There are some consumer-level programs for creating things that are free for non-commercial or educational use, but if you make money from the output, you’re supposed to pay for a license. That’s a restriction on the use of the output, but there’s a way to remove it. Apple’s EULA doesn’t appear to offer a way to remove the restriction. (Other than giving your book away, which I don’t imagine many authors would want to do.)

  11. I don’t understand why so many companies insist on turning the ebook business entirely over to Amazon?

  12. * Apple. Oh terrific! I never touch Apple with a super-length barge pole because of their basic contempt for their users. It doesn’t help that, like you, I go absolutely nowhere if I even ATTEMPT to find my book (or any damn thing, for that matter) on iTunes or iBookstore or iBiteMe with something other than a Mac.

    * Amazon. Don’t get me started on the “now we have sparkly Kindle Fires that support KF8″ while only providing content providers with the massive choice of uploading EITHER Mobi OR KF8 but not both! Not to mention the fact that any content providers outside the Western Amazon enclave who want to use Amazon tools to create better content…CAN’T!

    * PubIt! “Oh yes, we’re open to any content from the WORLD…as long as you have a US-address AND US credit card.” Prats.

    * Kobo. “We love you but you have to forgive us if nobody replies to your support emails and we take TWO MONTHS to put your book up on our store…and then forget to add the COVER! –giggle– But you still love us, don’t you?”

    Sorry, I know this post is about Apple but it’s just another straw on the dromedary’s back for those of us not blessed enough to live in North America and own Macs. I think I’ll go pour myself a stiff drink now…..and it’s not even 10am yet where I am!

  13. That’s too bad. I was interested in looking at the iBooks Author program, but now won’t even bother. I was doubtful I would use it anyway because it can’t export direct to mobi.I have other tools that can export to both mobi and epub. I don’t want to keep forking my manuscript every time I need to export to a new platform.

    I had high hopes Apple was going to try and reduce the barriers to entry in the iBookstore, but apparently they don’t want to. It’s kind of funny considering the crap that they let in the Appstore — then again, maybe a result of?

    I’m not sure who this program is for. The textbook publishers and large publishers are going to use InDesign to create their ebooks. Self-publishers and small presses will avoid this tool because of the EULA restrictions and use Sigil, Jutoh or Scrivener, or use Smashwords. So I am kind of curious who Apple expects to use this; hobbyists that want to make their own books to import from iTunes direct to their iPads?

    I wonder if Apple has similar restrictions in the EULA for Xcode?

  14. The language of the agreement is very clear. If you sell your book through the iBookstore, you agree to grant Apple exclusive rights to distribute and sell your ebook.

    • No, that’s not right. I’ve been reading this more and other reactions to it, and it kind of boils down to this (and this is my interpretation of Apple’s stance, not that I agree with it):

      Apple will provide you with this free and awesome tool for creating interactive content. You, in return, will sell this interactive content ONLY on the Apple store. If you wish to sell it somewhere else, you don’t get all the cool interactive stuff but you can still sell a PDF. if you want to sell interactive stuff somewhere else, go use someone else’s tools.

      Also remember, this is a tool for textbook creators, not general epub books like we would put out. There is a different audience here.

      • Rats, can’t edit my comment above. Meant to say “that’s not QUITE right.” If you use iBook Author, you’re giving Apple the exclusive right to distribute and sell an INTERACTIVE book created with iBook Author tools. You can still sell a non-interactive version elsewhere. (At least I’m pretty sure you can.)

  15. I’m not sure I agree. The language of the agreement (which won’t let me copy and paste from Mac Appstore) says that “Works” generated using the software may only be sold through the iBookstore (if you charge a fee). I believe the term “Work” as used in the EULA is referring to the resulting epub — not the manuscript generally.

    I take that to mean I can only submit the resulting epub file from iBooks Author to the iBookstore — I can’t take that same epub and submit it to PubIt (as long as I charge a fee).

    However, if I take my manuscript and create an epub using other software, I am free to submit it to PubIt and charge a fee. BUt that’s a pain in the you know what because now you have to format your manuscript twice for epub.

    I think the goal of the EULA is to prevent Authors from using their tool to create content for other platforms. Its a bad move, because no one will use the tool at all.

    • Yes, this is right (I should have read farther before replying above). But as I said, this is NOT a general purpose authoring tool. This is specifically designed for textbook creators. Right now, at least, the major textbook publishers seem on board.

      I was hoping for a general authoring tool to make it easier for indie publishers to get on the iBookstore, but that’s not what Apple provided. Expectations need to be adjusted accordingly.

  16. Have you tried to find a US small press that would publish your work? Just an idea.

    • Hi Jason! :)

      I am already published through a large US press (not a happy experience) and turned down a contract with a small US press (due to their odious contract clauses) and am also published through other US/UK small digital presses (who are much more professional and supportive of their authors).

      The net result of all this is…at this point in time, I prefer going it alone. That way, at least *someone* (hopefully me) will learn from any mistakes. LOL

  17. Yeah, the comment above was supposed to be a reply to Kaz. Dunno what happened.

  18. [...] market for them to get into, but not really of any relevance to the indie writer. Besides, as Passive Guy points out, the licence their iBooks Author software to create enhanced e-books requi…. Oh yes, and you still have to have ISBNs and a Mac to publish with [...]

  19. Remember the term unconscionable. This agreement would fit that definition. If it ever came down to legal action, consult with a lawyer about the fact that the agreement is unconscionable.

  20. I agree with Josh. I think this terminology is intended to refer to the specific file generated using the software. Smashwords has the same terms — if you use Smashwords Meatgrinder to create epub and mobi software, you aren’t supposed to take those versions and upload to vendors other than Smashwords.

    I’m not sure I think this is a big problem, as what Apple software allows for is an enhanced ebook suitable for viewing on the iPad/iPhone. If that’s your market, then you’d port it to Amazon and Android using different software (or you’d get a big old mess).

    I haven’t done an enhanced ebook yet, but I may play with one for fun. But I’ll probably end up doing it as an app instead of an enhanced ebook.

    And I’ll continue to do my vanilla ebooks in Jutoh, porting out the appropriate version for the appropriate vendor myself.

  21. I don’t want to sound at odds with everyone, but I think it’s not really a problem.
    Here’s why:
    1) I will always own the intellectual rights to what I have written. Apple can’t take that away from me.
    2) EVERY DIFFERENT FORMAT of eBook is considered a different product – If you have an EPUB and a .mobi version of the same (otherwise identical) book, they CANNOT SHARE an ISBN – they must have two separate ones. Hence, they are different ‘works’ – as different in the eyes of the law as a hardback and a CD Rom or audio book.
    3) I’m in the UK. Well, mostly. I can’t sell to or through iBooks without being US based. If Apple want to give me an in – even for a price – well, that’s what Amazon do too. I’m game.
    4) I PHYSICALLY CAN’T sell a book made on iAuthor anywhere else – as mentioned above – unless I have a website frequented entirely by Mac owners. If the file can only be read in or with iBooks, then who would ever try and sell that file anywhere else? Might as well pedal Betamax video cassettes!
    So… I think it’s a win/win situation. Copy and paste your book text into iBook. Upload to iBooks. If/when Apple send you a contract, read carefully and sign if you like their terms and cut – if not, pull it down. You’ve lost nothing – the .mobi version will still be selling like hot cakes on Amazon the whole time, and there’s nothing Apple can ever do about that.
    Just my 2p worth!
    Tony

    • Tony – Apple can’t take away your copyright to something you write, but you can assign your rights to Apple. This is what happens to every author who signs a traditional publishing contract.

      • True, but I have to assign those rights – that’s not something they can assume by proxy. Surely it’s just like the different rights I could offer to a publishing house; first in world, foreign language x, mass market paperback, serialisation – this is only one right they would be acquiring, which is the right to sell the version created via their software. The fact that the work has pre-existed in other formats means they can’t take any other rights – unless a contract is signed stipulating the extent of the rights acquired, and for what recompense.
        Or am I completely mad? I’m no expert of course :0)

  22. “The fact that the work has pre-existed in other formats means they can’t take any other rights ”

    Tony,

    I refer you to the recent discussions concerning Harlequin and reversionary rights and reduction of contract values. Much of what I read indicated that it was definitely arguable in court, that they just imposed it and the writers were in the main disgusted at the wrongness of it.

    Which one is going to stand up and fight them?

    Same with Apple, who when in court, fight hard.

    Problem is, if it’s just me, with my poor little pocket going up against a lot of eloquent expensive lawyers arguing for and on behalf of a company which is seen as a vital part of America’s economy.

    Take your chances and dance matelot.

    I’m not touching it with…….._anything_.

    The entire company ethos is piratical.

    brendan

  23. Hi Brendon!
    I see what you mean – and I would wet the bed just thinking about facing off against Apple’s lawyers!
    Surely though, those authors signed already with Harlequin? Perhaps some contract clause was being massaged to justify gaining additional rights or to avoid them reverting – but having never signed anything with Apple, they can’t take rights already being exercised by me through Amazon, for a piece of intellectual property which has never been anywhere near their software?
    That would be like buying a car, then informing the dealer that you also now own the one next to it because you said so.
    No matter what they can or can’t do (or stop me doing) with the book I created with their software, they can’t do anything about the book I created with Word, Calibre and KDP – especially because according to the ISBN’s regulations, it’s not the same book!

  24. This conversation is rather amusing to me. This EULA is not substantiated different from the Apple Developer agreement, in fact it’s more permissive. It does not, for example, prevent authors from publicly discussing the terms of the agreement. :)

    Apple is a very Ayn Rand-ian company. They do not recognize the worth of any contributions, work or artistry other than their own. This is how apple does business. I am very surprised there wasn’t gems like this in the basic iBook Agreement.

    They are kinda scary, but darn it, I love their hardware. :)

  25. [...] a day or so before I posted the news here on Indie Beware. Because there’s been some pretty questionable information coming out on the End User License Agreement (EULA) that all authors and publishers [...]

  26. [...] The Unprecedented Audacity and Stupidity of the iBooks Author License —  The Passive Voice [...]

  27. I will point out one tiny threadbare sliver of hope.
    There has been at least one case where since the EULA wasn’t visible the whole thing was declared invalid. Since it looks like that’s the case here the argument could be made that there’s precedent. I wouldn’t want to stand on it though.

    http://en.wikipedia.org/wiki/Clickwrap

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