Apple to Authors: Content You Make in iBook App is Yours, Not Ours

Apple has amended a controversial clause in the end-user license agreement of its recently introduced iBooks Author e-book creation app. The first version could be read as saying that any e-book created or edited in iBooks Author could only be sold exclusively in Apple's store.

The new EULA of iBooks Author 1.0.1, released Friday, makes it clear that content created inside iBooks Author belongs to authors, and can be sold on any other e-book platform; only files encoded in Apple's proprietary .ibooks format are limited to Apple's iBooks store. iBooks made in iBooks Author can still be distributed for free anywhere.

Here's the text of both versions of the EULA, as spotted by TNW's hawk-eyed Matthew Panzarino:

Here's section 2B of the new EULA (with key new text in italics):

B. Distribution of Works Generated Using the iBooks Author Software. As a condition of this License and provided you are in compliance with its terms,* works generated using iBooks Author* may be distributed as follows:

(i) if the work is provided for free (at no charge), you may distribute it by any means;

(ii) if the work is provided for a fee (including as part of any subscription-based product or service) and includes files in the .ibooks format generated using iBooks Author, the work may only be distributed through Apple, and such distribution will be subject to a separate written agreement with Apple (or an Apple affiliate or subsidiary); provided, however, that this restriction will not apply to the content of the work when distributed in a form that does not include files in the .ibooks format generated using iBooks Author. You retain all your rights in the content of your works, and you may distribute such content by any means when it does not include files in the .ibooks format generated by iBooks Author.

And the same section in the old EULA:

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.

Now, in the new EULA, that last sentence about Apple's discretion to bar books from the iBooks store gets an all-new paragraph, with language that more strongly protects Apple:

Apple will not be responsible for any costs, expenses, damages, losses (including without limitation lost business opportunities or lost profits) or other liabilities you may incur as a result of your use of this Apple Software, including without limitation the fact that your work may not be selected for distribution by Apple.

In short, nearly everywhere the phrase "your Work" appears in the old EULA, it's replaced with the phrase "works generated using iBooks Author"; then it's clarified that what is meant are books in Apple's .ibooks format, or zipped-up versions of the same.

Now, does this address all of the criticisms of Apple's EULA for iBooks Author? Not really. It actually sharpens several of them. Dan Wineman, an iOS/Mac developer, wrote a well-circulated post titled "The Unprecedented Audacity of the iBooks Author EULA" (all italics are same in original):

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.

If anything, the new EULA makes it clear that asserting rights over a file format is exactly what Apple wants to do. It's disclaiming rights to .PDF and .TXT files made and exported in iBooks Author; it's effectively asserting an exclusive right to sale of all .ibooks files.

It also doesn't address an objection many observers have to the idea of the .ibooks file format itself. The format is almost (but not quite) a version of EPUB3, which is intended to be a draft standard for HTML5-based multimedia e-books of the kind Apple is producing. It includes proprietary extensions to both HTML5 and CSS3 unique to Apple that make its files unreadable by any EPUB reader or editor.

In practice, what this means is that you can't really use iBooks Author to edit e-books. It's not just that the EULA restricts (or appeared to restrict) you from reusing and reselling the content in another e-book format; it's actually technically difficult to do so, even editing the code line by line.

Daniel Glazman, co-chair of the W3C CSS working group, outlines Apple's extensions to EPUB3 and explains how they work (or rather, don't). Glazman is not happy:

With iBooks Author, Apple is trying even more to lock their formats and the market. But this is a bad strategy because publishers are fed up with formats. For one book, they have too many formats to export to. For each format, they have to use tools to convert (usually from MS Word) that are incomplete and all require manual reformatting or validation. Adding an extra format that is almost EPUB3 but is definitely not EPUB3 output by a software that is an isolated island and does not offer any extra help to reduce the publishing burden is representing a huge extra investment and is then, in my opinion, a mistake.

Apple has played here the game Microsoft was playing back in 1996/1997. Implementing behind the curtains up to that point, extending standards but not disclosing the extensions, using unstabilized Working Drafts into shipped products, making the shipped solution incompatible with the rest of the market and even incompatible with the other rendering engines of Apple, is a strategic error. It can only lead to a mess reaching the magnitude of the Outlook mess when it switched rendering engines and created a gigantic chaos for corporations sending newsletters that the recipients could not read any more.

EPUB has its limitations as a quasi-standard, but it is (I think) a sincere effort to try to solve these problems of interoperability -- not just for their own sake, but to try to make development easier for publishers and other developers.

In short, Apple's removed the most egregious, conspiracy-minded objection you could make of iBooks Author and its goals. But the new EULA just lays the others bare.

Note: According to the release notes, the updated EULA is the only modification to iBooks Author between versions 1.0.0 and 1.0.1; the software itself remains unchanged.