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Apple has had a change of heart from its “we own your iBook content henceforth and forever and you’re going to like it” policy. Shortly after Apple published its iBooks Author EULA, a legion of technical journalists and copyright analysts digitally chastised the software giant as evil for locking authors into an agreement that would restrict them to selling content created with iBooks Author in Apple’s iBookstore.

The Case of the Evil EULA

Apple has updated the much-maligned EULA of its iBooks Author app on iTunes. The original agreement stated,

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: 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.

This section was preceded by bold text -- in case there was any confusion on Apple’s intent -- that stated,

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.

If you thought authors could wiggle out of this agreement by using some narrow definition of work, Apple ensures that avenue is closed. The "Important Note" above the agreement states,

any book or other work you generate using this software (a 'Work')."

If you don’t have the highest acumen for legal speak, this licensing agreement requires authors to distribute their book through Apple if they create the content in iBook and charge. In a worst-case scenario, an author could create a work in iBooks Author, which Apple rejects. According to the agreement, the author can’t legally sell the book anywhere. Ever. Apple’s EULA grants Apple the rights to the output of its software. No consumer software maker has ever taken such a stance. Imagine if Adobe claimed every retouched celebrity and model snapshot as its own.

The New iBooks Author EULA, Now With Less Evil

This was clearly not a tiny detail being blown out of proportion by contract and consumer rights zealots. This was, well, evil. Not even the marketing cognoscenti in Cupertino could make this lawyering look favorable in any way to anyone but Apple. Silently admitting defeat, Apple has updated iBooks Author to version 1.0.1 with a single change, an updated EULA.

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The newer, less evil agreements states,

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.

The new agreement specifies that Apple is only claiming revenue generated by content in the iBooks format; authors retain the rights to the actual content of their work. Apple is restricting the iBooks format to the iBookstore. Apple’s move is definitely an effort to get more authors creating iBooks; few people were lining up to participate in the first agreement.

Although many are nodding in approval of Apple’s new, gentler stance, Apple is still taking ownership of the output of its software. It’s as if Microsoft claimed ownership of any content saved in the .docx format. Yes, it’s significantly less restrictive than the original license, but it’s far from optimal because every work sold requires 30% profit sharing with Apple. I’m certain some authors would prefer a freemium model that grants full rights to their content in any output format for an application purchase fee.

Further, Apple’s extension of the International Digital Publishing Forum’s (IDPF) ePub standard created a proprietary format that makes it more time-consuming for authors to create content for multiple devices. Apple could have easily provided an option for authors to create content without iBooks-specific features and allowed support to ePub format. Currently, iBooks Author only supports export to PDF and text.

If will be interesting to see whether the vocal opposition to the EULA dies down before people notice Apple’s embrace and switch sleight of hand with ePub3.