
The Audacity of the iBooks Author EULA - pooriaazimi
http://venomousporridge.com/post/16126436616/ibooks-author-eula-audacity
======
tstegart
I think this guy is wrong. He's mixing apples and oranges when it comes to who
owns what. Apple is requiring people who use its software to create an e-book
to give Apple a cut of the proceeds of the _Apple created e-book_. The author
still owns his or her content. If you want to sell your book, just don't sell
the form of the book made by Apple's software. You can still sell a PDF, for
example. Or you can sell your Word file. You can sell anything really. But if
you want to sell the nice design Apple lets you make, you have to give them
money.

I believe you can simultaneously sell an e-book in the iBookstore and sell a
non-Apple created e-book with the exact same content somewhere else. For
example, a word document turned into an e-book on Amazon. Just don't try and
sell your Apple created e-book on Amazon, that's all.

~~~
troymc
Indeed, there's a new ebook-production service (still in beta) named Vook
which aims to give authors the ability to produce ebooks in all the major
ebook formats, including EPUB, Amazon's formats, and now whatever Apple calls
their new iBooks 2 format. An author would use Vook's software, not Apple's,
so the iBooks Author EULA wouldn't apply. Smashwords offers a conversion
service similar to Vook's, and is much older. (Disclosure: I have no
association with Vook or Smashwords. I've just been researching the ebook
industry recently.)

Ref: [http://www.vook.com/blog/2012/01/ibooks-2-another-
opportunit...](http://www.vook.com/blog/2012/01/ibooks-2-another-opportunity-
headache/)

~~~
halostatue
iBooks 2 format is more or less ePub3, as I understand it. I could understand
it incorrectly.

I can also speak fairly highly of the leanpub team's process. My wife and I
are finding it less than perfect for our needs in producing a fiction book
with both ebook and print-ready book needs, but appreciate the directness and
promptness with which both Scott & Peter have been responding to us when we
are raising issues with what we're seeing.

Better yet, their conversion is free with no commitment to sell your book on
leanpub required. I'd happily _pay_ for what they're providing for free
because it's so damned easy.

------
ryanwhitney
I'm not seeing why this is so unreasonable, if someone could fill me in.

The program is for creating iBooks, not eBooks, to be sold through their
iBookstore. I'm seeing these more as apps than something like .ePub files or
.PDFs.

Unlike apps though, which require an developer license to load yourself,
Author gives anyone the ability to run these books on your iPad. It also gives
anyone the ability to distribute an iBook _outside_ the iBookstore.

Since licensing every person who wanted to create an iBook would be a pain in
the ass for Apple and a barrier to creation, this seems to be the next good
option.

It prevents anyone from creating their own iBook marketplace (reasonable) and
profiting off of a software that Apple is giving away for free, under the
agreement that products of it are sold though their marketplace. No?

~~~
nchuhoai
"It also gives anyone the ability to distribute an iBook outside the
iBookstore."

That is exactly what the author complains about, you cannot distribute an
iBook outside the store:

"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"

~~~
Someone
IANAL, but an obvious workaround is to sell the eBook version and add an iBook
version for free with every order.

Problem with that approach is that receivers of the iBook can distribute
copies at will.

~~~
jasomill
IANAL either, but Apple's lawyers _are_ lawyers, so rest assured that they've
thought about this, as well.

I suspect the answer is this: you're free to sell the e-book version for a fee
and give away the iBooks version: this just makes the iPad a more attractive
product and undercuts your own e-book sales. This is probably a stupid move on
your part, but that's hardly Apple's problem.

But giving away the iBooks version _only to purchasers of the e-book version_
is equivalent to the iBooks version being a "feature" of the (non-free) e-book
version, which is quite different than "giving away the iBooks version". This
would also apply to giving away the iBooks version, but only to members of my
fee-based "book club", subscribers to my fee-based newsletter, and so on.
Otherwise, what stops textbook publishers from selling non-iBooks "teachers'
editions" for $10,000, then giving away copies of the iBooks versions to
students enrolled in courses taught by holders of teachers' editions, then
passing the $10,000 cost on to students by way of "enrollment fees" or tuition
hikes, offset by the fact that "textbooks are now free"?

------
alexqgb
If the cost of using the software is giving up clear title to your work, then
it's a very high cost indeed. A deal that big needs to be advertised - boldly
- up front, not buried in the ELUA, then popping up _after_ you've committed
time and effort to a work.

I can understand them saying that wanting to use the Apple store means giving
them the same 30% cut that they charge for in-app subscriptions, and demanding
that you adjust your prices on all other platforms to remain competitive.
That's hardball, to be sure, but it respects the integrity of ownership.

This, on the other hand, is the same pattern that gets people hauled in on
anti-trust charges. They're not a monopoly (yet), but I have a hard time
seeing how this extraordinary claim of ownership in the work of others is
anything less than the type of platform-abuse the anti-trust law specifically
bans.

------
cjoh
Can someone explain this a bit better to me?

Let's say I write a book called "My Awesome Comments from HackerNews,
Unabridged" (MACFHU) using Microsoft Word.

And I send that to my publisher, retaining all rights to publish the book
still.

Then I adapt MACFHU for iBooks using the iBook Author tool. Would I then be
prohibited from selling my book in the iBookstore because it's already
available in hardcover? If I published it first in iBookstore, would my
publisher be prohibited from publishing it in hardcover?

Or does the iBooks EULA basically say: "This is a specialized tool that you
should use to publish books on the iPad." You can certainly publish your
content on other platforms as well, but you'll need to format it using other
tools. Check out InDesign, for instance.

I need some clarification.

~~~
bradleyland
It is the latter. Only the output is restricted. The material belongs to you.

~~~
cjoh
So then what's the problem?

~~~
bradleyland
There appear to be two complaints:

1) Apple hasn't made clear enough that by using "iBooks Author", the only
distribution channel you can use is Apple (de facto in that you must pay them,
regardless of how you distribute).

2) There is disagreement that this is a good direction at all.

Point #1 is the one made by the author of the submission. With regard to point
#2, I feel that Apple should be free to do what they want with their platform.
I also feel that people should be free to openly disagree with them.

------
__david__
Initially I had an unfavorable opinion on this. But I started thinking about
game engines: When you use the Unreal or Unity game engine authoring tools,
you don't expect to be able to sell your game without giving the game engine
company a cut. It might be a flat rate, but that's basically the same thing.

Apple are providing authoring tools for their "iBooks 2" engine and are not
out of line expecting a cut of the profits...

~~~
arien
You are giving them a cut partly because your application will contain parts
of their source code. I think it's not a good/exact comparison.

I think the ownership is about the output format, not the contents itself, so
it could be better compared to InstallShield, for example. It is used to
package and easily distribute/install your Windows programs.

If it was free but they'd requested similar conditions to those in the iBooks
EULA (that you can only distribute it in their own channels, that they might
reject your program if they don't like it, etc.), would you still consider
them for distribution?

------
drcube
When is Microsoft going to get the bright idea to incorporate everything
anybody writes in Word or Visual Studio into their own IP portfolio? Or Adobe
appropriates the copyright of any image edited with Photoshop? Here's to the
crazy ones.

~~~
jasomill
Presumably when Microsoft starts giving away Word and makes Visual Studio a
compelling platform for cross-platform development?

In all honesty, given the iPad's share of the tablet market, making
unrestricted, high-quality, cross-platform interactive content development
tools available to iOS developers at no cost might provoke antitrust claims
from the likes of Adobe. But Adobe isn't likely to sell expensive digital
publishing software to authors of free books, and mainstream publishers are
unlikely to commit to "iPad exclusive" titles to avoid a few thousand dollars
in software licenses.

------
eob
There's another bit that nobody has brought up: no author ever ends up owning
the entirety of his or her work. If I write a book for Harper Collins, I am
not allowed to reproduce or distribute that content via any channel not
approved by them, and they give much worse than a 70/30 cut.

As hackers, we are debating these books as if they are software, but remember
that they are products at the intersection of two industries, and publishers
have had authors in restrictive and less-than-lucrative contracts for a long
time.

------
delackner
What lead us to this point in history where people whine and go on tantrums
about the injustice of being given powerful free tools produced at great
expense?

I think the root cause is the anti-piracy war, going on ever since the dawn of
the computer age. The endgame may be an angry backlash of anti-copyright
extremism gaining mainstream support. We may see a day soon when the voters
demand an end to all copyright. Who knows what the end result of that would
be.

------
wazoox
Hardly surprising coming from Apple. Gosh, that stinks nonetheless. On the
other hand, this probably would be nullified by any reasonable court, wouldn't
it?

------
aidenn0
I don't see how this is substantially different from EULAs that restrict usage
to non-commercial. It's basically "non-commercial, except" so you have
strictly more rights than with e.g. the non-commercial version of CadSoft
eagle.

------
pmr_
I recently thought a lot about the relationship between user input and program
output and what implications the transformations performed by the program have
on the copyright. Consider a heavy optimizing compiler: The program you feed
into it will often be entirely different in terms of execution, but not
result, from the user input. Some optimizations might even hide bugs that the
original program might have had. At what point would it be justified to
consider the program (or the creator thereof) to have some implied copyright
on the produced output. Do we need to consider the smartness of the applied
algorithms? Is it necessary for a program to be considered a true AI to hold
the copyright to something?

Anyway, I don't see how that applies to a pretty printer for books. A mere
tool is only that. I don't see why it should restrict my ability to
commercialize my product. If someone were to suggest that the producers of
pens, paper or canvas should have a say in how artists are to sell their works
people would just laugh at him.

~~~
wvenable
Actually, there is already precedent for these ideas in the copyright laws.
The creative work is the input and mechanical transformation is not something
that can be copyrighted in of itself. A compiler itself is a creative work.
But the mechanical process of compiling a file is not a creative work. It
seems pretty clear cut.

I imagine only true AI could hold the copyright to something -- and even than,
the laws may currently be limited to human creativity.

------
fleitz
Use iBooks Author to generate works for iBooks use another tool to generate
works for other media.

IANAL but I don't think they're saying that if you use iBooks Author to make
your work available for iBooks and use amazon's tools to make your work
available for Kindle that you'd owe Apple a cut of your Kindle revenue.

------
nchuhoai
I think the important thing to note is that the author is not complaining that
Apple wants a cut. The author is complaining that you have to do it through
the App Store. And in that regard, I do agree that this case is unprecedented,
that a EULA restricts the distribution channel.

------
petrovg
Don't use it then... Simple. Write your thing in what you like and sell it as
you like. Write it on paper even. And sell it. Or don't sell it, just give it
away for free and see how many people get your superior thinking and go
downloading you on a scale that will bring the Internet down...

You can get the payment, thats easy, you only take cash, there an ATM round
the corner. Distribution is easy too isn't it.

If someone is unhappy about it, you can handle the returns. Or, no, sorry, of
course you don't do returns. This is YOUR intellectual property - once they've
got it, they may have photocopied it, you don't want your work to go around
for free, do you.

In all fairness, you really don't need this - your website is already drawing
an enormous attention and everyone wants a cut of it....

------
Locke1689
You can certainly put anything you want in a EULA. Whether or not this is
enforceable is another matter. Has any court ever upheld this kind of
contract?

~~~
unavoidable
It would likely be enforceable unless the term is "unreasonable" or
"unconscionable"... although we certainly may not like it, I don't think it
would necessarily meet those thresholds in a court of law because there are
other alternatives to publishing using iBook.

<http://en.wikipedia.org/wiki/ProCD_v._Zeidenberg>

[http://en.wikipedia.org/wiki/Contract_of_adhesion#Contracts_...](http://en.wikipedia.org/wiki/Contract_of_adhesion#Contracts_of_adhesion)

------
cjensen
In the Good Old Days, you had to pay a royalty to your compiler vendor when
you sold a copy of your own program.

So what Apple is doing is legal and has precedent. But it's stupid so I hope
and expect that they will fix this.

------
unsigner
How is this different than Microsoft giving away a version of their C++
compiler as part of the Xbox development kit which can only produce
executables that can be sold via Microsoft to people having Xboxes? The
comparison is favorable to Apple, as they allow free books, unlike the console
vendors.

In both cases, the platform vendor is giving away nice dev tools in order to
get more content to sale on his platform.

(read Microsoft as "Microsoft, Sony and Nintendo")

~~~
ConstantineXVI
> How is this different than Microsoft giving away a version of their C++
> compiler as part of the Xbox development kit which can only produce
> executables that can be sold via Microsoft to people having Xboxes?

You mean like this[1]? Applies to both Xbox and WinPhone. Apple also gives
away Xcode, but you can't make iOS apps outside of their dev program.

[1] <http://create.msdn.com/en-us/home/getting_started>

------
extension
Is Apple claiming this restriction applies to the _content_ of the book, or
just the output of their app? Can I transcribe my book into another program
and then sell it independently? What if the book is already written and
published and I'm transcribing it into an iBook?

And of course, if transcribing bypasses the restriction, then simply
converting the file to a different format must do the same, right?

------
jinushaun
Don't see the problem here. The app makes iBooks—not eBooks. The iBookstore
sells both iBooks and eBooks. Publishers can sell their book in iBook or eBook
format. If you want to sell iBooks which only works on iOS, you have to go
through the iBookstore. Nothing prevents them from selling eBooks instead.

------
ekianjo
Get an Apple typewriter. Write your Book. Once it's done Apple knocks on your
door, tells you that you have to sell their book in their store, and they will
take a cut from it. And if you are against that, you can't sell it at all.

So much for the 21st century progress and freedom to own what you create.

~~~
pieter
I like the similarity, but you have to make it more honest:

You're a writer, but don't have a good typewriter. Apple is willing to lend
you one for free. The only issue is that if you then want to sell your book,
you have to sell it through Apple's store. If you don't sell a single copy,
Apple won't charge you for the use of the typewriter. If you sell a lot of
copies, Apple gets a cut, both for the book being in their store (publicity)
and the use of their typewriter. You're still allowed to use different
typewriters, and you can even sell books written on a different typewriter in
Apple's store, though they'll still take a cut.

Doesn't sound terribly unreasonable to me

~~~
ekianjo
I did not see your comment until now.

The only part where i have a problem is the exclusivity. Apple may own the
typewriter but you own the words that you write. I think Apple may have a
ground to charge you for using their typewriter somehow, but restricting where
you decide to publish your work goes far, very far.

In the end, it's a matter of being in agreement with the contract. I doubt
anyone reasonable would accept such terms willingly - an author wants to
spread their works as much as possible, and not limit them to a single
marketplace.

------
shaggyfrog
Apple would be smart to change this ASAP. It's bad PR to have this kind of
problem present on your launch day. Not to mention a really bad clause to have
in the first place.

------
xaxa2000
why not just use vi, nano, writemonkey or even word for writing your book and
leave apple behind?

~~~
ryanwhitney
why not use dogpile to search the internet?

------
lelele
It's reasonable to ask for a cut on your software output, if the author is
giving it out for free. While should they give out their work for free to
people who are going to make money out of it?

Actually, asking for a cut could become a standard option for selling software
where you would offer at customer's choice:

\- GPL;

\- commercial license, paid upfront;

\- commercial license, paid by royalties.

That way, people who don't agree to the GPL, but still think your commercial
license is too expensive compared to their expected earnings would have a
further option: no gain, no pain.

As a side note, one of the reasons I prefer software which comes with standard
licenses (GPL, BSD, etc.) is that I know what those licenses say, and I can
click on "I agree" without worrying about the fine print. If the license text
differs in some way from its template, authors are explicit about that.

------
mkr-hn
Someone with legal expertise should go over this looking for something that's
less obviously harmful. I can't imagine Apple's legal team not realizing this
would come out.

~~~
unavoidable
That's the thing - they probably did look over it. The EULA clause may or may
not be bad business, but that doesn't make it unenforceable. There doesn't
look to be anything that is legally out of place here. By agreeing to use the
iBooks Author software you are agreeing to those terms - it's a contract.
That's been settled law for a while now.

The only reason it would be unenforceable is if the terms are unreasonable.
Unreasonable is pretty specifically defined in the common law, and it doesn't
just mean that you and I don't like it.

In this particular context you would probably have to prove that there is
economic duress, which might be a valid argument if Apple owned a monopoly on
all textbook producing software and electronic textbook sales - which as of
right now, they don't.

So barring something else more monstrous lurking in the EULA I'm not convinced
that anything can be done about it (in court).

------
rshm
More of a precursor to apple centered DRM for books i would say. And as always
apple using its market advantage on everything it touches.

~~~
gurkendoktor
The iBookstore has always used DRM. I can easily see how DRM is the most
economic options for eBooks right now - eBooks are more than $.99, so they
needed a barrier between the internet's vast reservoir of PDFs and owning a
pretty ePub file. (I still wouldn't buy DRM-ed books)

But the article is about _the authoring tool_ , and Apple was going to produce
it. So they had two primary options to protect their interests:

* Write an EULA and trust the law * Use DRM in _all output_ or otherwise proprietary formats (and implicitly trust the law as a backup)

I'm not saying we should be thankful for the EULA's wording, but for people
who hate DRM for practical reasons, this is probably the best realistic
outcome.

If you hate DRM for ethical reasons and think that all content should be free,
then be happy about a free tool and write content.

Only if you wish you could use Apple's tool to make money on another platform,
well you are out of luck.

> And as always apple using its market advantage

That must be a very limited 'always' :) I don't see how they abused the iPod's
market domination much. The iPad is the _only_ other product where they have
an advantage in numbers, but I am not sure if that extends to the iBookstore
at all.

~~~
gurkendoktor
> * Use DRM in all output or otherwise proprietary formats

Oh well, I just discovered iBooks Author does use a proprietary format, not
ePub. Then of course it is not as useful for authors of free content.

------
Nick_C
I think it stinks. But...

Give it to your wife/husband for free.

Wife sells it for whatever and however she wants. Apple have no comeback.

------
Firebrand
Isn't this sort of the same thing Amazon requires for their Kindle Direct
Publishing program?

------
nirvana
Over the years I've seen a large volume of creative software, often free, that
is used to produce output, that requires, as part of its license, that you
give the creator of the software a cut if you sell any of the things you make
with it.

This includes everything that is "free for non-commercial use", such as, if I
recall correctly, Blender (in the past), most of the Free Fonts out there, and
a lot of free software.

Edit to add: This means everything under the CC BY-NC-SA 3.0 license. There is
a huge amount of content distributed this way.
<http://creativecommons.org/licenses/by-nc-sa/3.0/>

The iBooks Author Software is an Apple provided development tool specifically
for the purpose of creating iBooks for the iBookstore.

You can give your books away free in the iBookstore, and you can also, as you
note, output the results in a variety of formats not suitable for the
iBookstore. Those are a nice bonus.

Sometimes I get the impression that people think that everything should be
free, for any use, and that the people who create these free things should
have no right (or that its "audacious" to exercise some right) over what terms
on which they distribute these free tools they create. (Or maybe only the
"right" to distribute them on terms _you_ agree with.)

Apple is providing a free tool, and the restrictions that come with it are the
cost. Either the value of that tool to me exceeds the cost, or it doesn't.
(and the "glovebox" example is nonsense, the EULA is part of the Mac AppStore
sales process, you could read t before downloading the app.)

It is the same way with the Free Software Foundation. If they made a tool
called "ePub Author" and that tool-- especially if it included templates and
copyrighted imagery and other work, as iBooks Author does-- required you to
license any works created with the tool under the GPL, then I'd make the same
evaluation- is that restriction a cost that exceeds the value of the tool or
not?

If you don't like the EULA, feel free not to use iBooks Author and use
whatever tool you like that's value proposition is one you prefer. To rail
against Apple for providing this tool seems to imply that you feel they owe
you something.

Very often today we've seen Apple offer all kinds of new and innovative
things, and I've seen a content stream of comments along the lines of "these
are bad because apple profits from them". Of course Apple profits. We all
profit, though, because they changed the economics of the education situation.
If you want something different, create it.

We're not entitled to demand people to produce things for our benefit in ways
we dictate, at no possible benefit to themselves.

UPDATE:

Further points:

1\. iBooks produced by the iBook Author software contain with in them Apple
copyrighted code, both javascript and HTML, and thus are derivative works. It
is not just images and layout. Since every open source or GPL project imposes
restrictions on derivative software, it seems reasonable for Apple to do so as
well.

2\. Imagine if this product had been released to ONLY support iBooks in a
proprietary format. Apple released a tool last year called iAd producer. This
produced ads but only for the iAd network. It is completely proprietary.
Nobody complained.

Would those who think these terms are unreasonable have complained if Apple
_hadn't_ included the ability to output in a standard ePub format, and the
ability to distribute derivative works for free?

Is it really the case that making this tool more restrictive by limiting its
interoperability would have removed these complaints? If not, how can you
complain about Apple producing a tool to support their proprietary book
format? Is Apple required to make all software capable of supporting whatever
you want to do with it ? Should Xcode be require to produce Android apps?

~~~
dman
The exact analogy in FSF terms which you were careful to avoid is - An
executable created by a GPL compiler will have to be GPL licensed. This is
where your analogy breaks down because this is explicitly not the case.

~~~
eridius
If I remember correctly, the GPLv3 license prohibits creating DRM'd content.
Or more insidiously, a GPLv3-licensed compiler (e.g. recent GCC) cannot be
used to produce an executable that contains DRM code without being in
violation of the license, despite the fact that the executable itself is not
covered under the GPL.

Someone please correct me if I'm wrong. I'm not willing to wade into the sea
of legalese that is the GPLv3 right now just to verify this.

~~~
makomk
As far as I recall, the GPLv3 has two different anti-DRM restrictions, neither
of which does what you say it does. The first restriction is that if you
include GPLv3 code in certain kinds of consumer hardware and it accepts
firmware updates, you must give the end users any keys that are required to
install and run their own modified version of that code. The second
restriction is intended to exempt any DRM system based around GPLv3 code from
anti-circumvention laws. There's no restriction on compiler output that I'm
aware of.

------
drivebyacct2
For better or worse, why do people continue to be surprised when Apple does
these things? They make good stuff, their users don't care and developers
still flock to them. It's like raging at Adobe because Reader sucks, even
though plenty of decent, light-weight PDF readers exist.

If you don't like the EULA, don't agree to it and use something else.

~~~
tikhonj
Yes, you should _not_ use it. However, given that this is an odious practice,
you should also attempt to raise awareness: the more people know, the fewer
will run into it. This is exactly what this post is doing, and it is a good
thing.

~~~
drivebyacct2
Sorry, it wasn't so much a reaction to the content of the post as much as the
pseudo-"outrage" expressed by some here.

------
manmal
I say, let the consumers (=authors) decide - evolution happens through
disruption, and this surely is a disruption. If the authors fall for it, well,
they are ok with the consequences. If the thing really takes off and public
really cares and puts pressure on them, they will loosen the EULA, I'm sure.

