Are the Terms of Apple’s New iBook Author Program Anti-Competitive?

Apple’s terms and conditions for using its new iBooks author program have now been revealed and Dan Wineman of Venemous Porridge has picked it apart to find a few clauses that could give rise to concern for authors.  The new programme is intended to do for self-publishing what the iTunes store did for podcasts, and open up new opportunities for everybody.

As an author who self-published my first book through Lulu I find this very interesting as it’s fantastic when a new publishing medium comes along to encourage budding authors everywhere.

However Wineman’s close inspection of the terms shows that Apple might have their own ideas on what is considered literary genius and how you might want to use their service.  Of particular interest is this paragraph…

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.

Which means that despite how great people might think your works are, they could be simply rejected by Apple for their own commercial reasons.  Now obviously this clause is intended to weed out offensive or illegal material, however it doesn’t say that.  What it does say is that Apple will decide whether your work is suitable for them.  The fact that they say that they cannot be held responsible for any costs, ie your time and hard work, incurred in writing a book using their tools is another kick.

It’s in the distribution section though that my friend and colleague Ed Bott, a veteran author, has taken special note of one particular clause.

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.

This is the lock-in, the clause that states if you choose to use the iBook store to distribute your work you cannot sell it anywhere else.  Personally, as an author, I wouldn’t want to sign a lock in with any one provider, especially an untested one no matter how successful the Apple stores are at the moment.  When people want to buy books I’d want to be on Amazon and this is clearly where Apple are aiming their guns.

Now if you’re about to submit an angry comment about how anti-Apple I am, hold fire!  I think that Apple’s decision to help and encourage authors is a very welcome one.  Don’t forget I’m an author myself and have self-published a book.  This isn’t an easy process and anything that Apple can do to make the process easier will be very welcome.

Nobody ever reads terms and conditions though and these clauses could be considered both unfair and anti-competitive.  I would imagine that Apple will probably have to back down and it won’t be the first time that a company’s legal department got over-enthusiastic and misunderstood the market a product was aimed at.  I’m not going to say this was deliberate because any executive with a modicum of common sense would know it would never be allowed.

The fact remains that it is currently there and it’s not gone yet.  We will have to wait and see what, if anything, Apple say about this.  But if you want to also sell your works on Amazon, and don’t want to seek Apple’s “separate written agreement”, then you might want to steer clear for now.