Hiding dirty little gotchas inside of long, legalese agreements is nothing new. Companies have been doing it for ages. They’re starting to push the envelope more and more, however. Sony has used license agreements to prevent users from taking part in a class-action lawsuit (They’re being sued now). Not bad enough? Now it seems like Apple’s EULA for its iBooks Author publishing platform actually calls dibs on exclusive publishing rights to what you write with it, like if Photoshop laid claim to images you created with it. Needless to say, this severely affects your ability to sell your own work.
Basically, Apple says that anything created with the software, a “Work,” is subject to a few rules. First off, if you want to give it away for free, that’s fine, go ahead. If you want to sell it though, you have to sell it through Apple. What’s more, you very well may have to enter into an additional written agreement before you can start selling. What’s more, Apple reserves the right not to distribute your Work at all, for any — or no — reason, meaning that if you wrote something with iBooks Author and Apple doesn’t want to sell it, you’re out of luck. Also, when you agree to the EULA, you’re agreeing to accept “lost business opportunities or lost profits” as a result of use. Yeah.
Now before you get too worked up, there’s something here that bears emphasis. Apple is not claiming any right to your words, they’re claiming right to the Work. If you rewrite those words elsewhere, they’re still yours. If you export the Work, it’s theirs. This means that you can take your book elsewhere if you just export the plain text, but at the cost of formatting, which could be a lot of work on a whole book. Still, better than nothing. And iBooks Author doesn’t even seem to publish in the industry standard .epub format anyways, so there’d be issues with taking your exported work elsewhere.
As far as I can tell, this is the first instance of an EULA restricting the output of a program. Granted, EULA’s will tell you that you can’t use a program to make a certain kind of thing, but they never tell you what you can and can’t do with the things you’ve made. Fortunately, all this has come out before most anyone would have a chance to write any books, and things will probably be a little clearer if and when Apple gets involved in the conversation. For now, if you want to be absolutely sure you can do whatever you want with the words you write, stick with your usual platforms.
The offending language from the EULA:
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 mayincur 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.
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