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Gary Richmond [opinions]

Apple's iBook EULA exemplifies Everything that's wrong with Proprietary Software [apple] [eula] [microsoft] [apps] [copyright] [foss] [ibook]

Lovers and users of free and open source software are a hardy bunch. They've seen it all: Microsoft EULAs, DRM, UEFI, proprietary software and constant attempts to prevent end users jailbreaking and rooting the devices they paid for with hard-earned cash. If you think you've seen and heard it all, well, you haven't. Apple may have trumped them all with a possibly unique EULA.

EULAs (End Users License Agreement) are commonplace where proprietary operating systems and software are concerned and the simple way to avoid them is to use GNU/Linux instead. If you use Windows or Apple products you know what to expect. Restrictions. But even by the standard of those companies their users must have had a nasty shock when they discovered that Apple had managed to come up with a nice little earner which enforces a EULA possibly never actually seen in the wild before.

EULAs are a legal minefield

I've never heard of any publisher preventing you from touting your masterpeice elsewhere

To be precise, there is an Apple App called iBook, an authoring program to allow writers to publish their genius to the world. It's free but if you try to sell your book then a very nasty EULA pops up. It tells you that you can use iBook to give away the product of your labours but that if you charge for it, then Apple want their cut. Moreover, you have to sell your work through submitting for approval via the Apple App store. That's assuming Apple don't actually decline to distribute you work (at its sole discretion and without giving a reason). Suppose you write a book attacking proprietary licenses and the culture of walled app gardens, what are the chances of Apple distributing it? Of course the history of writing is littered with authors buried under a mound of rejections by publishers but I've never heard of any publisher preventing you from toutiing your masterpeice elsewhere. Did that take your breath away? It should. It's worth investigating a little further.

Before you stopped using Windows you'll have been familiar not only with the dreaded Blue Screen of Death but with the EULA. You couldn't miss it. Or avoid it. At least you can't say that you didn't see it. Apple's version isn't so transparent. In fact, it has been described as a "contract of adhesion" which is broadly defined as a contract where one party, and one party alone, sets the terms and conditions and the second party to the contract is left with little or no choice to accept or reject it. And you thought that contracts were negotiated. Think again.

Are you liable for the contractual omissions of third parties? I think I'd have to pass that one over to the gowned vultures of the legal fraternity

This all sounds like pretty most all EULAs you've ever seen but you'd be pretty shocked if, having accepted the Windows EULA for Microsft Office, the masterpiece you crafted in Word could only be sold through Microsoft and only when they got a cut of the proceeds. Well, actually, Microsoft's EULA for the Home and Student Edition 2010 does prevent you from using it for commercial purposes--but at least it says so up front, not after you've toiled for months writing a book and used iBook and it restricts the use of the software itself, not the output file. Further, suppose that you decide to give the work away free to others via a separate outlet but that they then re-distribute it and charge for it. Are you liable for the contractual omissions of third parties? I think I'd have to pass that one over to the gowned vultures of the legal fraternity.

It's all about restricted templates

So, what exactly is Apple restricting? Copyright? I'll come back to that shortly but it seems to me that Apple is restricting the use of the book templates in iBook. In other words, you write you book in another software tool, load it into iBook, do any formating you want, export it and this produces an output file and it seems to be at this point that the EULA applies (unless you're giving away the fruits of your labour). Apple wants to own the right to that output, in terms of sole distribution rights and monetizing it too. It can, and has been argued, that Apple is only locking down the output of the file format, not the contents of your writing but it's effectively the same thing. Your writing is locked down by filtering it through Apple's iBook templates output file. The file is the book.

On the level of file formats, Apple's iBook uses a modified version of ePub called ePub3. EPub is an industry standard which uses the free HTML standard and so facilitates open data and open file formats. And while you can bet your bottom dollar that Apple's version is infested with DRM, ePub does not enforce it. It is there as an option, but that's all. Speaking of formats, is there anything to stop an author from creating an iBook and then converting it to another file format and using that as an unrestricted platform to distribute on any device to create a revenue flow? If so, it would also get round the walled garden of Apple's app, it would also make your e-book available on computers as well. Truly cross platform. That's a nice idea except that the iBook app contains proprietary code which would need to be hacked to make it convertible to other e-book platforms and devices.

Things are bad when your EULA's mocked by Microsoft

There is nothing though to stop you, if you so wish, from going down the Apple route and then also taking the plain text of your book and using tools like Calibre to publish it to different formats for different devices, free or paid for and put it up on your own website. That's perfectly legal and Apple can't touch you for it. Copyright, which I mentioned earlier, is not an issue here. Agreeing to the iBook EULA does not infringe on the author's copyright of the book content, only the file output generated by the Ibook app. Besides, it avoids any potential problem of Apple's iBook EULA being deployed as an exclusive license--which requires a written and signed memorandum of transfer of copyright. This is why Apple seem to have recognized that the EULA would be insufficient and therefore have added that authors will be required to enter into a written agreement before a work can be distributed via the App market. And one view seems to be that the Apple EULA is trying to enforce an exclusive license before signing a subsequent, written second agreement. In reality the most Apple can hope for is to enforce the EULA and extract notional damages or a "refund" of the cost of the iBook free sofware. Assuming they are not heading for an anti trust action first. And assuming that they can endure the spectacle of Frank Shaw from Microsoft mocking their EULA on Twitter. Surreal.

Apple is not the only fruit

The iBook EULA exemplifies precisely what is wrong with the walled garden of proprietary apps and why software vendors who are also hardware vendors can gain a double lock over end users but there really is a very, very simple solution. Don't use it. There are alternatives to get your intellectual product out there. FOSS has lot of tools and software to help you. If it's good enough they'll buy it. You don't need Apple. Cut out the middleman.

One book, many bookshops. Print once, sell everywhere. Works for me every time

Otherwise, if you think that Apple's most profitable quarter in history ($13.6 billion on revenue exceeding $46 billion) wasn't profitable enough then you might like to top up their depleted coffers by publishing your book with them and give them a piece of the action. Of course you could always go down the dead tree route. One book, many bookshops. Print once, sell everywhere. Works for me every time.


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