“Better Read That Contract, Mister I-Wanna-Be-In-The-iBooks Store”

by wjw on January 21, 2012

Apple has just released its long-awaited iBooks Author, its application to convert a text file into an ebook suitable for sale in the iBooks Store.

But, according to our friends at venomous porridge, you should read your End-User License Agreement (EULA) very carefully before you download the application, because Apple demands control over what you do with your ebook after you’ve created it.

Except that you can’t read the EULA,  because it’s part of the app itself— you can’t read it before you download it, because it’s part of what you download, and then once you’ve downloaded it, it says that by agreeing to download the software, you’ve agreed to the EULA.

Wow.  Is that sneaky or what?

Here’s the crucial piece of the contract.

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, if you use Apple’s software to create your ebooks, and you’re not giving it away for free, you’re required to distribute your ebook only through the iBooks Store, unless you make a separate agreement with Apple.  (And I wish you the very best of luck with that.)

This is like Microsoft claiming control of any text you make with Word.  Or Apple claiming control of anything written with Scrivener.  Or Sun Microsystems claiming an interest in any program you might write with Java.

Now you pay for those programs, and iBooks Author is free, so Apple’s Robot Legion of Defenders are sure to point out Apple can attach whatever conditions it wants.  And that is true, although sticking the key provisions of the EULA in the download itself strikes me as unethical, and (though I am not an attorney, and you should consult an attorney before et cetera) is probably unenforceable.

And I should make it clear that Apple is not claiming the copyright.  You are free to use other software to convert your file to ebooks that you can sell elsewhere, and which don’t come with restrictions about where you can sell them.  Which makes iBooks Author less useful than software already on the market— though if you want to upload directly into the iBooks Store, rather than through a third-party middle man like Smashwords, you’re kinda stuck with iBooks Author.

Now Apple has always been insistent on controlling anything that can run on their computers.  But they’ve never claimed to control the user’s stuff before.

So what it boils down to is that Apple is evil.  They want to own everything, just like Amazon or Barnes & Noble or any of those guys.   You should be careful around them.  Read the fine print.

Just like you should read everybody’s fine print.

Ralf The Dog. January 21, 2012 at 6:59 am

Apple is claiming, they only have the rights to the version created using their software. You maintain the right to distribute your book in any other format.

wjw January 21, 2012 at 7:54 am

I know and understand that, and I thought that’s what I said.

I will try and say it more clearly.

Maxlex January 21, 2012 at 8:35 am

Evil is a bit strong for a business proposition that all parties are free to enter into. Apple is making available a tool, for free, but if you want to use it to make money, Apple gets a cut (and control). You’re right that the tool is less useful than others on the market, but you’re still free to use those.

The reason someone might want to use the software is all the flashy transitions and zoom able graphics, which (unless you’re secretly working on a multimedia novel, which would be cool) you’d have no interest in. You’re better off sticking with the existing tools, and publishing in straight ePub/Kindle/etc. But a company isn’t evil just because their software doesn’t meet your needs

Oh and it’s not like Apple is keeping the terms a secret, they were mentioned in the first bit of reportage I heard after the release.

Ralf The Dog. January 21, 2012 at 6:52 pm

After reading what you said, I think it was more my reading comprehension than your writing comprehension. (Writing comprehension?) I should try not to post comments about what other people have said after a long week of pounding code and a long night of blowing off steam.

Reading contracts is always a good idea. Paying a lawyer to read a contract for you is also a very smart move on something worth lots of money. Paying a lawyer does not absolve you from reading the contracts yourself.

wjw January 22, 2012 at 5:06 am

Maxlex>> Apple can certainly put out a less-than-useful product if they want, but I think their evil primarily comes from putting the EULA in the download, and having the EULA say that you accept its terms when you download it, before you have a chance to read the fine print.

That’s like me putting into one of my ebooks: “By downloading this book, you agree to make Walter Jon Williams your sole heir.”

TCWriter January 22, 2012 at 5:27 am

Apple’s always been arrogant (ask me how much I enjoyed freelancing for them in the 90s), and this kind of thing is what has caused me to label them the new Microsoft.

It’s painful to watch all the players trying to foist proprietary schemes on digital media; this kind of silo building guarantees chaos and ultimately fewer choices, not more.

Sure, everyone’s free to not use Apple’s iBook, but Apple’s also free to not hide onerous licensing agreements in the EULA, and certainly, people are free to criticize Apple for what has every appearance of a heavy-handed attempt at control.

grs1961 January 22, 2012 at 9:36 am

In the civilised world, that sort of license – where the act of reading it causes it to apply, or where it applies *before* it can be read – has been found by the courts to be invalid, regardless of the other terms in it.

YMMV in the barbarian lands.

wjw January 28, 2012 at 4:35 am

A lot of it depends on whether you’ve got a spare $100,000 to devote to a lawsuit.

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