Apple’s iBooks Author EULA: Actually Evil, or Just Misunderstood?

Last week, in an event specified as education-related, Apple announced new software that enables authors to more easily create and publish media-rich digital content. They’re calling the sales app iBooks 2 and the creation app iBooks Author, but they seem to be making a very marked distinction that what has generally become known as an e-book is not what Apple has in mind when it talks about iBooks.

A lot of authors—especially independent authors—and other people in the publishing industry have been writing about the agreement that comes with the software, and complaining about how restrictive and evil it is. I’ve read the agreement in question, and I think that all the discussion around it is based on simple misunderstanding.

For years, there have basically been two distinct business models related to publishing; the most superficial is the trade publishing business model. This is the one you see, the one with novels and non-fiction books, magazines and story-related tchotchkes. Barnes & Noble is part of the trade publishing business model, as were Borders and B. Dalton and Walden, and as is Walmart and Target and Costco. This is the side of the industry fueled by regular readers reading regular books.

There’s another business model to publishing, though, and that’s related to education. This is the model that produces textbooks and school-related media supplies, and its target market is specific and narrow: students and educators. While you can find some of these books in bookstores, they’re mostly in those at colleges and universities, where the aisles are divided not by genre but rather by discipline, and where the important names on the shelves are not the authors’ but rather your professors’.

Apple opened their event with a video of teachers discussing problems related to education. They talked specifically about textbooks. All the books they showed were textbooks. And they all included videos and widgets by which readers could manipulate 3-D models of molecules. All the publishers they’d partnered with produce books intended for classroom use, by teachers instructing students. The price point they targeted specifically was $14.99—a tad high for a completely text-based digital novel, but remarkably inexpensive next to the Biology textbooks I used to pay $130 for (I double-majored in natural science and English literature—arguably the two most expensive majors in terms of buying books).

Apple is specifically aiming to enter the education-related publishing business model.

This is actually smart on Apple’s part. In fact, it’s rather brilliant. Amazon owns 60-ish% of the trade digital publishing business, and will own more after B&N spins off Nook and then goes the way of Borders (or gets bought, whichever occurs first). And there’s already a Kindle app for the iPad. Argue about open and proprietary formats all you wish, but Amazon has created, with Kindle, the very easiest way to produce digital text (I know. I’ve coded both ePub and Kindle. The latter is just simpler in a lot of ways).

What Amazon has not created is a means to produce pretty much anything else besides digital text. Let’s be honest: even the Kindle Fire is not going to be an ideal way to create an immersive, media-rich document that includes text, images, and videos with which users can interact. Not for a long while yet, and not at that size.

Apple, on the other hand, has. Apple has created a new ecosystem that favors the other side of the publishing industry. Those videos and interactive widgets will be useful for students when they might be merely novel to readers. Apple found a way to take all those things like enhanced e-books and interactive content and other buzzwords and transcend gimmickry to create something actually useful.

If that’s the way this shakes out, with Amazon targeting fiction and trade while Apple focuses on classrooms and education . . . that’s pretty much a great system. Education-related content requires vetting fiction does not—“quality” and “good enough” are subjective, but “correct” is not.

That’s not to say creating something for iBooks 2 is difficult; with iBooks Author, Apple ensured it’s not. iBooks Author is basically something entirely new: a media-processing program that lets you create a document with text, images, videos, and widgets every bit as easily as word-processing programs have let people create text documents. It’s less “desktop publishing” than “tablet publishing,” really, if only because that seems to be what the software was designed to create: documents for tablets. Calling them e-books or enhanced books or even books at all might be misleading at this point, because there will never be a moment in their creation during which creators intend for whatever they’re creating to be printed. You can’t print a video.

iBooks are also not intended for devices other than those running Apple’s iOS, but that may be more about acknowledgement of other platforms’ limitations than Apple’s own restriction. This is where the controversy over the iBooks Author End User License Agreement (which is the contract one agrees to when one uses software. You know that long, legally binding document you mostly skip when installing a new app? That one) comes in, and, arguably, where it shouldn’t.

The controversy comes from some of the wording in the EULA, specifically the following clause:

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.

Now, caveat: I am not a lawyer. I have an MBA, not a JD, which means I know business, and not law. However, I’ve worked with lawyers and have created license agreement, so I have some related experience. I’m not legally advising here. I’m just telling you how I’m reading and understanding this document, because I think it’s important to do so.

The first important distinction to note is the difference between “work” and “‘Work’”; the latter defines what the agreement/contract is referring to. I’m not sure what sort of work besides a book one might generate using the software, but it’s important to note that the distinction seems to read that you may only sell books generated using the software through Apple.

The first objection is typically against exclusivity; many authors and publishing industry folks object that they can’t sell “work [they] generated using the software” anywhere besides iBooks. My question there is: where else would you sell “work generated using the software”? If you used the software for its intended purpose—i.e., to create a media-rich document complete with videos and interactive widgets and such—where else do you think that work is going to function? Do you think the fancy videos added into the document will play on a Kindle screen? It’s likely it won’t even work on a Nook or other Android-based tablet, as I’d wager that whatever file iBooks Author generates, it’s not an industry-standard ePub (which the industry only adopted after Amazon went with Mobipocket, as though the industry were just trying to be deliberately petulant about such things).

Apple is known for creating both software and devices that work exactly as Apple first intended they work, and restricting users from altering that intention much. It’s restrictive, yes, but it also creates an experience uniform across iDevices.

I’ve also seen someone write that this EULA “could be construed to include the very words you type in.” I’m going to disagree there, citing the contract language “you generate using this software,” and specifically that word “generate.” I think if the contract were intended to include “the very words you type in,” the contract would refer to work created in the software, and not generated using it. By using the word “generate,” the contract seems to me to specifically refer to the end-product, not the means of it.

This is still somewhat questionable in terms of licenses, rights, and exclusivity. For example, when you save a document in Microsoft Word, Microsoft doesn’t attempt to control what you then do with the resulting file. Apple’s iBooks Author EULA does exactly that, but I think the distinction there is that millions of computers and devices can read a Word file; only Apple products accessing Apple’s iBookstore can read Apple iBooks Author documents.

Again, yes, it’s restrictive, but again, that may be more a question of other devices limitations than Apple’s restriction. Is there software that allows one to run iBooks 2 on an Android tablet, or in Windows 7?

If there is, I’m not aware of it.

The interesting thing is that Apple is only restrictive if you’re selling the work; if you’re giving it away free in the iBookstore, you may give it away free anywhere else you like (probably limited to your website, because again, I’m just not sure where else you might be able to give it away. Can you upload it to Nook?). This is actually a marked change in the general digital publishing landscape. Amazon lets authors set their titles’ prices to free, but only after authors commit those titles to Amazon exclusivity. In effect, this is the reverse of Apple’s model; they’re asking for exclusivity only if you charge for your titles.

What does all this mean in the real world, in practice and execution?

That remains to be seen. I think there will be some interesting consequences, one of which will be that Amazon comes to own the trade digital publishing market as B&N owned the trade print publishing one, while Apple and the iPad will dominate education-related publishing. People say monopolies are bad for business and competition, but both companies, at this point, seem to be competing only with themselves as they refine both their products and their business models, and both are the best there is at what they do. They’ve both not just revolutionized industries but even rebuilt them from the ground up.

Personally, right now, I’m an Amazon-exclusive author, but that’s mainly because I’ve been producing digital text. I like being exclusive to Amazon—their online shopping and digital reading experiences are unmatched by anyone anywhere. I could easily see that determining exclusivity on a title-by-title basis, though, and if ever I came up with an idea I thought lent itself more to the media-rich format of the iPad (or iPhone) than to the e-ink screen of the Kindle, I’d use iBooks Author without hesitation.

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