An honest question for the TSA

Every day at your airport checkpoints, you screen thousands of passengers for objects that could conceivably be used as a weapons. If you find one, you confiscate it, and the unfortunate traveler continues on her way, cupcakeless but no longer a threat to national security.

You’re also looking for explosives, which is understandable. If you found a live bomb — I mean, not that you ever have — but if you did, well, that would clearly be one terrorist caught and many lives saved, right? That is, assuming you actually remembered to do something about it, of course. But everybody makes mistakes and I won’t blame you for that. I’m sure someday you’ll stop being a complete waste of money. Really, we’re all pulling for you.

But here’s my question. Suppose I, a normal taxpaying non-terrorist type guy, were to bring through a checkpoint something relatively harmless but still against the rules: not a bomb but, say, a pocketknife. You’re going to take that away from me, right? But why? If I’m not a terrorist, how is it dangerous for me to have a four-inch folding knife in my trousers? It’s staying there until well after we land, unless Amazon Prime really improves. Or do you think I might suddenly decide to abort my vacation, abandon my family, and throw my life away in a fit of deranged violence when the captain interrupts the in-flight Mad About You for the seventh time to announce that one of the shittier Great Lakes is on the other side of the plane? Right when Murray the dog is about to make Paul Reiser get a little bit annoyed?

Of course not, because you are an organization of highly intelligent cupcake confiscators. The only logical reason for you to take my knife from me is that you think I’m a terrorist. You’ll smile and shake your head at the dopey terrorist, and you’ll go tsk tsk, and then you’ll let me through to board my flight.

So, TSA, answer me this: why are you allowing suspected terrorists onto planes?

Intent Doesn’t Matter

John Gruber wagers that Apple doesn’t mean what it says in the iBooks Author EULA:

I’m willing to bet cold hard cash that Apple has no intention to and will never try to stop a publisher or author from taking content written in iBooks Author and publishing it elsewhere in another format. No one will ever hear from Apple after exporting from iBooks Author to text or PDF.

But I think the license is crummily written, because it’s not precisely clear what Apple is saying. If Apple wants to make bold and far-reaching licensing restrictions, they should express them clearly and succinctly. Whereas I think, much like with the App Store, their lawyers seek to express the legal restrictions in terms far broader than what they actually seek to enforce. I’m willing to make the above bet based on my understanding of the company and the way Apple thinks, not the language of the EULA.

I agree; I don’t think Apple plans to restrict anything but its own .ibooks format. But that doesn’t matter because, as Mike Ash puts it, “Unless we’re friends, your intentions don’t matter to me at all, only your actions.” Apple isn’t anyone’s friend but Apple’s, and its actions so far are to reserve a broad swath of rights pertaining to everything iBooks Author is capable of “generating” (whatever that means).

Even if we’re right and Apple doesn’t care about PDFs or plain text files, that’s still the Apple of today. The Apple of 20 years from now might turn out to be a completely different company, and this EULA has no expiration date. That’s a dangerous situation for authors and publishers who care about long-term distribution rights. It would be best for Apple to clarify the terms now — and, I hope, loosen them — rather than prolong the uncertainty.

UPDATE (3 Feb. 2012): They just did.

Why I like shopping at the corner store

Customer: Is that Etta James you’re playing?

Clerk: You bet. All Etta, all day long. It’s Friday, girl!

Customer: Nice tribute. It’s so sad that she died.

Clerk: She DIED?

Common Misconceptions about What I Wrote Yesterday

In a probably-futile attempt to stem the tide of redundant comments, I’ll address some of the more frequent reactions to my last post:

If you don’t like it, don’t use it! Duh.
You’re missing the point. The issue is that this is a software EULA which for the first time attempts to restrict what I can do with the output of the app, rather than with the app itself. No consumer EULA I’ve ever seen goes this far. Would you be happy if Garage Band required you to sell your music through the iTunes Store, or if iPhoto had license terms that kept you from posting your own photos online? It’s a step backward for computing freedom and we should resist it.

Plenty of EULAs restrict what you can do with software. That’s the whole point.
Yes, restricting use is what EULAs have traditionally done. This one does something different: it restricts what you can do with the output of the software after the software is closed and put away. If you make a document using iBooks Author, you aren’t allowed to sell that document except through Apple, ever, for the rest of your life.

Interestingly, as the author of the document and presumed signatory to the iBooks Author EULA, you’re the only person to whom that restriction applies. If you gave your iBook to a friend, Apple would have no control over what your friend did with it. And you could sell your friend’s iBooks too, because you aren’t the one who used iBooks Author to generate them.

Yeah, but that only applies to .ibooks files. You can also export .pdf and .txt and those are unrestricted.
Not true. The license defines “Work” as “any book or other work you generate using this software.” That definitely includes PDF and plain text, and it could be construed to include the very words you type in. So if you use iBooks Author to write your novel, you might be legally barred from ever selling that novel in any format, not just as an iBook. UPDATE (3 Feb 2012): Apple has clarified the license to indicate that only the .ibooks format is covered.

Wait, so Apple’s taking my copyrights away?
No no no, just your right to sell the output of iBooks Author on your own or through any other store.

But why would you want to sell iBooks anywhere but in the iBookstore?
It doesn’t matter why, since I made the iBook myself and should be free to do as I please with it. But if you must have a reason, here are five: because Apple’s cut is too high; because I already have an arrangement with another publisher or online store; because I want to sell my work in a country the iBookstore doesn’t serve; because the iBookstore doesn’t let me offer academic pricing, bulk rates, or loyalty discounts; because I tried selling through Apple and they refused.

iBooks Author is free, so Apple deserves a cut.
How on earth does that follow? Xcode is free, and software companies have been using it and the tools that preceded it for decades to build Mac software that they’ve distributed without Apple’s help, and without paying Apple for the privilege. We buy hardware from Apple, and Apple provides the tools to enable us to make that hardware more useful so that more people will buy it. The same virtuous circle could exist for the iPad and iBooks if Apple hadn’t overreached with this ridiculous license.

That’s what the EULA says, so quit whining!
Do you really want EULAs to be able to say anything they please? Do you want copyright holders to have unlimited control over what you can do with legally obtained copies of their work? It’s not even clear that EULAs can be enforced at all. So even if you’re on Apple’s side in this argument, wouldn’t you rather they based their money grab on a sound legal theory?

It’s the same having to sell iOS apps through the App Store.
No, it’s not. The license terms for Xcode (PDF link) don’t contain any language restricting the use of files generated by Xcode. And when you join the iOS Developer Program, there’s a separate contract you’re required to consciously agree to, once a year and each time it’s updated, before you can download your development certificate. But if you don’t join the program, nothing stops you from continuing to use Xcode’s output however you like.

Like I said: unprecedented.

But It’s Free

Watts Martin:

So Apple’s “audacity” is that they’ve created a snazzy creation tool that, from all appearances, only works with their viewers. Wineman is correct in that it’s the license, not the technology, that prevents you from taking a .ibooks file and selling it somewhere other than Apple’s store. But you don’t have much reason to sell something this thing creates outside Apple’s store, ’cause it ain’t gonna be creating those snazzy multimedia books for your Kindle Fire.

You wouldn’t be selling iBooks for Kindle Fire, you’d be selling them for iBooks on the iPad, which last I checked wasn’t just a vending machine for Apple content. And there are plenty of reasons to want to do so, chief among them being that 30% is a lot. If I’m capable of doing all the marketing and payment processing and hosting of my .ibooks documents, why shouldn’t I get to keep all the profits?

Before anyone else points out that Apple deserves its cut because iBooks Author is free, remember that this argument applies equally well to app distribution outside of the App Stores. (At least on the Mac, where that’s still a viable way of doing business.) No one contends that Apple should get a cut of non-App Store app sales simply because Xcode is free.

There’s nothing wrong with selling tools that help people make money. I’m sure there’d be a market for a non-free iBooks Author, just as there is for Aperture, Final Cut, Logic Pro, and the rest of Apple’s professional content-creation tools. But giving the tools away for free and then using semi-hidden legal terms to wedge yourself into an exclusive middleman position? That’s shameful.

The Unprecedented Audacity of the iBooks Author EULA

Apple just released iBooks Author, a free Mac app for creating digital books for the new version of iBooks. I haven’t played with it much, but so far it looks like a very good tool. However, a curious thing happens when you go to export your work in iBooks format:

This restriction — that iBooks can be sold only in the iBookstore — isn’t enforced on a technical level. You can save the document, move it to your iPad in any of the usual ways (including just emailing it to yourself), and it happily opens in the iBooks app.

But if you look at the end-user license agreement (EULA) for iBooks Author, accessible via the app’s About box, the following bold note appears at the top:

IMPORTANT NOTE:
If you charge a fee for any book or other work you generate using this software (a “Work”), 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.

And in section 2:

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.

In other words: Apple is trying to establish a rule that whatever I create with this application, if I sell it, I have to give them a cut. And iBooks Author is free, so this arrangement sounds pretty reasonable.

Here’s the problem: I didn’t agree to it. Apple wants me to believe I did, of course, just by using the software:

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING THE APPLE SOFTWARE. BY USING THE APPLE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL AND/OR USE THE SOFTWARE.

But that language is in the EULA itself, a contract of adhesion which I was not required to sign (or even indicate my agreement to by clicking) before installing the software. So, to paraphrase: By using this software, you agree that anything you make with it is in part ours. But if it can say that and have legal force, can’t it say anything? Isn’t this the equivalent of a car dealer trying to bind you to additional terms by sticking a contract in the glove compartment? By driving this car, you agree to get all your oil changes from Honda of Cupertino?

Apple, in this EULA, is claiming a right not just to its software, but to its software’s output. It’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. As far as I know, in the consumer software industry, this practice is unprecedented. I’m sure it’s commonplace with enterprise software, but the difference is that those contracts are negotiated by corporate legal departments and signed the old-fashioned way, with pen and ink and penalties and termination clauses. A by-using-you-agree-to license that oh by the way asserts rights over a file format? Unheard of, in my experience.

When I make something myself, no matter what software I use to make it, then — assuming it doesn’t infringe any copyrights — it’s my right to distribute it however I want, in whatever format I choose, for free or not. I don’t lose the right to publish my novel if Microsoft determines that I wrote it using a pirated copy of Word. Would I lose that right if I tried to sell my iBook outside of the iBookstore and Apple got wind of it? I don’t know; we’re in uncharted waters here. Or how about this: for a moment I’ll stipulate that Apple’s EULA is valid and I’ve agreed to it implicitly by using the software. Now suppose I create an iBook and give it to someone else who has never downloaded iBooks Author and is not party to the EULA, and that person sells it on their own website. What happens now?

In ensuring that the App Store remains the only legitimate market for iOS apps, Apple doesn’t claim any legal rights to the content I create using its Xcode toolset. Instead, they enforce technical restrictions; apps must be cryptographically signed by Apple in order to run on unaltered iOS devices. Is this a good situation? For Apple and for novice users, maybe, but for developers it sucks and causes massive headaches. But in a way it’s better than a world in which software can assert whatever rights it wants over your stuff just by hiding a few paragraphs in its glove compartment.

UPDATE: I’ve addressed some common misconceptions. Please read this before commenting.