Apple: Digital Feudalists

A few days ago, when Apple announced its new and ostensibly revolutionary iBooks publishing software, it claimed to be on the verge of revolutionizing the publication and distribution of textbooks. After looking over the EULA that comes with the software, methinks NOT.

Check this out:

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.

Consider this in a similar light: if you're a public speaker, charging an appearance fee and using a PowerPoint slide show in your presentation. By the clauses outlined above, you would have to give Microsoft a piece of your action.

Lest the above clauses seem too vague, the Apple EULA goes even further:

Apple will not be responsible for any costs, expenses, damages, losses (including
without limitation lost business opportunities or lost profits) or other liabilities you mayincur 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.

(Their bold-face, not mine.)

Read that paragraph slowly and carefully. Suppose that you spend the next several months writing and formatting your work into a specimen of shocking and brilliant prose. Then you submit it, only to find that for whatever reason, Apple rejects it. What rights is Apple claiming? Here it gets interesting. You can submit the work elsewhere, but not in the form in which it currently resides. First you must strip the document of all its markup language, reducing it to plain text, and then mark it up in another language such as the industry standard EPUB. The agreement states that Apple iBooks uses the EPUB format, but won't allow a 100% compatible export, even using the Save As (.iBooks, then rename the result to .EPUB). Depending upon the interpretation of the agreement, however, even this output might be deemed covered by the egregious clauses.

When we first heard of this new software, my co-author Peter Brawley and I greeted it with enthusiasm. Second and third readings of the EULA have pretty much dissipated our initial take. At this point, our advice to would-be iBooks authors is simple: read and re-read the EULA carefully, and when you are sufficiently dizzied by its language, have your lawyer read it too. And if you still want to walk into this feudal arrangement, we wish you the best of luck.

Arthur