Monday, January 23, 2012

How I Learned to Stop Worrying and Love the iBooks Author EULA

I've been debating whether to post about the iBooks Author EULA or not. In general, I've been trying to avoid hotly debated and controversial subjects here for the simple fact that those discussions tend to eat up a lot of time and often aren't very productive. My opinion on iBooks Author and iBooks 2 is fairly close to some other authors I know. Because this is something that's near and dear to my heart, however, I figure it's worth a few words. And with me, a few words is usually more than a few.

There's been a lot of foofooraw since the iBooks 2 announcement last week. There's been all sorts of stories, tweets, and blog posts about how Apple is going to "steal your work" if you use iBooks Author. There's also been the all-too-familiar refrains of just how evil Apple is. It all seems vaguely familiar. Almost like… almost like we've been here before, what with all the people gnashing their teeth, rending their clothes, and complaining to the heavens about how evil Apple is because of the developer agreement app store guidelines iBooks 2 EULA.

There's also been a lot of complaints about the fact that Apple is using a proprietary format rather than using and extending ePub 3.

None of this bothers me terribly. Oh, it's not that there aren't things I would want different if I were King of the World, but the reality is that deciding whether to use iBooks Author is just another business decision for me. Emotional outcries and hyperbole are all well and good, but they don't change the parameters of the decision. Business decisions inherently involve risk, and the risk here is at a level that I'm perfectly comfortable with.

Before I explain why, though, I want to put up front that I'm not a lawyer. Well, that's not technically true, but I'm not a practicing lawyer and I'm not YOUR lawyer, so don't take anything I say as legal advice. I'm just explaining why I'm not concerned. If you have concerns, you should take those concerns to your lawyer before making up your mind.


Make no mistake, the iBooks 2 EULA is poorly written and vague. The mere fact that people are up in arms is testament to that fact. And if the ambiguity that is there bothers you, don't use it. There are plenty of tools for creating eBooks, so if you think the risk of Apple "stealing" your work is too high, using another tool solves the problem.

There are several reasons why I'm perfectly comfortable with  the risk involved. In no particular order, those reasons are:
  • It's simply not in Apple's long-term interest to take ownership of authors' books and Apple can almost always be relied upon to do what's in their own long-term best interest. Getting 30% of every iBook sale means they are motivated to keep authors happy. More than that, though, they need authors to want to write for this new platform in order to establish it as the dominant interactive next-generation eBook platform. Stealing books won't get them to that goal. Suing authors who publish non-interactive versions of their content for other platforms like the Kindle or ePub won't either.
  • Although the wording is certainly vague enough that you could argue more than one interpretation, the capitalization of "Work" in the EULA (meaning it has a specific contractual meaning) combined with the verbiage, "Work you create with this software" implies that the intent is to restrict only the application-specific output. In other words, the most likely intent as I read it is to cover the proprietary file format used for the new features not supported by other existing eBook platforms.
  • Even if that weren't the intent, from a purely evidentiary point of view, the other file formats that iBooks Author exports to are open, standard formats and it would be difficult for Apple to prove a particular non-interactive work was "generated" with iBooks Author even if they really did want to try and "steal our books". A PDF generated from iBooks Author would be nearly impossible to distinguish from one generated using Pages by simply copying and pasting the content from iBooks Author .
  • The EULA contains the following phrase: Title and intellectual property rights in and to any content displayed by or accessed through the Apple Software belongs to the respective content owner. Basically, it explicitly states that the ownership of any content you create outside of the app and import into it is completely unaffected by any "book stealing" clause, even if such a thing existed. This seems to counter the notion that Apple is trying steal our intellectual property in the first place because unless the words and images were created directly in iBooks (as opposed to being imported from Pages, Word, Photoshop, etc.), Apple would have no claim to the content anyway. Their claim would be limited to the way the content is formatted. Again, from an evidentiary standpoint, it would be incredibly hard for Apple to prove you created the content in iBooks.
  • The deal we're getting with iBooks Author isn't all that different from the deal we get when using Xcode as iOS developers, and the language of the agreements aren't all that different from each other either, and that's worked out pretty well so far.
  • And last, but not least, the kicker: Let's say, for giggles, that "book stealing" was Apple's intent, and such an intent was found to be both legal and the actual intent of the contract, and Apple decided to exercise those rights to steal my books. You know what? Even with all that, it's still a hell of a lot better deal than I've ever gotten from a traditional publisher. Apple is offering 70% of the sale price to me. The most favorable contract I've ever gotten from a publisher starts at 12% of the net price the publisher gets from the distributor, wholesaler, or retailer (which is half or less of the retail price). That percentage does slowly escalate up to 20% if I sell a ton of books, but if I publish a new edition of an existing book, the escalators go back down to 12% and I have to start all over. To put this in more concrete terms, if I were to sell a book in the iBooks Store for $9.99, I would get $6.99 per book sold, which is about four times what I get when one of my current $39.99 books sells, and I'd get that money months sooner. Oh, and guess what? I don't own those books published through a traditional publisher, either. My publisher can even have someone else update the book and can continue to use my name to promote it, even if I don't like the revisions or think the update sucks.
You can go on about what Apple "might do" or "could do", but the fact is that contracts aren't magic. If Apple wanted to screw me, there's no doubt they could, with or without this language. They've got a disproportionate amount of power in this contractual relationship because they have the audience and the platform, and they also have a ton of money and lots of really, really good lawyers. If they came after me, the merits of the case would matter little because I couldn't afford to defend myself against them, anyway. That's a risk, sure, but based on my past dealings with Apple, them trying to use the legal system to screw me seems a very remote possibility, and I'm willing to accept that risk. The language of the contract does almost nothing to change the amount of risk here for me. It's little more than a red herring as far as I'm concerned.

ePub 3 vs. iBooks 2

Many people have suggested that Apple should have used the existing ePub 3 standard and worked with the standards body to extend it in whatever ways Apple needed it extended. Instead, they decided to create a proprietary file format using the older ePub 2 specification as a starting point. It is important to note, however, that Apple is not advertising this new format as being ePub; we only know it's based on ePub 2 because people have reverse engineered the generated .ibooks files.

Now, I'll be honest. In a perfect world, I'd prefer to see Apple using an open standard here. But, there isn't an existing open standard that does what Apple wanted to do, and working with a standards body to revise existing standards to meet their needs for a yet-to-be-released piece of software would have tipped their hand about the software they were developing. People would have known exactly what Apple was working on from the things they were requesting of the standards body, which would have given competitors an advantage and could have hurt Apple's negotiations with publishers. Apple's culture is steeped in secrecy, and many would argue that this secrecy has been a contributing factor to their repeated successes over the last decade. Anybody who follows the company and understands the way they work knows exactly why they made the choice that they did here. Was it the best choice for Apple? Only time will tell, but there are obvious reasons why they would think it might be.

It's also important to note that iBooks Author is completely and totally free. But really, nothing is free. TANSTAAFL. Developing both a platform to do what iBooks 2 can do and developing a tool to create content for that platform was not a trivial task and Apple almost certainly devoted a lot of resources to getting it done and to getting existing publishers on board. Apple doesn't write software to be nice, they write software to make money. In this case, they're not making money directly, but make no mistake, it was written to make Apple money. The fact that they are not letting people use this free product to compete with them, or to create works for competing platforms should surprise no one. We, as users, authors, and publishers might desire such a tool and might have all sorts of reasons why such a tool would be an awesome thing for us. But so what? I'd like a pink unicorn that farts money. That doesn't mean I should expect somebody else to find one and give it to me for free.

Embrace, Extend, Extinguish

Lastly, several people on Twitter have pointed out that Apple's move here seems frighteningly similar to what Microsoft did throughout the nineties with their infamous "embrace, extend, extinguish" campaign. There's definitely some uncomfortable similarities, but I'm not quite ready to put this in the same camp… yet.

First, iBooks is not the dominant eBook platform, so any suggestion of a monopoly would be silly. Amazon sells far more Kindle books than Apple sells iBooks, and there are other eBook platforms, including Barnes & Noble's Nook, Kobo, and Sony's eReader to name just a few of many. The very idea of embrace, extend, extinguish requires monopoly-like control of a market to be effective, which Apple doesn't remotely have here (yet). There's also been no evidence (yet) of an attempt to "extinguish" the open ePub standard, or to brand the proprietary extended version as the standard. iBooks still supports ePub, and until Apple moves to change that, we're missing the most important and deadly of the three Es, without which there's really no harm, no foul.

The Bottom Line

To quote the narrator in Peter Pan, "all of this has happened before, and it will all happen again." Many developers railed against the "unfair" restrictions of the iOS developer agreement, the inability to sell apps outside the App Store, and the review process. I'm sure there will be similar teeth-gnashing the next time Apple creates a new market or platform, or revises any of the agreements related to any of the existing ones.

And certainly, there have been bumps in the road, some of which are still around. But overall, iOS has proved to be a great platform for developers to be on. The number of iOS devices in the world now numbers in the hundreds of millions, and many of the owners of those devices have shown a willingness to pay for content, including apps, movies, and books. It's not the gold rush the mass media thought it was four years ago, but it has been fertile grounds providing a great many people with a living, including me.

It's not a perfect place, but personally, there's no other place I'd rather be. The fact that I can now do both of the things I do professionally (write apps and write books) on those same fertile grounds, excites me. The fact that I can do things while writing my books that simply weren't possible before excites me even more.

Absolutely, things could change in the future, but I'll worry about the future in the future if I need to. For now, I'm happy here and thrilled about the possibilities that iBooks 2 and iBooks Author represent.

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