The road to serfdom: Use Apple software

Apple LogoAbout two weeks ago, with the usual great fanfare pioneered by the late Steve Jobs, Apple unveiled its Ibook 2 e-book software. The software has great promise, according to Apple, allowing the user to create the kind of e-book that authors have been waiting for, adding graphics, video, photo galleries, even 3-D.

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The euphoria was short lived.  A tech blogger named Dave Wineman did what many people don’t do, read Apple’s End User Licence Agreement (EULA) and the alarm bells rang (if alarm bells can ring on Twitter). (I saw a tweet about Wineman’s initial post, retweeted it and posted it on Facebook)

Use Apple ibook software and create a work, and ask for money, and they own it and they own you.

For the past two weeks, the debate has raged, largely within the tech community and that’s the problem. While a couple of the tech writers may have written a tech book, it is absolutely clear that most of the people debating Apple’s move know absolutely nothing about the long struggle by creators to have some form of control over their work, to maintain the integrity of their work and not to get screwed.

The Apple ibook EULA is the road to serfdom for writers and if it succeeds, it is another blow against creative writing around the world.

After the initial post, more tech writers and bloggers took an even closer look at Apple’s EULA and it got worse.  Unlike conventional paper publishing, if Apple rejects and refuses to distribute the work, you can’t sell it elsewhere.

Here are the key clauses in the Apple Ibook 2 EULA.

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.

Then Apple adds

Apple will not be responsible for any costs, expenses, damages, losses (including
without limitation lost business opportunities or lost profits) or other liabilities you may incur as a result of your use of this Apple Software, including without limitation the fact that your Work may not be selected for distribution by Apple.

It quickly became apparent that Apple’s restriction also meant the author couldn’t sell the book (“the work”) as a printed book, without Apple’s permission and Apple presumably taking a cut.

Use Apple software and you become a serf, a serf to Apple, obliged, like the medieval peasant, to sell your product to your overlord, in this case, Apple.

Those blogs in the tech community that raised the alarm said that this could set an incredibly dangerous precedent, that a software company can use the licencing agreement to restrict or control what is created by that software or, like that medieval baron, take a cut of your production.

The Ed Bott report on ZDNet calls Apple’s latest attempt at controlling content  Apple’s mind-bogglingly greedy and evil license agreement

Bott asks:

Imagine if Microsoft said you had to pay them 30% of your speaking fees if you used a PowerPoint deck in a speech.

Bott also says that Apple software is an enhancement of the open source EPUB format.

 An Apple support document notes that “¦iBooks uses the ePub file format” and later refers to it as “the industry-leading ePub digital book file type.” But iBooks Author will not export its output to that industry-leading format.

Sascha Sagan is even more scathing with post on PCMag.com iBooks Author: You Work For Apple Now

With iBooks Author, Apple just made a hideous play to kill authors’ rights over their work…  it affects every single person who wants to use Apple’s new tool to get their word out. Like iBooks Author? Apple now owns you…

I’m feeling a personal terror here because I make my living as a writer. I’m writing this column now in Apple’s TextEdit. If Apple took the same approach to TextEdit as it does to iBooks, I wouldn’t be able to put my columns in PCMag’s Digital Edition (sold through Zinio). Apple would control how PCMag does its business.

My wife is an artist; she creates some of her work on a Mac. Could Apple then forbid her from selling it on Etsy or through an art gallery with a little-noticed clause in a licensing agreement? That’s what iBook Author heralds.

Up until now, Apple has kept creative tools divorced from the means of distribution… Apple has always made a distinction between enabling the creative process and selling the product of that process.

Apple’s iBooks Author erases that distinction. Apple owns the creative process of anyone who uses the tool.

One tech writer who comes to Apple’s defence is Paul Carr in his Pando Daily blog, seems to have a “get over it” attitude by saying Apple Restricting Sales Of Ebooks? Uh, Yeah, That’s What Apple Does by saying that the free Ibook 2 software is designed to attract a critical mass of new content into their iBooks store,” then Carr predicts “the company will probably relax their EULA restrictions, like they did with DRM in the iTunes store.”

Carr (and others) point out that there is a lot of e-book software out there and authors are “more than welcome to boycott Apple’s awesome new free software” but he adds: “But we won’t. We’ll pick Apple, and we’ll like it. Because this is Apple, and that’s what we do.”

Wineman has already responded to that in a follow up blog and says

If you don’t like it, don’t use it! Duh.
You’re missing the point. The issue is that this is a software EULA which for the first time attempts to restrict what I can do with the output of the app, rather than with the app itself. No consumer EULA I’ve ever seen goes this far. Would you be happy if Garage Band required you to sell your music through the iTunes Store, or if iPhoto had license terms that kept you from posting your own photos online? It’s a step backward for computing freedom and we should resist it.

One author, Holly Isle, has already started a protest by pulling her books from the Ibook store. In her blog The Apple iBooks Author Issue: Small things, and large principles

And the rule of software is this: Software does not get to dictate the use of output. Period. Software does not get to tell you WHERE you can sell what you’ve created, only that you have the right to sell it (in the cases where software requires a commercial license if you are producing for profit).

Software does not get to tell you, “If you create this work on our software and we don’t want to distribute it, we own the rights to the version our software created, and if you want another version, you will have to disassemble this one, and rebuild it from scratch on other software.”

A few days later, came the backlash from the Apple tech community. In the Apple blog Loop Insight, Jim Dalrymple asked what the fuss was about.

The fact is, none of it is true. I’m not sure if they just misunderstood or they jumped on a juicy headline, but here’s what the EULA is all about, as I understand it.

Apple is providing free tools for authors to create books. If you want to give away your book for free, you can do that. For example, if a teacher makes an iBook for students, they can give it to them at no cost and Apple doesn’t care.
If, however, you create an iBook using Apple’s tools and you want to sell it, then you have to use the iBookstore and give Apple its cut.
That sounds fair to me. Use Apple’s tools, sell your product, and give Apple the money it deserves for providing you with a way to make and sell a product.

He concluded with a complete and utter display of ignorance by saying:

The hubbub over the EULA seems like a whole lot of nothing to me, perpetuated by people that didn’t understand what they were reading.

That of course lead to a lively exchange in the comments section.

Actually it’s Dalrymple who doesn’t understand what he is talking about. Apple’s demand is unfair, unfairness that authors have been fighting for a century or more and, were, for a while, winning. Now the threat is back.

George Santayana famously said: “Those who cannot remember the past are condemned to repeat it.”

The problem with the tech writing/blogging world is that many believe in a continual reinvention of time, not exactly Groundhog Day but more like a Star Trek type temporal loop where everything begins again and again and again, but slightly different each time.

The techies, believing each new day is a new universe, don’t remember the past, and therefore are doomed to repeat the mistakes of the past.

First, let’s take the argument that because a good portion of the population likes Apple products, authors will willingly give up their creative rights to this super-controlling mega-corporation. A mega-corporation that we now know from The New York Times produces those products in horrendous conditions in dark satanic mills in China.

NHLPA LogoI don’t want to use a stereotype but I have to wonder how many geek writers know anything about the history of professional sports. With Apple and the creative community, we’re getting into a similar situation that happened for generations in professional sports. Let’s take the oldest professional leagues: baseball and hockey. Young athletes wanted to play in the “major leagues.” The young athletes started in the minors, and to get into the minors they signed contracts that essentially made them into serfs, owned by the team and team owners. Even when they reached the major leagues, the original six in the NHL, for example, and became stars, they were still serfs. Many NHL stars (and some baseball stars) had to take off season jobs to make ends meet. They finally got so fed up they formed unions.

Now those players with the support of their unions get multimillion dollar contracts from the team owners. While a few say the athletes are overpaid, it’s a lot better situation than being underpaid serfs, owned by the team owners.

Authors have always been at odds with publishers over rights, over payments, over how a book is designed, published and sold. That will never change (unless publishers disappear altogether, which is possible).

For authors, unions are not a solution, especially in the United States, when court decisions in the 1930s, when creators were fighting the movie studios, ruled that to be unionized, creators must be employees. Laws in other countries are not as restrictive, but then Apple is in California, where those precedents were set.

The problem, ignored by the tech community, is how just how bad things are in publishing today, compared to say 25 and 60 years ago; how conditions for many authors have gotten worse through the years, problems that have little to do with the technical revolution of the past two decades.

An 1827 print of an author in a garrett, Death found an author writing his life, Designed & done on stone by E. Hull. via Wikipedia

For most of the nineteenth century and the first six decades of the twentieth century, there were hundreds of publishers, some small and some large, general and specialized, competing to sell books to the public and therefore competing for authors.

An author still had to have a good manuscript to sell to a publisher. If the publisher liked the manuscript, then the author had to make sure that the publishers’ boiler plate contract didn’t take that author to the cleaners. The publishers’ contract always tried to control as much of the rights as possible, and keep as much money from the author and in the publisher’s pocket as possible. There were always the young and naive authors, like eager jocks with an offer from the major leagues, willing to sell themselves to a serf contract just to be published. Hard lessons brought the rise of the literary agent as well as countless articles advising authors how to avoid being ripped off. It was all part of the game, tough contract negotiations are an accepted part of the free enterprise system.

Things began to change about a quarter century ago with the rise of the chain bookstore. The main problem for authors was that publishers no longer sold books to the public. They sold books to the chain bookstores. The chain bookstores tracked sales and decided, often on the performance of one single title, whether or not an author’s next book should be picked up. If a chain indicated that it wouldn’t pick up an author, that publisher wouldn’t look at that author. (Imagine that in sports, a pitcher has one bad inning, a goalie lets in a few too many balls or pucks  in one game, a quarterback has a bad day and throws interceptions and that’s it for their career)

Then came the corporate consolidation, hundreds of publishers shrank to a handful, all owned by large transnational media corporations. While the famous names of publishing houses remained, they were usually shells, each one a branch of one of the mega-corporations. That reduced the choice authors and their agents had in submitting manuscripts.

The combination of corporate consolidation and the chain bookstore raised the always difficult barrier to entry for new authors to almost insurmountable heights. In the long past, a publisher would take a risk on a new author as a long term investment, counting on the fact that a few of those authors would break through and repay that initial investment thousands of times over. And oh yes, those publishing houses were in business, so even the thousand of so copies printed of that new author’s book were designed so there was an easy break-even point.

All of that is long gone. No wonder kids want to get published for free these days, often it is the only choice they have.

The demands of the corporate bean counters at both the publishing house and the chain bookstore also meant the death of the “mid-list” book, the book from an experienced author which would usually makes the publishing house a small but healthy profit. The trouble was both the publishers and chain bookstores no longer wanted healthy profits, they only wanted hugely profitable mega best sellers.

With the rise of new technology, authors were faced with new problems. As first music and later video downloading hurt the bottom lines of the big media corporations, there was increased pressure for even more profitable best sellers from the hard copy product, books. More authors were dropped. Publishers put minimal efforts into books, especially minimal copy-editing and, of course, the public blamed the author, not the publisher, for all those typos.

By mid-decade after the millennium, new technology had begun to hit the book business. Independent bookstores were almost all gone. Now the chain bookstores and their overwhelming power is going. Publishers are left wondering what to do. Almost everyone now working in publishing have spent their entire careers in the business model of selling to the chains, not the public, They don’t know what to do as they face this brave new world and thus they go out of business.

By this time, most authors no longer care much about publishers. If publishers hadn’t been screwing all but their biggest best selling authors for more than a quarter of a century, the publishers might have had allies. They don’t.

Amazon brought the promise of e-books. E-books would liberate the author from the publishers. If publishers no longer did good overall editing, no longer did copy editing, no longer helped clear picture rights, no longer did even minimal publicity, and advances were dropping, why did an author need a publisher? Why not invest in the book yourself, pay for a copy editor, do the publicity, which the publisher left up to you anyway, take the complete risk in the marketplace and, if successful, reap all the profits (even when Amazon took its cut)?

I Books logo

 

It appears that the promise of e-books is not as great as authors hoped. The spectre of corporate control is once again haunting world of creative writing.

The tech writing community is failing to learn from history, long years of history. I wonder how many of the tech writers who ask what the fuss is about on the Apple EULA have ever read a boiler plate contract from a book publisher that comes close to asking for your first born?

It’s not just the EULA for the iBook software, that EULA is a precedent that leads to a road to author serfdom.

If Apple, which has the most attractive platform at the moment for selling e-books, gets away with that clause in the End User Licence Agreement, the idea will spread. Right now it applies to “free” software. How long before it applies to software you pay for, buried in a corporate EULA?

Right now Apple and Amazon take a cut of the book price. How long before they start demanding, just to get on the platform, as publishers used to do, a percentage of other rights?

The choice could soon be, work for free using free software (and somehow pay the rent, mortgage and grocery bills, an increasing problem anyway for creators that those well-paid tech writers always seem to say doesn’t matter ) or, if Apple succeeds, get your work on a platform that has the potential buyers, but at a likely increasing cost as years go by in terms of both income and rights.

That’s no different than the naive author who signed publishers’ boiler plate (or even worse work for hire) and then got nothing when the book became a hit movie.

That’s no different than a medieval serf forced to sell all their produce to their liege lord.

That’s no different than the farm kid who signed a serf contract so he could play in the NHL or the major baseball leagues.

That’s no different from the merchants in a neighbourhood paying a “percentage” to the local crime boss for “protection.”

The worst case scenario, and one probably no science fiction writer ever imagined, an author who creates a book has to pay a percentage to the software company and another percentage to every electronic platform, not only for book sales, but for every other rights sale.

It hasn’t happened yet, but history has shown time and time again that this is the kind of rights grab that corporations try for.

Tech writers and  tech bloggers get real. Learn from history, before you’re screwed as well.

That’s what the fuss is about.

(Disclosure I have an iMac and iPad, also three PCs and an Android phone).