Home » Apple, Contracts, Copyright/Intellectual Property » Is Apple’s Dismal iBooks Author Software License Even Enforceable?

Is Apple’s Dismal iBooks Author Software License Even Enforceable?

26 January 2012

From Litigation and Trial:

Apple’s new “free” iBooks Author program, which allows authors to create their own professional layouts while they write books, includes an astonishingly greedy and overbearing clause in its end-user license agreement (“EULA”):

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.
Apple will not be responsible for any costs, expenses, damages, losses (including without limitation lost business opportunities or lost profits) or other liabilities you may incur as a result of your use of this Apple Software, including without limitation the fact that your Work may not be selected for distribution by Apple.

As Bott explains, “The nightmare scenario under this agreement? You create a great work of staggering literary genius that you think you can sell for 5 or 10 bucks per copy. You craft it carefully in iBooks Author. You submit it to Apple. They reject it. Under this license agreement, you are out of luck. They won’t sell it, and you can’t legally sell it elsewhere. You can give it away, but you can’t sell it.”

. . . .

There are two types of licenses under copyright law, an exclusive license and a nonexclusive license. Here’s how they differ:

In an exclusive license, the copyright holder permits the licensee to use the protected material for a specific use and further promises that the same permission will not be given to others. The licensee violates the copyright by exceeding the scope of this license. …

By contrast, in the case of an implied nonexclusive license, the licensor-creator of the work, by granting an implied nonexclusive license, does not transfer ownership of the copyright to the licensee. The copyright owner simply permits the use of a copyrighted work in a particular manner.

IAE, INC. v. Shaver, 74 F.3d 768, 775 (7th Cir. 1996).

The iBooks Author EULA plainly tries to create an exclusive license: Apple claims, in essence, the copyright holder [that’s the author] permits the licensee [that’s Apple] to use the protected material for a specific use [the iBooks store] and further promises that the same permission will not be given to others [that’s the ‘you may only distribute the Work through Apple’ part].

Here’s the problem: under the Copyright Act, an exclusive license is defined by 17 U.S.C. § 101 as a “transfer of copyright ownership,” and under 17 U.S.C. § 204 such a transfer “is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed.”

Of course, Apple doesn’t ask anyone to sign anything before using iBooks Author.

. . . .

Apple seems to have recognized that problem: the EULA demands “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.”

. . . .

Which means that, in the end, the iBooks Author EULA leaves both Apple and the author in a strange stand-off: Apple doesn’t actually have the right to tell the author not to take their work somewhere else, but the author can’t do that without breaching the EULA — even though they retain full rights in their copyright.

But Apple has been too clever by half here: if an author does breach the EULA (by not subsequently signing the written agreement after having used the “free” software) and distributes their iBooks-created-work elsewhere, what are Apple’s damages? Because Apple doesn’t have a copyright interest in the book (like an exclusive license), they can’t claim lost royalties as the damage. Instead, they have to claim that an author breached the EULA of a program that users did not have to pay for in money.

Link to the rest at Litigation and Trial and thanks to Tony for the tip.

The author of this blog post is an attorney and makes a good argument for Apple backing itself into a difficult legal corner. There are lots of legal arguments going back and forth in the comments at Litigation and Trial.

The bigger picture is that Apple made a serious unforced management error in going down this road in the first place.

It is the height of stupidity to put something in a EULA that is not reasonable on its face and clearly enforceable. If you get into a fight and a judge sees something unreasonable or overreaching, you never know how far the judge will go in dismantling the contract.

As Passive Guy mentioned earlier, Apple will have written agreements with the big textbook publishers covering their use of the iBooks Author program and the iBookstore. PG is not privy to those contracts, but he bets they are not onerous because Apple needed the textbook publishers lined up before launch to give its program credibility.

This whole mess turns on the provisions that Apple wants to apply to independent authors. The net effect of this is that Apple looks extremely overreaching toward the little guys while it’s in bed with the big guys.

Apple, Contracts, Copyright/Intellectual Property

44 Comments to “Is Apple’s Dismal iBooks Author Software License Even Enforceable?”

  1. I have to say, I think everyone is seriously overreacting to the iBooks Author EULA. I don’t like it, I think it’s overly restrictive, but I also think everyone is focusing on the wrong part.

    There’s no disagreement about the terms of distribution. It all hinges on what is “The Work”. If you’re talking about selling a rich multimedia immersive super whiz-bang text book that takes advantage of all of iBooks Author’s magic, you must sell it through iBooks. This isn’t (only) because of the EULA, it’s because your book is only viewable inside iBooks. You can’t play it on a Kindle, a Nook, an Fire, or anything else. It’s an Apple proprietary format (in exactly the same way that mobi is an Amazon proprietary format, except for Amazon, it’s proprietary solely for the sake of control, for Apple, .ibooks has unique features impossible in ePub3). So what’s the problem?

    If you write the great American novel, or the great Victorian bodice-ripper, or the great vampire/werewolf/zombie death match chronicles, and you produce a .ibooks file with iBA, you must sell that in iBooks.

    But “The Work” is not your copyrighted text. “The Work” is your finished iBooks product (which, for technical reasons, is only usable in iBooks). You can paste your text into Pages, export an ePub2, and sell it on BN, save a .doc and upload it to Smashwords.

    Apple’s EULA is clumsy in not making that adequately clear, and I strongly believe they will update it to reflect that, but I don’t believe they’re claiming control of your text. They’re claiming control of the finished product produced using a remarkably advanced tool they’ve made available for free which is only usable in their marketplace anyway.

    Honestly, just breathe into a paper bag for a minute. You’ll feel better.

    Rich

    • My husband, who’s in the IT field, said pretty much the same, Rich.

      It’s too bad Apple–who is usually pretty good at their marketing–fumbled the communication of this. (I agree that Apple will probably release a EULA revision.)

      I see a SERVICE and a PRODUCT (two offerings). You can use their product (the whiz-bang maker tool, which they’re giving away for free) and their service to sell your work (iBookstore). Or you can use your own “program” and still use their service.

      If you choose to use their tool, you must sell in their store.

      You don’t have to use their tool in order to sell in their store (so it seems).

      In the end, this isn’t intended for fiction writers unless fiction suddenly wants to include graphs and charts and animations and embed video or audio into the files. It could be neat and a whole new multimedia experience, but right now, most readers probably just want the words.

    • “…“The Work” is not your copyrighted text. “The Work” is your finished iBooks product (which, for technical reasons, is only usable in iBooks)…”

      Is that how Apple defines “The Work” in its EULA definitions? Because if Apple doesn’t very clearly define “The Work,” I’d never assume a user could legally hold them to the more restrictive definition.

  2. I agree. I read this initially as file format specific, which is moot anyway because what other platforms are you going to sell it on anyway? If I write a novel, for instance, and use their program to format and sell it through the ibookstore, I see nothing in the agreement that would prevent me from taking the content of that novel and formatting it for other platforms and selling it wherever I want. Kindle select has more exclusivity on content than this EULA does.

  3. For the Apple-fan reactionaries, I gotta say one thing: The mind boggles. What Apple is doing here is equivalent to a friend demanding that any bookshelves you make with the hammer he gives you can only be sold at his store.

    “Where else are you going to sell it?” That’s a silly question. Everyone digests Epub now, except Smashwords, and that’s coming. I have exactly two steps to distribution everywhere: .doc and .epub. The .doc goes to Smashwords, the ePub goes to everyone else, and that’s the end of the matter. If I were to use iBooks to author my ePub, you’re damn skippy that I’d want to upload it everywhere, including my own personal webstore (which doesn’t sell a hell of a lot, but the dedicated fans buy there, and I get 100% of the purchase price–not a bad deal at all).

    Apple may make some sweet products, but the mentality that mistakes “they make a product I like to use” with “they wouldn’t try to hurt me, they’re just trying to cover themselves” strikes me as truly bizarre. While user-friendly in its product design, Apple has never been friendly to its users who don’t pay a premium for the privilege, and they’ve certainly never been a friend of small business or independent producers–and in that sense this particular bass-ackwards license agreement shouldn’t be a surprise. However, since a lot of authors seem prepared to bend over for this one (at least in theory), let’s try a parallel:

    How do you think musicians would react if the also-free (or, at least, bundled with the OS) GarageBand’s license included a provision stating that “All songs/audiobooks/podcasts produced with this software may only be sold through the iTunes store, or given away elsewhere. They may not be sold elsewhere.”

    Perhaps it’s a bad example, considering the kinds of contracts musicians sign, but the situation is exactly analysis. I’ve always thought that two of the basics of business are that 1) you don’t sign an illegal contract, and 2) you don’t sign a bad contract and assume that the other party is never going to enforce the parts you don’t like. Since there’s already some caselaw holding EULAs as enforceable, doesn’t it behove one to treat them as if they were contracts, and to be particularly leery with them when they contain blatantly illegal/immoral provisions such as this one?

    -Dan
    ::Mind Boggles::

    • Sorry, J. Daniel, but Dan and Rich are right here. Your hammer/bookshelf analogy isn’t accurate. If you use iBooks Author to create the kind of interactive content that the tool was designed to make, then you MUST sell it through iBooks 2 because THERE’S NO OTHER E-READER ON THE PLANET THAT CAN VIEW THAT PARTICULAR CONTENT. It’s Apple’s proprietary version of ePub (or ePub with Apple’s proprietary extensions grafted on).

      You can take a non-interactive version of the book (basically strip out Apple’s extensions) and sell that anywhere else. You just lose the interactive parts.

      To use your GarageBand example, it would only be similar if GarageBand offered unique, Apple-only extensions to the music you could create that could only be played through iTunes. BUT, if you stripped out those music effects (or whatever), then you could sell the songs anywhere.

    • Sorry, forgot to add, you can agree or not with Apple’s decision to add proprietary extensions to epub, but it does NOT forbid the sale of the work elsewhere without those extensions.

      It sounds like you haven’t taken a look at the kind of interactive content iBooks Author is designed to make. It is NOT a tool for creating a text-only epub (like a novel).

    • It’s simple, Dan. iBooks Author does not output epubs. It only produces .ibooks files.

      • It outputs text and pdf too.

        • Exactly! And the text and PDFs that are output CAN be sold anywhere. It’s only the .ibook output that is restricted to the iBooks 2 store.

          • Not according to the EULA.

            • Just to clarify: A work is “any book or other work you generate using this software (a ‘Work’).”

              The text and pdf are generated using the software ergo you can’t sell them anywhere else but the iBookstore, which of course, doesn’t sell those formats.

        • Considering that one could copy the text and paste it into Word (or the word-processing app of one’s choice) and then save as text or “print -> save as PDF” to get PDF… (Which is what I did for PDFs for DriveThruFiction.)

          It’s pretty easy to avoid that little hurdle, even if one does assume that the text/PDF files will somehow be watermarked as being created with iBooks Author.

          (Which goes to show how stupidly written the EULA is.)

    • Apple has never been friendly to its users who don’t pay a premium for the privilege

      Untrue — unless you count “buying the product” as paying a premium. I got my PowerBook 140’s motherboard replaced once, and then got a PowerBook 145, because the Apple certified non-apple memory that was installed by the Apple certified dealer kept bowing down and shorting my motherboard. Twice! (After I got the 145, we kind of arranged that we weren’t gonna stick that same memory back in, though.)

      Both for free. With UPS showing up with a special box at my door to take the dead laptop away, even.

      I think the EULA is stupidly written at best, and that an author should look three times before messing with it, if only on the grounds of “a contract should be written so that you’d be comfortable if [insert your worst enemy here] became the person in control of the other side,” but all my experiences with Apple as a consumer have been pretty sweet.

  4. In that case, David, why the provision in the EULA? If there is no other platform that can currently (or perhaps, may ever) be able to use the extensions, why the attempt to sanction the sale of the authored ebook through venues other than the iBookstore?

    It’s not the extensions I object to (well, I do as an interested party in open IT ecology, but not as an author), it’s the rights grab. And in the context, I don’t see where the hammer or itunes analogy breaks down. Perhaps you can enlighten me?

    -Dan

    • Dan,
      They’re only readable in iBooks, but iBooks can read non-DRMed content from anywhere. There’s no question the license is intended to ensure that Apple controls the distribution channel and gets its cut. You could, under a more liberal license, sell .ibooks files directly from your website, for example. So what the license does is say “we’ve given you, for free, the only tool that can build this thing, which can only be used on our devices. In return, sell it on our store.”

      It’s not a rights grab, it’s a trade, of which you’re aware in advance. Apple spent a lot of money (and at least 2 years, by estimates I trust) developing this tool, which everyone is free to ignore, but which has unique and compelling features. If you use it, you don’t pay up front, but it’s not free. Apple gets a 30% cut. So instead of paying $1200 for a copy of InDesign…

      That’s all that’s happening here.

    • If I had to guess, I would say its in the EULA to head off people generating content through their software and then selling it independently to Apple users from their own sites and cutting Apple out of the 30% cut they get from the ibookstore. I don’t think it has anything to do with other platforms. I don’t think Amazon, B&N, Smashwords etc would be thrilled if people did that with files generated in their services either.

      • Absolutely correct. And I’m cool with that. If Amazon gave me a tool to build unfathomably cool .mobi books, and that tool gave me an advantage over competing books, I’d say “tally ho!”

  5. Rich and Dan —

    That’s pretty much I thought, and it confirms my objection.

    If a company that releases software authoring tools can dictate (by pronouncement, not by de facto market realities) how the products of those tools are used, we’re all pretty well fucked. I’ve worked (and still work) all through the entertainment industry, and the very-obvious knock on effects of this license (should it be upheld in court) are terrifying. It’s not just that it’s bad business to lock one’s products down to a single vendor (though it is), it’s that by doing this Apple is (as pointed out in PG’s excerpted article above) effectively capturing the IP.

    And, just to head you off at the pass, the protestation “it’s just this product” doesn’t work. Copyright law protects the fixed format. The .ibook file, with all its extensions, is a copyrighted/copyrightable product all on its ownsome. Apple demanding that you sell your copyrighted product only in their store merely because you used their tool to make it is unconscionable. At best, it’s what Scrooge McDuck called a “pleasure of working for me” tax. At worst, it’s restraint of trade (a felony) and a copyright grab.

    This isn’t paranoia, guys. Contra Rich, I’m not just hyperventilating. These kinds of moves (when unopposed) have knock-on effects. If enough people fail to balk at this licensing provision and/or someone challenges it in court and loses, do you think for a moment that other rent-seeking companies in the entertainment and tech sectors won’t jump on the bandwagon? The same players pushing ACTA, SOPA, PIPA, etc?

    We’re in the midst of tremendous industry upheaval in exactly the sectors that we writers make our living from, and historically times of upheaval are always accompanied by rent-seeking, artificial market-limiting, and rights grabs. Apple’s EULA is a textbook example of all three, and it’s bad for all of us.

    This is a dangerous precedent.

    -Dan

    • Where else can you sell .mobi books other than on Amazon’s Kindle platform? Why is that any less objectionable to you? (I’m assuming it is less objectionable, but correct me on that if I’m wrong.)

      • They sell .mobi format on lost of other sites.

        • Is there a platform other than the Kindle that can *read* a .mobi format?

          • Calibre can open them. I’m sure there are others. Generally, though, you’re buying a .mobi specifically for your kindle.

            I understand your argument that “Amazon is doing it so why aren’t you guys up in arms with them?” Trust me, we don’t like their propreitary format either. But Amazon didn’t go and release a tool with a stupid EULA either. Kindlegen EULA has no such restrictions as the iBooks Author EULA:

            http://www.amazon.com/gp/feature.html?ie=UTF8&docId=1000460351

            I wish they would all adopt epub3 and follow it. Or as Baekdel astutely pointed out, just used bundled off-line webpages.

          • I have an old Cybook Gen3, a BeBook 2009 and a 2010, and a Pocket EZReader that all read .mobi files, at least the vanilla version. Until epub2 came out, mobi (and prc) was quite popular.

        • .mobi has some Kindle-specific extensions, but it is not a proprietary format (and, even if it was, there is nothing in the Amazon EULA claiming that they can stop you from selling a mobi-formatted book elsewhere). If there was, I’d be railing against that.

          As Josh pointed out, mobis are available all over the place, and even if they were only through Amazon, I’ll give on you one very important place: Your own website.

  6. The fixed format is only permitted to be sold in one channel, but the notion of what “your book is” can be much broader and allow different formats to be sold elsewhere. If you leave aside the enforcement mechanism (technical vs. legal), how is this any different than the app store? Apple’s app store is the only permitted market for iOS applications.

    You can throw out the notion of jail breaking all you want. As a practical effect, those exist on a black market like non-iBookstore .ibooks would have to exist. iOS devices have always operated in closed marketplaces.

    What Apple has done here, like with the app store, has said people are free to develop books (or apps) with other tools. If you want to make the best books (apps) possible, you must make them with Apple’s tools — which they support by making the best development tools. Any books (apps) you sell, you must sell exclusively in Apple’s marketplace.

    You can reject the notion of a closed ecosystem. Reasonable people can disagree on that. I don’t see how the two situations are different.

    Rich

    • I guess the question for many authors is how do we know that this language can’t be interpreted to say if you write your story in iBooks, you cannot sell that story anywhere else, in any other format, than in the iBookstore. Mike Stackpole’s solution is he won’t write his story in that, but in Word, and import it into it iBooks and he hopes to avoid the possibility that by creating it in that program, Apple won’t have a claim that the Work, i.e., the story itself won’t be can’t be sold anywhere else but in their store.

      If there is language which prohibits that possibility, cool. I just haven’t seen anything definitive on that. But that is certainly a fear out there. If Apple doesn’t want to retain the rights to any format of an authors story if he uses this to write his book, it should make that clear. I think the ambiguity is the problem here, no matter what Apple’s intentions are.

      And if I create a mobi file of my story, I can sell it on my website, upload it to Amazon to sell there, or side-load it onto a Kindle from my website or Smashwords. Now the format that Kindle’s conversion creates can only be used on Kindle. That’s a given and understandable why Amazon wouldn’t want people selling that created version from their own sites as Apple doesn’t want people using their format to sell on their own websites. I get that. No problem. But a straight mobi file I can sell to anyone from my site without Kindle’s permission. Just can’t use their proprietary version of it like that.

    • PS: I get that if you want to use the bells and whistles, a book created in this program won’t play in other readers or formats. But a lot of authors see this as a means to have more direct access to Apple’s bookstore. Until now, you had to go through a third party like Smashwords unless you wanted to go through your own contract negotiations and such.

      So a lot of authors would like to use it, like they do with Amazon and B&N Pubit, to publish their word-only stories on Apple’s bookstore. But they want to do so without feeling they cannot sell their story elsewhere in other formats. No matter what Apples intent may be, whether the language can be interpreted to say that is more the issue. Authors are not going to want to use it if that isn’t clearly excluded from their rights, and they really are only talking about the iBook format.

  7. You need to be careful not to read what you think the EULA means into language that might be construed in another way. If some language can be interpreted in two ways, you can’t assume that Apple will not interpret the language in a way different than what you thought they really meant.

    The Apple EULA would not have created such an uproar unless it contained some ambiguities that could be understood in ways that gave Apple far more rights than many believe they should have for providing a software tool.

    If Apple meant only the innocuous interpretation, Apple’s lawyers could have easily written the EULA in such a way as to clearly encompass only the innocuous interpretation.

    • You are, of course, right, PG. Here, though, it’s important to recognize the difference between lawyers and business people/entrepreneurs. Anyone self publishing is clearly in the entrepreneur category, and is more likely to succeed by recognizing that. Your lawyerly advice, while correct, defines the legal risk, and I completely agree. the EULA is ambiguos and could be interpreted very badly for an author using iBA. From a legal perspective, you are 100% correct.

      From a business perspective, though, one has to make a risk management decision based on the correctly identified legal risk. _My_ risk assessment says there is essentially 0% possibility of Apple ever telling Michael Stackpole that, because he used iBA as a typewriter (which is the worst posible way to use it anyway — he should type in Word then import to iBA), he can’t sell that same text, converted to mobi, on Amazon. There’s doubt in a legal context about whether that’s a possible outcome. In a “is this every going to actually haunt me” context, no real doubt.

      As a business decision, I wouldn’t hesitate to use iBA in the way we’ve discussed. Another individual may assess that risk differently. Any business activity involves lots of risk management decisions. Legal risk isn’t special, it just has lots of structure built around it to make it look that way.

      Rich

  8. After reading a bit more of the EULA, I’m not so sure my initial impression was right. The use of work with a capital W does give me pause as it could mean artistic work that would include content. I’m just not completely certain. The separate written agreement referenced before any distribution seems to be key. Possibly that contains specifics of any exclusivity of content. Still, I think this is referring to files outputted from this software and not content, but without absolute certainty of that, I won’t be using it. Apple needs to clarify this ASAP. The longer they stay silent, the more likely it seems to me that this may be a rights grab.

  9. So, if Apple is going to do its own proprietary .ibook format, then why exactly did it become a member of the IDPF? What responsibility does a member of the IDPF have to support Epub3?

    (Amazon is not a member of the IDPF.)

    • This one is easy, Sherri. Apple wants to make sure ePub3 is as good as it can be, and so it participates in the standards body. At the same time, it wants to be able to have books as good as they can be. By controlling its own format, it doesn’t have to wait for the leviathan standards processes in order to improve the way it delivers content.

      Possibly annoying for other IDPF participants, but I don’t see a conflict. It’s not rejecting ePub, it’s saying that the lowest common denominator (the standard) is not the be-all and end-all of formats.

      • Sure, there’s a conflict; both were being defined contemporaneously. At the time Apple was participating in the definition of epub3, they were busy defining a format that broke it.

        Other companies have done this in the past; it’s called “embrace, extend, extinguish.” It’s how you attempt to kill standards if you’re a big company and don’t want a level a playing field. Think Microsoft and Java.

        • And Java is barely limping along following Microsoft’s attempted death blow, right? Nope. There’s more Java running the web right now than any 3 other languages combined.

          Standards are a good thing — you need standards to be sure that there’s _some_ way to make things work across vendor boundaries. Apple helped develop ePub3 and fully supports ePub. Pages, their word processor, produces very good ePub2 files. iBooks is a great ePub reader. Prior to the existence of iBA, ePub was the required format for upload into the iBookstore, and ePub is still fully supported in the iBookstore. For non-illustrated fiction, it’s probably preferred. Apple is doing just fine by the standards.

          But in any standards group, there’s always (at least) one company whose technology implementation and plans do a lot more than the standards support. There are lots of reasons for this: A lack of motivation to share better tech (as is likely the case with Apple), a lack of willingness on the part of other members to acknowledge that their technology is inferior (extremely common in networking standards bodies), or an inability to effectively implement the technically superior option fast enough to be competitive in the market. And, always, a desire for control.

          In any of these situations, what the responsible standards body member needs to do is 1) fully support the standard (check) and 2) decide if their customers and their business is best served by giving priority to the standard body or the standard+enhancement experience. (again, check)

          When both are well implemented, standard = highly functional, proprietary = optimized. Apple went for optimized.

          Rich

  10. All of you folks who say that the .ibooks format can only displayed in the iBooks application and therefore the EULA is ok should understand that you will be wrong someday. Someone will write a viewer for other platforms. I could do it for Windows. In fact, it would be a great project for someone to do to demo the new features of the Metro UI in Windows 8. Windows 8 is going to have an app store. Windows 8 tablets will be a new market for e-books. Microsoft will not try to dictate a format the way Apple and Amazon have because Microsoft doesn’t sell hardware for Windows (compare to Xbox where MS sells the hardware and acts more like Apple). We (readers and writers) need a format that allows for more precise control over element positioning and a limited amount of interactivity. We don’t need the continuing fragmentation of the market with .mobi, EPUB, .ibooks, KF8, etc.

    • That’s probably the motivation behind the EULA, actually — don’t take an Apple Product for free, and make a Bells-And-Whistles book with it, and sell it on a Windows store…

  11. As PG notes, if Apple intended “the Work” to mean only the iBooks program output, they could have said so in the EULA. I don’t think it’s an accident that they’ve chosen NOT to. Amazon’s KDP agreement specifies “Kindle book”, it doesn’t refer to “the Work” or “the content”.

    I also find it very troubling and suspicious that while the debate rages on out here on the interwebs, with some backing PG’s interpretation and others saying that interpretation is paranoid and wrong, Apple remains mum on the issue. If PG’s interpretation is wrong, shouldn’t Apple be only too happy to release a public statement putting these concerns to rest? And yet, they haven’t. That tells me something, and it’s not something good. =’/

  12. I think the key is in the written agreement you have to sign to sell in the ibookstore. Somebody needs to get something submitted and find out if there is content exclusivity in there. Another interesting question is what happens if you’re rejected by the ibookstore. First, the timing of the written agreement seems crucial. Do you sign it upon submission or after acceptance? If it does contain exclusivity, then upon submission would be particularly onerous. I think Apple would be wise to drop the can’t sell prohibition if they reject it in any case. Sort of a right of first refusal kinda thing, they get a shot and if they say no, then you’re free to sell it on your own. They can’t claim any damages in that case because they had the choice to get the 30% cut and said no. The EULA is pretty clearly against that as of now, definitely for the file format at least. Apple really needs to speak up about all this very soon or it is going to kill this effort before it gets started. Too many authors are confused and/or concerned and that will have a severe chilling effect on this software’s adoption and use.

  13. As an author, I took one look at that language when it came out and said, “No way in hell will I use that service either as a writer or a reader.” Apple has been draconian in their contract to the detriment of their greatest potential ally – authors. I really wish businesses would acknowledge the fact that without writers they would have no product to sell unless they are willing to write it themselves. Why do they have to rob the writer of credit where credit is due? Perhaps because business people do not realize the vast courage, skill, and determination it takes to succeed in writing. In addition is greed, plain and simple. As if Apple isn’t making billions already? They worked out an equitable solution with the music industry – I don’t know why they’ve gone the opposite direction with this.

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