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Jan
19th
2012
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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.

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