Saturday, January 21, 2012

Apple's mind-bogglingly greedy and evil license agreement By Ed Bott | January 19, 2012, 1:32pm PST

Summary: Over the years, I have read hundreds of license agreements, looking for little gotchas and clear descriptions of rights. But I have never, ever seen a legal document like the one Apple has attached to its new iBooks Author program.

I read EULAs so you don’t have to. I’ve spent years reading end user license agreements, EULAs, looking for little gotchas or just trying to figure out what the agreement allows and doesn’t allow.

I have never seen a EULA as mind-bogglingly greedy and evil as Apple’s EULA for its new ebook authoring program.

Dan Wineman calls it “unprecedented audacity” on Apple’s part. For people like me, who write and sell books, access to multiple markets is essential. But that’s prohibited:

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.
Exactly: Imagine if Microsoft said you had to pay them 30% of your speaking fees if you used a PowerPoint deck in a speech.

I’ve downloaded the software and had a chance to skim the EULA. Much of it is boilerplate, but I’ve read and re-read Section 2B, and it does indeed go far beyond any license agreement I’ve ever seen:

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.

And then the next paragraph is bold-faced, just so you don’t miss it:
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.
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. Updated to add: By “it,” I am referring to the book, not the content. The program allows you to export your work as plain text, with all formatting stripped. So you do have the option to take the formatting work you did in iBooks Author, throw it away, and start over. That is a devastating potential limitation for an author/publisher. Outputting as PDF would preserve the formatting, but again the license would appear to prohibit you from selling that work, because it was generated by iBooks Author.

One oddity I noticed in the agreement is that the term Work is not defined. [Update: Yes, it is, as I noticed on a fourth reading. It's in an "Important Note" above the agreement itself: "any book or other work you generate using this software (a 'Work')." Of course, that uses the term "work" recursively.] It’s capitalized in the relevant sections of the EULA, and it clearly is the thing of value that Apple wants from an author. Leaving that term so poorly defined is not exactly malpractice, but it’s sloppy lawyering.

I’m also hearing, but have not been able to confirm, that the program’s output is not compatible with the industry-standard EPUB format. Updated: An Apple support document notes that “¦iBooks uses the ePub file format” and later refers to it as “the industry-leading ePub digital book file type.” But iBooks Author will not export its output to that industry-leading format.

My longtime friend Giesbert Damaschke, a German author who has written numerous Apple-related books, says via Twitter that “iBA generates Epub (sort of): save as .ibooks, rename to .epub (won’t work with complex layouts, cover will be lost).” Even if that workaround produces a usable EPUB file, however, the license agreement would seem to explicitly prohibit using the resulting file for commercial purposes outside Apple’s store.

As a publisher and an author, I obviously have a dog in this hunt. But what I see so far makes this program and its output an absolute nonstarter for me.

I’ll be writing more fully on this issue after I’ve had a chance to use the program and to inspect the EULA under a microscope.

Oh, and let’s just stipulate that I could send an e-mail to Apple asking for comment, or I could hand-write my request on a sheet of paper and then put it in a shredder. Both actions would produce the same response from Cupertino. But if anyone from Apple would care to comment, you know where to find me.

Taken from "The Ed Bott Report"

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