Jack Wallen investigates the Apple iBook EULA and explains why authors better beware of what they are agreeing to if they use the iBook publishing platform.
Imagine if Microsoft attempted to lay claim to anything you had written using MS Word. Or what if Adobe took you to court saying the images you created using Photoshop were their property? Companies have been hiding dirty little secrets in their End User License Agreements for years. They couch these nefarious deeds within the legalese, knowing full well that most users either (A) Don't read EUlAs or (B) Wouldn't understand the legalspeak to begin with.
Well that's exactly what Apple is doing with their new iBook Author publishing platform. If you read the EULA you will first come across this little ditty (in bold at the top):
If you charge a fee for any book or other work you generate using this software ... 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.
Following that, in Section I, you'll see:
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.
This is new to me in that Apple is making the user know that they claim right to not only the software, but the output of the software, and of that output, Apple wants a cut. Now, for those that have actually tried this software out, you notice there is nowhere to accept or decline the license. Some authors are willing to take a chance with this and ignore the verbiage in the EULA. I'm not. Why? I am simply not willing to go up against a team of Apple lawyers. I'm told they eat their young. I am simply not willing to chance going to battle with one of the most powerful marketing machines on the planet.
Okay, I'm going to digress just a bit, to explain why this is fairly broad-reaching. I am an author directly affected by this. I sell books on Amazon, Barnes & Noble, Smashwords, the iPad bookstore, the Sony bookstore, Kobo, and more. For both Amazon and B&N, I use their author portals for publication. For all others, I use a service called Smashwords. Smashwords serves as a distributor for all other ereader platforms and, although not perfect, by no means are they pulling stunts like this. End of digression.
Apple announced a while back they would be creating their own publishing platform. Of course everyone assumed this platform would:
- Serve the public in similar fashion to that of the other platforms (in other words -- be web-based).
- Not restrict the user from publishing their work elsewhere.
Now, here's the thing -- what it SEEMS is that Apple is restricting the output of the program such that the user cannot take the created file and publish it elsewhere. That's fine for most -- IF that's the case. But no one seems to really quite understand this bit of legalese because there is no precedent. And because there is no precedent, it will take the first lawsuit to figure this all out (unless Apple gets smart and rethinks this issue all together).
Knee jerk reaction to Amazon
There's one other issue at hand, one that most people not directly involved in the publishing industry wouldn't know. From what I have seen, this is a direct response to the Kindle Select Program. If you're unsure -- the Kindle Select Program allows authors to enroll their works in a program that requires ninety days exclusivity, but then gives that author some benefits (such as being part of the Amazon Prime machine and being a part of a fairly sizable pool of money to be distributed to all authors -- based on sales and other factors). It's that exclusivity that Apple doesn't like.
Thing is -- Apple book sales are a pittance compared to Amazon and Barnes & Noble. Why? Because authors cannot directly publish with them -- or couldn't before the iBook Author program (and because the Kindle is, by far, a more popular ereader than the iPad). Now, authors with a Mac or iPad can publish directly to the Apple Bookstore -- if you are willing to agree to the EULA.
I'm not. So Apple will be without my books. Or they would, had it not been for Smashwords.
Why is this important to you?
Simple -- EULAs are changing. Companies are inserting disclaimers inside their agreements, assuming you won't read them, that could cause the user serious issues. Because of this, you should be reading these agreements. You wouldn't want to find out all that data on your server actually doesn't belong to you because it's being served up by a platform who's EULA (that you agreed to) states "All content served by this software is the legal property of US".
Apple is going to lose on this one. Very few writers I know will agree to these rights simply because they want their work distributed by as many platforms as possible. And until Apple retracts both the language and intent, this new tool of theirs will die a slow, lonely death.