When Apple unveiled plans last week to ramp up its efforts in the education space, the company’s announcement was met with decidedly mixed reactions. While many welcomed Apple’s foray into digital textbook publishing, others were less enthusiastic. The idea of delivering textbooks via tablets may have promise in theory, but Apple’s initial execution doesn’t look all that disruptive yet.
The latter part of the announcement covered the impressive expansion of iTunes U and the launch of iBooks Author, a DIY tool for publishing digital textbooks. If anything could pose a threat to the status quo in the textbook industry, it would be such an application. But wait. As it turned out, the so-called “Garage Band for e-books” wouldn’t be quite as open and revolutionary as some thought.
That’s because the end-user license agreement (EULA) governing how its end products could be distributed turned out to be especially restrictive, a fact bemoaned by our own Marshall Kirkpatrick. Even stalwart Apple supporter John Gruber chimed in to call the iBooks Author EULA “Apple at its worst.”
So what’s the big deal? The agreement contains a provision stating that “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 then proceeds to outline further limitations on the paid distribution of one’s e-books. So much for iBooks Author being a groundbreaking, industry-shaking move.
As troubling as the iBooks Author EULA looks, it’s questionable whether or not the agreement can be legally enforced under current copyright law, explains Philadelphia-based lawyer Max Kennerly on his blog.
The issue, says Kennerly, comes down to the difference between exclusive and non-exclusive licenses. Apple seeks to establish an exclusive license with users, in which, by legal definition, “the copyright holder permits the licensee to use the protected material for a specific use and further promises that the same permission will not be given to others. The licensee violates the copyright by exceeding the scope of this license.”
A provision in the Copyright Act requiring a written “transfer of copyright ownership” may serve as an unintended legal loophole for those seeking to go around Apple’s restrictions and selling their e-books.
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.
Of course, this is just one legal expert’s interpretation of the legal niceties, based in part on somewhat obscure concepts and court-established precedents. Still, on paper it would appear that the legal enforceability of the iBooks Author EULA isn’t entirely clear, and this may leave the door open to authors brave and curious enough to find out.