After a week of extreme internet hubbub, MobyLives follows up on Apple’s End-User Licensing Agreement (EULA) controversy.

Chris Foresman reports on Ars Technica that Apple has updated the EULA of its new textbook self-publishing platform, iBooks Author.   MobyLives reported on the furor over the predatory terms here last week.  Foresman clarifies that the EULA restricts only the ‘.ibooks’ format to Apple iBookstore and not the book’s content.

Previously, the EULA said:

“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.”

It now reads:

“If you want to charge a fee for a work that includes files in the .ibooks format generated using iBooks Author, you may only sell or distribute such work through Apple, and such distribution will be subject to a separate agreement with Apple. This restriction does not apply to the content of such works when distributed in a form that does not include files in the .ibooks format.” (italics added)

As I discussed on MobyLives previously, it didn’t appear to me that Apple had gone so far as to directly claim ownership of content. Rather, the wording was an attempt at giving Apple exclusive ‘distributorship’.  Foresman writes that,

“[N]aturally, many authors and would-be publishers were wary that Apple created a legal loophole to control where their content could be sold.  We consulted several lawyers on the issue, who agreed that the wording was vague enough to allow such restriction, and might even be legal according to contract law.”

The updated EULA makes it clear that the agreement limits only the distribution of ebooks saved in the .ibooks format.  The annoyance factor for authors remains, however.  As Foresman goes on to say, “[t]he restriction is somewhat moot…Only iBooks 2.0 on the iPad can even read and display .ibooks files, so there’s little advantage to trying to sell such e-books outside of the iBookstore.”

The controversy over the iBooks Author’s EULA has made one thing clear, if this restrictive trend continues, the field of self-publishing will become ever more complicated for the battling ebook author.  The ease of using these new publishing platforms is rendered moot by the horror of finding your way through the maze of Terms of Use, licensing arcania and digital rights management (DRM) systems.

Big players such as Amazon or Apple, who insist on using their own restrictive formats, dominate the field.  Both appear determined to forgo platforms that work across the board, such as ePub.  It seems that if self-publishing authors want the exposure of an Amazon listing or the iBookstore, they will just have to bear it.

Corey Doctorow wrote in his recent Publishers Weekly column ‘With A Little Help: Digital Lysenkoism’, that “[i]n publishing, there’s the dawning realization that allowing, say, Amazon, to lock up your books with its DRM means that Amazon essentially owns your customers. That is the reality of DRM. This is incredibly bad for publishing’s future.”

Although Doctorow was writing about the DRM major publishers use on their Amazon-sold ebooks, the point remains the same for those that choose to use Amazon or Apple’s self-publishing platforms.  By writing the required economics textbook that every student must own using the iBooks Author platform, for example, the author will be hand-delivering thousands of customers to Apple, customers who cannot move elsewhere to other devices or other bookstores.

Many commentators think that the revolt against the Apple EULA is much ado about nothing.  They suggest that the software’s unique capabilities and the fact that it is free signifies the people should simply quit whining and learn to love their EULA.

In reply, sampling Dan Wineman of Venomous Porridge,

“But why would you want to sell iBooks anywhere but in the iBookstore?  It doesn’t matter why, since I made the iBook myself and should be free to do as I please with it. But if you must have a reason, here are five: because Apple’s cut is too high; because I already have an arrangement with another publisher or online store; because I want to sell my work in a country the iBookstore doesn’t serve; because the iBookstore doesn’t let me offer academic pricing, bulk rates, or loyalty discounts; because I tried selling through Apple and they refused.”

A little tinkering with EULA legalese will not make this issue go away.  As more self-publishing platforms roll out in 2012, it will be interesting to see whether authors keep quiet or start demanding reasonable terms.