iBooks Author and now the lawyers are involved

Last week I wrote of my displeasure with the iBooks Author solution. Partly because it's needlessly cumbersome, partly because the product is, in my view, not ready for prime time -- but mostly for what I considered a very restrictive, anti-Apple-like licensing agreement.

The license was so ill conceived that I asked if it was even legal:

http://brianshall.com/search/node/ibooks%20legal

It may not be. This legal site examines the iBooks Author EULA:

The iBooks Author EULA plainly tries to create an exclusive license: Apple claims, in essence, the copyright holder [that's the author] permits the licensee [that's Apple] to use the protected material for a specific use [the iBooks store] and further promises that the same permission will not be given to others [that's the 'you may only distribute the Work through Apple' part].

Here’s the problem: under the Copyright Act, an exclusive license is defined by 17 U.S.C. § 101 as a “transfer of copyright ownership,” and under 17 U.S.C. § 204 such a transfer “is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed.”

Of course, Apple doesn’t ask anyone to sign anything before using iBooks Author. There’s a lot of debate over whether a “shrink-wrap” or “click-wrap” license is enforceable (here’s an older post of mine, too), with most courts evaluating them on a case-by-case basis, but there’s no doubt that ‘using a program’ isn’t the same thing as ‘signing a written document granting an exclusive license in a copyrighted work.’

Which means that, in the end, the iBooks Author EULA leaves both Apple and the author in a strange stand-off: Apple doesn’t actually have the right to tell the author not to take their work somewhere else, but the author can’t do that without breaching the EULA — even though they retain full rights in their copyright.

There's lots more. It's as exacatly painful as any other legal work you might read. So don't bother.

Conclusion:

Probably you can sell your iBooks Author product elsewehere, assuming you would want to and assuming you could make it work but if you can do both those you probably won't bother so it probably won't matter. And who knows, Apple just might sue you.

As I've said from the beginning, this EULA does *nothing* good for Apple Inc but causes potential ill will. Expect them to revise it.