Since Apple's iBooks Author app shipped, there's been a lot of chatter about the infamous EULA which requires sales exclusivity. The number of people defending this has shocked me. To me, it's sort of like discovering that I'm surrounded by people who think pickpocketing is a great pastime, and I just never noticed.

Since it suddenly turns out that a whole lot of people I know have a very different perspective on morality than I assumed, I figured it was worthwhile to lay out my reasoning in detail, rather than squeezing it into 140 character bursts.

The debate has hinged around this notice: "IMPORTANT NOTE: 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." And more specifically, the debate has hinged around the word "generate", and the question of whether that means that this exclusivity only applies to the output files, or whether it applies to the general content of the book.

I think that's rather off track. That's just a note clarifying the terms of the EULA. The actual term which covers this reads:

"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."

(The full EULA is posted online at http://forums.macrumors.com/showthread.php?t=1311769 in case, like me, you want to read it without downloading iBooks Author and therefore supposedly agreeing to its EULA.)

At no point is the term "Work" ever defined in this license. Thus we must fall back on the standard definition, which clearly covers content, not just output. If this is not what Apple intended, then it makes no sense that they used the general word "Work" without ever defining it, clarifying it, or limiting the scope of the exclusivity clause.

At worst, Apple is trying to make a subtle land grab here, either by seeing just how far the courts will let them enforce this term, or with simple FUD to create a chilling effect on authors who wouldn't risk a lawsuit. At best, Apple meant well and screwed up the wording. Not really excusable for a gigantic company with hordes of lawyers on staff. If that is the case, then no doubt they will clarify it at some point. But until then, we must deal with what they say, not with what we imagine they intended.

Laying claim to another person's creative output without being extremely clear about it up-front is reprehensible. Maybe Apple never will take advantage of this, but until and unless they change the EULA to be more specific about what it covers, they are laying such a claim.

Some people have taken their defense of Apple further. They accept this interpretation but still defend it, saying that it's Apple's software, it's free, and if you don't like the terms then you don't have to use the software.

I have a serious problem with this approach. First, the EULA is dictated under severely unfair terms. Apple has a whole team of expensive lawyers to draft and enforce it. Appropriating one's creative output simply because they used your free software to create it is unconscionable. A person should not have their work locked in to Apple due to a decision to use free software. The magnitude of the shackles being placed upon the user does not match the magnitude of the decision to use the software. It's deeply unexpected.

Second, nobody reads EULAs. You know this, I know this, everybody knows this, and most importantly, Apple knows this. People are going to be using iBooks Author with no idea that Apple is appropriating their work. To place such a clause into an EULA with the knowledge that most users will not be aware of it is, quite simply, evil.

In conclusion, Apple's EULA language is deeply wrong and should be resisted. If you defend it and don't see how it's immoral, than I'm afraid that we can no longer be friends, and I'm going to have to wonder just how carefully I should watch my wallet when you're nearby.