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Uncategorized Friday, January 20th 2012 at 2:59 pm

Apple’s iBooks Author EULA Claims Publishing Rights to Any Works Written with It

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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.

(via ZDNet)

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  • iTard

    yawn. could do it for years now.

  • http://mildlyupsetting.blogspot.com/ Greg Edelston

    Scumbag Steve.

  • AppleFUD

    I’ve been reading elsewhere where it has been raised that the legalese of the word “work” does refer to your content NOT just the formatting.

    This actually makes more sense when you think about.

    Why would apple even bother with these clauses unless they were trying to take ownership over your “work?” Since it outputs in an ibooks proprietary format of course you are going to be selling it ONLY via ibooks–the only clause they need to ensure that to be the case is, “any ibook formatted output of ibooks author. . .”

    Instead they go with “any work.”

    I think apple knows they are trying to get new writers to fall into this trap–it’s not much different than when a new writer signs with a publisher and the publisher wants to pay a one time fee for the copyrights to the book = “the work.” 

    Something smells fishy here! And you all know that apple would have already clarified this issue due to all the stink that’s being made if it was just over formatting for the specific ibooks proprietary output.

    I’m betting that apple is trying to be sneaky and take ownership of your “work” and if you publish anything that is “identical” anywhere else they will come after you. This means you would have to literally rewrite the entire book as NONE of the content could be identical.

  • http://newstechnica.com David Gerard

    This is not historically unprecedented. The earliest personal computer compilers wanted a royalty – Microsoft BASCOM (a BASIC compiler for CP/M) wanted 9% of any saies of binaries generated by the program. This precedent suggests that the Apple EULA means just what it appears to: use iBook, and you can only sell your book through them.

  • The Resolute Voice

    FYI John Wiley & Sons puts some of the same language in its contracts.  I saw the language references “work” and “future work” and immediately asked a rights lawyer. He said not to sign the Wiley contract unless they deleted that language. They wouldn’t, so I didn’t sign it.

  • Cjt_au

    Man, I like someone to tell me I’m wrong, but as I understand it, if a big publishing firm such as Random House put enormous investment into the book (easily $20,000 or more per book title) by bringing together a team of experts to turn a manuscript into a professional book, then they pay heavily for advertising/marketing (quite easily another $20,000, and don’t be surprised if it costs them $100,000) to give the book the best chance of selling to consumers (much more than any individual can do on their own), wouldn’t the firm have to at least recoup the costs? And why not a bit of profit on the side too? Sure, the author may get 10 per cent of the profit or less, that’s just to ensure the firm recoups the costs quickly. Afterwards, the firm can swim in a sea of profit if the book does really well and the author won’t complain if he/she see’s a cheque arriving in the mail exceeding $100,000. Apple is kind of doing the same thing in terms of making use of expert developers who developed iBooks Author. The fact that the tool is free is just a clever marketing “carrot” to get people to use the tool and make books with the caveat of selling the books only on the Apple iBookstore. That’s how Apple will make the profit from selling books. Perfectly understandable. What companies such as Apple are realising is that authors can literally do everything themselves from writing the book to creating the eBook and eventually selling the eBook anywhere they like at virtually no cost to them. Companies don’t like the idea of seeing authors make 100 per cent profit. The companies involved in the industry have to look relevant and useful to authors. Apple knows this and has found another way to get a slice of the profits compared to the traditional publishers – by offering a free tool. But the big advantage to Apple is that they don’t have to do anything for authors to promote and sell the book. If authors want to do it all themselves, that’s perfectly fine by Apple. But if you use the tool to create the eBook, well Apple is entitled to ask for some profit (the only way to see better versions of the tool come out for authors). You can’t blame Apple for at least being smart in a business sense.

    Perhaps, as an alternative, what Apple should have done is provide two options to authors: (i) provide iBooks Author for free but sell the ibooks generated by the tool only on iBookStore, or (ii) give a flat rate fee for how much it costs to purchase a copy of iBooks Author and let the author sell the iBook anywhere he/she likes. The fact that Apple doesn’t offer the latter option speaks volume about its business strategy of trying to become the dominant player in the selling of digital eBooks just as they have done for music while maintaining a steady stream of profit to enter the company’s cashflow and make shareholders smile from ear-to-ear.