iBook Author EULA, "Work" defined in Berne Convention means Apple also owns CONTENT

katewes

macrumors 6502
Original poster
Jun 7, 2007
420
91
I have a background in IP law - but I'm hampered in this discussion on Apple's iBook Author EULA since I can't get my hands on the EULA as I'm staying with Snow Leopard (the author software only works on Lion).

Merely from what I've read, the iBook Author EULA defines:

Section 2 B (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.

taken from http://venomousporridge.com/post/16126436616/ibooks-author-eula-audacity

From reader comments on various blogs, there is a widespread assumption that Apple only claims rights to the iBook formatted file, and NOT to the actual content.

e.g. if you write a 10,000 word book, and use Apple's iBook Author software to create a file with cool interactivity, the question is: can I later take those 10,000 words and publish them elsewhere without Apple's interactivity-features?

Arnold Kim's article, from MacRumors, indicates: yes you can.
http://www.macrumors.com/2012/01/19/a-closer-look-at-ibooks-author-textbooks-and-exclusivity/

I'm not so sure, but because I haven't seen the EULA, I merely pose the question.

Just because the software enables you to export to PDF, does not automatically mean you're free to sell that PDF outside of the AppleStore.

Article 2(1) of the Berne Convention states: The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

i.e. in the copyright sphere, the phrase "artistic work" covers everything -- the content, independent of its mode or form.

So in Apple's EULA, when they use the same word "Work", there's a prior assumption that the EULA also covers content-independent-of-format.

Now, there could be a definition in Apple's EULA that voids that assumption -- but unless I see such a waiver, my gut feel is that Apple's iBook EULA does indeed cover everything of the content, not just the iBook format.

So, if that's true, then in the above example, you cannot simply use iBook Author to transfer the text to PDF and sell the PDF elsewhere. If the EULA covers the "work" -- and that word is defined the same as it is in normal copyright law -- then you cannot sell that PDF elsewhere.

Can anyone with a legal background - who has read Apple's iBook EULA - comment on the above?
 

wonderspark

macrumors 68040
Feb 4, 2010
3,021
95
Oregon
I have Snow Leopard, and installed iBooks Author anyway. ;)

Here's the English section of the EULA (in two parts because it's longer than 20,000 characters):
ENGLISH
APPLE INC. SOFTWARE LICENSE AGREEMENT FOR iBOOKS AUTHOR
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE APPLE SOFTWARE. BY USING THE APPLE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL AND/OR USE THE SOFTWARE.
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.
1. General.
A. The Apple software, content, documentation and any fonts included in the software (collectively the "Apple Software") are licensed, not sold, to you by Apple Inc. ("Apple") for use only under the terms of this License. Apple and/or Apple's licensors retain ownership of the Apple Software itself and reserve all rights not expressly granted to you.
B. Apple, at its discretion, may make available future upgrades or updates to the Apple Software for your Apple-branded computer. Apple may provide you any such upgrades and updates that it may release up to, but not including, the next major release of the Apple Software, for free. For example, if you originally purchased a license for version 1.0 of the Apple Software, Apple may provide you for free any software upgrades or updates it
might release (e.g., version 1.1 or 1.2) up to, but not including, version 2.0 of the Apple Software. After the next major release of the Apple Software, Apple may also at its discretion continue to provide minor updates and enhancements to the Apple Software. Upgrades and updates, if any, may not necessarily include all existing software features or new features that Apple releases for newer models of Apple-branded computers and may, at Apple’s discretion, be provided with or without charge. The terms of this License will govern any software upgrades or updates provided by Apple that replace and/or supplement the original Apple Software product, unless such upgrade or update is accompanied by a separate license in which case the terms of that license will govern.
2. Permitted License Uses and Restrictions.
A. License. Subject to the terms and conditions of this License, you are granted a limited non-transferable license to install and use the Apple Software only on Apple-branded computers that you own or control in accordance with the Mac App Store Product Usage Rules located at: http://www.apple.com/legal/itunes/ww/ (“Mac Usage Rules”). Except as provided in the Mac Usage Rules, you may not distribute or make the Apple Software available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, transfer, redistribute or sublicense the Apple Software.
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.
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(continued on next post)
 

wonderspark

macrumors 68040
Feb 4, 2010
3,021
95
Oregon
(continued)
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EA0824 11/14/11
 

katewes

macrumors 6502
Original poster
Jun 7, 2007
420
91
On a quick glance, here are some issues that need wider discussion:

The only definition of "Work" I found, using a quick word search was:

"any book or other work you generate using this software (a “Work”)"

This shows that "Work" covers any book or other work. It covers anything generated by the software. So if you generate a PDF, arguably, that generated-PDF falls within the restrictions placed on Works that are generated by the software.

The fact that there's an alternative -- book or other work -- may mean that Apple is not just talking about the iBook digital file. Apple may be talking about the copyright concept of an "artistic work" as defined in the Berne Convention.

I wonder: if you write a 10,000 word book, the Berne Convention regards that content as "the work". Not the paperbook, not the PDF file. The content is "the work". Now if I generate a iBook file using the software, does "the work" become subject to Apple's EULA?

I'm not saying, but it is not clear.

Here's another area of concern in the EULA:

"D. Copyright and Content. ... Title and intellectual property rights in and to any content displayed by or accessed through the Apple Software belongs to the respective content owner. ... Except as otherwise provided in this License, this License does not ... guarantee that such content will continue to be available to you."

What does it mean that, in respect of my IP rights, there is no guarantee that my content will continue to be available to me?

For example, if I own a piece of gold, and Tim Cook takes it away from me and puts it in his bank vault, I might still technically have the title ownership to that piece of gold, but if I had agreed to allow Tim Cook to lock that gold away in his vault, then that piece of gold is no longer available to me, even though I still technically own it.

A proper review of the EULA would take a few hours, and I've only skimmed it for a few minutes but, in my view, there's more to this than meets the eye.
 

SoulBlythe

macrumors newbie
Jan 22, 2012
1
0
(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.
I'm not a lawyer but I'm interested in using the iBooks Author software to create books, at some point this argument is going to apply to me.

I'm a huge Apple fan, but that doesn't mean I accept anything and everything just because it's from 1 Infinite Loop.

I think we can go two ways here.

a) I have created the work, a term they wanted to use, it's not a coincidence, before the work is commercially distributed, I have to sign a separate contract with Apple, so that it can be distributed through Apple's store.

I don't mind signing that agreement, I was planning to sign that agreement already. If the idea is that Apple takes 30% of the sales price of the book, I don't mind that either. You can't get 70% of the sales price of a book in traditional publishing. This is a good deal. For that 30% they take care of hosting the file, distributing the file, collecting payment. That's a lot of heavy lifting I don't have to worry about. Take that 30% already.

However, if it now means that I have to sign with Apple before any commercial distribution of the work, even if it means a modified version of the product, because I'm not going to be able to do that fancy schmancy jiggery pokery that iBooks Author allows for, then they claim exclusivity. I'm not sure about whether or not that means that they can sue me for selling the content of the work, sans fancy schmancy jiggery poker, to another publisher.

It becomes a lot more poignant when b) comes into play: they don't want it, for whatever reason. But, I've signed the contract. Does that mean they get to tell me that, nope I can't sell it to anyone else, even if they don't want it? Because if that is the case, they're now not only denying me a distribution channel, which I have to accept because it's their distribution channel, now they're just stealing my lunch outright. That I very much have a problem with.

My first line of defense would be to create the text in a different application. It existed prior to the copy in iBooks Author. The HTML/JavaScript content I couldn't use in printed form anyway. That would only apply if I took it to a web-based environment.

I don't mind signing a deal with Apple and I wasn't thinking about any third-party distribution anyway, but this does give pause as to what it is they're claiming the rights to.

And why is it that the distributor somehow gets to have the rights to the work when we signed a deal that they could take 30% of the sales price of the book? How does that actually happen? I understand that the music industry was very smart in stealing the rights of young artists with a bad grasp of legal concepts, desperate to sign any kind of record deal, and that for some reason this is now the norm. But that's not how I see it. The publisher should be justly compensated for their effort in the distribution, I don't have an issue with that at all. I do have an issue with them assuming that now my work is theirs just because I used their channel to distribute the work. When did that happen?

Just trying to make sense of it all.

Thank you for this discussion and posting the EULA. I do read EULAs from time to time, but not always, because I'm using lots of software, I need to get a life sometime.:confused: