Apple has announced iBooks Author—a new program that makes it easy for anyone to create stunning and compelling eBooks. The End User License, however, restricts anything made with iBooks Author to distribution on Apple’s channels unless you give the book away for free.
NOTE: You can read a follow-up to this post outlining in more detail why the iBooks Author EULA doesn’t create an exclusive license and doesn’t steal your copyright here.
Thomas Claburn at Information Week implores authors to Just Say No to the iBooks Author software. John Gruber of Daring Fireball has stated that “this is Apple at its worst.” Dan Wineman has stated that “[i]t’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.”
Apple’s strategy of restricting how you can distribute what you create in iBooks Author sure comes across as petty and shortsighted. It certainly will rub the wrong way all the developers and publishers who have complained about Apple’s walled garden. But what does the license actually mean?
Read on to learn more.
You don’t lose your copyright.
The section people are complaining about states the following:
2. Permitted License Use and Restrictions.
. . .
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. (My own emphasis added.)
This is a wall of text, but what it essentially says is that you have to distribute the file you create in iBooks Author using Apple. This means you can’t take the file over to Amazon, or Barnes & Noble, or even your own website for distribution.
It says nothing, however, about copyright. Therefore, the content of the book you create still remains your own copyright. This makes sense under U.S. law, too. The only way to transfer copyright ownership under U.S. law (not license, but actually transfer a copyright) is in a writing signed by the copyright’s owner.
The restriction here is on the use of the file outputted by iBooks Author, not on the text you created to make the book. Therefore, the iBooks Author file can only be distributed under the terms of this license, but you could put the book’s text in another format, say the Kindle format, and distribute it any way you wish.
This is similar to the changes made by Apple involving in-app purchases that caused so many problems last year. Those changes forced Amazon to remove the ability to buy books through the Kindle App, and it removed the ability of magazines to process their own subscriptions. In-app purchases and subscriptions had to go through Apple.
Microsoft Office, and other software programs, have similar license restrictions.
One of the first intellectual property cases I had any involvement with was a case about Microsoft Office. A small business was turned into one of the various software licensing enforcement groups for using the Student version of Office. My involvement was limited to consulting with the lawyer defending the small business, as I was still in law school at the time.
Microsoft’s Home & Student license for Microsoft Office restricts the use of the product to essentially non-business uses. Section 12 of the Retail License in the Microsoft Software License Terms (MSLT) for Microsoft Office 2010 states:
12. HOME AND STUDENT SOFTWARE. For software marked “Home and Student” edition, you may install one copy of the software on up to three licensed devices in your household for use by people for whom that is their primary residence. The software may not be used for commercial, non- profit, or revenue-generating activities.
Similarly, the Macromedia Software End-User License Agreement limits the use of its educational versions for non-commercial purposes in Section 3(4). (“3(f) Education Versions may not be used for, or distributed to any party for, any commercial purpose.”)
The difference here is that Microsoft and Adobe/Macromedia are limiting software use, not the use of the outputted file. Nevertheless, Dan Wineman’s comment that this is like Microsoft trying to restrict what people can do with their Word documents is correct, but it is correct because Microsoft already does this with its Home & Student Office versions.
The power of a EULA to limit use is based on the software’s copyright.
An End User License Agreement, or EULA, grants the user of a piece of software the right to make use of the underlying copyright in the software. This right is limited by the terms of the EULA. Therefore, a EULA gains its power through the underlying copyright in the software program.
The reason you need a license to use a software program is that you usually must copy copyrighted elements of a program before you can use it. First, you must install it on your hard drive. Then, you must load portions of the program into your computer’s memory before it can work. Each of these steps results in copying of copyrighted code.
The EULA grants you the right to do this by licensing the programs copyright based on whatever conditions the copyright holder chooses. Microsoft chooses to limit the license of Office Home & Student to non-commercial, home-based use. Adobe/Macromedia chooses to limit the license of its academic version to non-commercial, academic settings. Apple, with iBooks Author, has chosen to limit its license such that the output of the program—the file created by iBooks Author—may only be distributed in specific ways.
What about the damages and losses language?
Some, such as Thomas Claburn at Information Week, have highlighted the language in the license that hold Apple harmless loss for any damages or losses because Apple has chosen not to distribute a work created by iBooks Author. This language, accompanied by the restrictions on distribution of books that folks want to sell to Apple-only channels, seems unfair. Apple, it would seem, holds all the cards.
And they do, but it’s not as malicious as it might first appear. The reality is that, without this language, such an undertaking would be impossible because of the legal risks involved. This hold-harmless language allows Apple to avoid death by a thousand lawsuit paper cuts, and this is why any service such as Apple’s iBook service will include this language.
For example, Section 6.2 of the iOS Developer Program License Agreement similarly states in part that
Apple shall 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 Application development, use of this Apple Software, use of any services, or participation in the Program, including without limitation the fact that Your Application may not be selected for distribution via the App Store or VPP/B2B Program Site.
In short, the iBooks Author EULA is not much different than what you already have to agree to in order to publish applications through Apple’s various app stores.
Make no mistake, this perpetuates Apple’s walled-garden approach.
Some have already pointed out how iBooks Author furthers Apple’s walled-garden approach. Apple does not argue its approach isn’t a walled-garden. Rather, it simply argues that its efforts are to create beautiful, simple products that benefit their users. One way it does this is by ensuring the user experience is uniform, and its walled-garden approach is the method used to achieve this goal.
I remember visiting London when I lived in England for a year. There were gardens within the city with iron-wrought fences around them. These fences had gates with locks, and the folks living in the neighborhood had keys to the locks.
These gardens were beautiful—you could see them through the fences—and a nice break from the hubbub of the London city sidewalks and streets. But there were also walls keeping folks out. The only way to get in was to play by whatever the rules for the garden were.
Apple’s walled garden is similar, yet different. The garden itself is beautiful—iOS is the market leader in applications for mobile devices, and iOS devices are quite good—but it is only accessible with the right keys to the locks. To get those keys, you have to buy Apple products—which are rarely the cheapest option for any type of product.
Unlike the walled gardens of London, however, it’s also quite difficult to take the flowers out with you. Some program engines allow this to a certain degree, but in the end what you do with the content is dependent on the rules laid down by Apple. Ultimately, Apple is a corporation looking out for its own best interests (and the interests of its shareholders), so you can’t expect favors from them unless those favors also benefit Apple.
In the end, I believe information wants to be free. Moreover, I believe it will become free. The more we try to lock it down, the more ways it will find to get free. Hackers hack DRM all the time, and people find ways of spreading knowledge even when folks try to lock it away behind gates and walls. Ultimately the walled-garden approach of Apple is doomed to fail.
Until then, I may just give iBooks Author a download and try. As I said, it is quite a lovely garden—and there is a reason so many want in, and so few want out.