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:
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.