iBooks Author end-user license agreement sparks controversy

When we covered everything you need to know about publishing and distribution for Apple’s new iBooks Author platform, we told you that Apple would require books created with the tool to be sold through the iBookstore. Publishers can, however, make books available for free on their websites or elsewhere. Now, Daring Fireball pointed us to a report from Dan Wineman who likens Apple’s end user license agreement for iBooks Author to “Microsoft trying to restrict what people can do with Word documents.” Wineman explained:

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.

Wineman’s real issue is not with the fact that Apple’s restricting developers and the software’s output, but more so that Apple assumes “by using the Apple software, you are agreeing to be bound by the terms of this license.”  Therefore users, according to Apple, are restricted from selling the content you produce anywhere other than through Apple. Wineman continued:

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?… a contract of adhesion which I was not required to sign (or even indicate my agreement to by clicking) before installing the software.

It is important to note that Apple does not appear to be making an attempt, other than with the EULA, to actually prevent users from distributing their work elsewhere. Wineman pointed out documents created with iBooks Author can be saved, emailed, loaded onto an iPad, and opened in iBooks without an issue. It has yet to be seen how strict Apple will be on enforcing the specifics of the EULA preventing publishers from selling their work outside of the iBookstore. Apple’s EULA outlined the company’s policy:

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.

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.