Some flurry is going on about a new cost-free piece of Apple software, iBooks Author. This software allows a user to create an ebook – nothing particularly remarkable there. What is remarkable is some terms from the End User License Agreement which binds use of the software.
The particularly contentious verbiage surrounds Apple’s assertion that in the instances where you sell the result of what you do with iBooks Author, you grant Apple exclusive publishing rights. That is to say that you may not use iBooks Author to create a “work” as the EULA terms it, and sell that work through a publisher other than Apple.
The particularly obnoxious wording is;
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.
What Apple is doing has not been done before. Microsoft does not assert publishing rights to the documents you write in Word, nor does Adobe say that they want their cut of any movies you edit with Premiere. The world should be in uproar about this, but they are not, and I think I know why.
Canvassing for why people are not stunned at Apple’s greedy grab for the publishing rights to its users’ creative works, I’ve had the following excuses;
- iBooks Author is free
- If you don’t like the EULA, use another product – you’re not obligated to use iBooks Author
- Apple isn’t asserting rights to the meaningful creative content you write, only the file/layout/particular edition of the creative content that is the specific “thing” that iBooks Author spits out
None of these wash. I’m going to address 2 and 3. 1 doesn’t deserve the dignity of a response beyond pointing out that offering a product free of charge doesn’t obviate the responsibility for the product to adhere to a standard of ethics.
If you don’t like it, use something else
That’s great for those who don’t like it, for those who read what they are being legally bound to when they choose to use the software, but that’s currently me, you and a handful of other bloggers. Due to the troika that nobody reads EULAs, Apple has a near monopoly market position in casual creative software and iBooks Author is free of barriers to its use or reasons to carefully consider using it (because it’s free), thousands or even millions of people will use the software and Apple will consider they have accepted the terms of the EULA, including conferring sole publishing rights to Apple.
In short, people who don’t like it will use something else, but almost nobody will make an informed decision about whether or not they like it. They will simply use it because it’s there, familiar and free.
Apple’s assertion over publishing rights is not your book, it’s the edition or format or layout or something
Apple asserts their rights over (and I quote) any book or other work you generate using this software (a “Work”). This wording is similar to the way copyright law and intellectual agreements are frequently worded, and it has nothing to do with layout, format or software.
The “work” you create is a book. It doesn’t matter whether that book is created in ipub format or is a PDF, or if it’s in two column or indeed written right-to-left, you have created a book and that is what Apple has the publishing rights to. The Hobbit is a book and for the purposes of this EULA, a “work” – hard versus soft cover, movie poster front cover, foreword by Tolkein’s grandson etc. is all noise.
I’ve heard arguments that if you were to take the raw text of your book and run it through another ebook publishing tool, the resultant file would be free of Apple’s EULA. Until a copyright lawyer corrects me, I can’t see how this reading is correct. If it were, I would be able to re-record Eminem’s Relapse album at a different studio with myself rapping – taking the same artistic content and running it through a different technical process – and own copyright over the resultant LP. This is not the case. I couldn’t shoot Star Wars with different actors and locations either. The “work” in copyright law is simply not diversified by processes and technical tools and what piece of software was used.
I hope nobody uses iBooks Author. I’m of course however a realist and know that many people will. I look forward with some trepidation to what the outcome of that will be in courts, and I look forward to reading the EULAs in the next version of Garage Band, iMovie and indeed OSX itself.
Well you could take something by Eminem and re-record it, but that would be plagiarising as opposed to producing a VERSION of something you wrote elsewhere using iBooks.
A better way to apply your analogy would be for the CD Mastering company which created a version of the digital recording to make it suitable for pressing as a CD claiming that, once those Masters were created by them, they owned the copyright in all subsequent recordings of the content of that album.
Which would be bullshit of course.