Or the notice that has been posted above that is in the product’s description.

I think arguments trying to deny seeing information that is freely available before time of purchase are flimsy at best. It’s there, it is up to you, the purchaser, to read them before buying. You can take a horse to water, etc..

Also note that EULAs are dreadfully and painfully long. When iTunes on my iPad tells me that the new terms & conditions for the store are 17 pages long, I know that there is something desperately wrong with the whole software industry. Who actually reads that stuff?

If you read the iTunes EULA, you are told that you cannot use it to design a nuclear weapons.
http://gizmodo.com/5204274/you-may-not- ... al-weapons
Idiotic, or what?

Oh, now they tell us - that's me back to the drawing board, then.

I've read the EULA for iTunes,OS X and the App Store.

Boring as hell, but I can say that I've read them and I'm not concerned about anything in them - I.e. I agree with them.

No, it must be displayed to the user before the purchase. If they do no force the user to read it (providing a link, which the user doesn't have to click on isn't enought), then they cannot be held to any conditions not in the equivalent of the Sale of Goods Act.


The German courts don't think so. The onus is on the seller, to ensure that the purchaser has read and agreed to all terms and conditions, before purchase.

This is why courts have gone against "Abzocker" websites (scam sites), which had their T&Cs, that the "free download" was actually an agreement to take out a 50€ a month subscription for 2 years, further down the page (the user had to page down, past the "Agree & Download" button, and the text was in 6pt text in blue text on a blue background) was not valid, because, although displayed to the user on the page, a) the user was unlikely to scroll down the page and b) they couldn't read 6pt blue text, 2 shades deeper than the background.

That is somewhat ridiculous...I understand why they've done it, but it's somewhat unworkable.
Take the fact that you can buy an app without going to it's 'homepage', if Apple did show you the T&Cs on the homepage, you could argue that Apple never showed you them because you didn't visit said homepage...

You sign up for an overall set of T&Cs when you create an Apple ID account to use the App Store. You sign up for the specific iBooks Author T&Cs when you install the software. The former cover the act of downloading, the latter the act of using.



You're saying Apple not requiring you to read a large legal document before downloading a free piece of software (which you are under no obligation to actually use at any point) is the same as a piece of deliberate obfuscation as an attempt to defraud people out of €1200? I think that might struggle as an argument in any court to be honest with you.

The legal agreements presented to you when downloading iBooks Author are exactly the same as those presented when downloading pretty much any other piece of software from any other web site. i.e. pretty much none. I have seen it done 'properly' occasionally - iirc the last time was when I bought (note the emphasis) VMWare online. With that, you have to agree to an EULA before you can download it. But you don't every time you download a piece of software from MacUpdate or CNET or lots of other places. The act of downloading a piece of software - especially a free one - requires you to do absolutely nothing, at least, not beyond the basic terms of things like the Berne convention which would equally apply when downloading a song or a picture or an ebook from any other source. If the App Store download process is not 'legal' in Germany, then pretty much no other website that sells or gives away software is either.

Is Apple's iBooks Author EULA a viable contract? That's a debatable point (and I personally happen to hope it gets challenged, because I'm not at all sure it is). BUt when downloading any pierce of software from the App Store, you already have been presented with and must have agreed to a set of T&C that apply to that and any other download from the App Store.

I await to see whether this actually gets to court in Germany and that argument gets used.

Jon

How? You’d need to be able to audit that, so the user clicks on a “yes I have” button before downloading and that would be recorded (opening a whole load of privacy questions along the way). Assuming, of course, that the user has indeed read the T&Cs properly, and not just scrolling to the bottom or clicking on the “agree” button. How would you test that the user has really read it? I would argue that if you are going to be that pedantic that you would have to be absolutely 100% certain that the user has indeed read and comprehended the EULA before commencing the purchase.

This brings the size of EULAs into question. They are huge - you have to agree that their length, size, language and even formatting is not conducive to a read, and if you are making a number of purchases, you could waste a day reading umpteen of the things.

I kind of think that, really, if an EULA can’t be sent in a single Tweet, then it’s too long.

If Apple don't explicitly show you any T&Cs before you accept the purchase (or the download with free software, which is installed automatically), then they cannot force any additional T&Cs, other than statutory conditions under the equivalent of the sale of goods act.

It is totally workable, before purchase (or installation, in the case of free software, which Apple does automatically, when you click the purchase/download button on the App Store page), the user has to agree to all T&Cs. They just need to display them, like most apps do, before the installer starts, and ask the user to accept. Nothing more, nothing less.


Why? A contract is a contract and the EULA for iBook Author is just another contract, regardless of whether money has changed hands or not.


The difference here, is that, with the App Store, it automatically starts the installation process, when you click on purchase/download, with the other sites you mention, you download a file and then start the installer, at which point, you are faced with the EULA and you have to accept, before you can proceed with the installation. This is missing from the App Store, it automatically starts the installation, without making the user read any additional terms and conditions, such as only being able to sell any content generated through using the app through the iTunes Store.


Because the law is onerous enough on the seller, the courts/law makers made it easy enough for the seller to fulfill their side of the contract, they must show the EULA before purchase (or installation, in the case of free products) and the user has to signal, that they have read the EULA, usually by clicking a button. The law basically says, if the user clicks on the Accept button, or signs on a dotted line on a paper contract, that they are legally stating, that they have read and understood the terms. The same goes for handing money over, at the counter in a shop, if the EULA is displayed on the outside of the packaging, the law says that the buyer has agreed to the terms, by paying for the goods, if the seller / producer has "hidden" the EULA inside the packaging and shrinkwrapped it, then pech (tough titty) for the producer.

If Apple displayed the EULA when the user clicks on purchase / download and before the transaction begins, and waits for them to accept the terms before completing the purchase / starting the download, then they could enforce them. As they don't display the EULA, they can't enforce any terms therein.

Yes but Dave. The ts and cs do not apply to the use of the software. They apply to the use of the iBook store as a means of making money from the sales of your iBook.

And it is exactly upon trying to use this service that you are shown the ts and cs.


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I am here: http://maps.google.com/maps?ll=54.269575,-1.408895

If you're running the app store app, you've been shown the T&Cs. You agreed to them. Whether you agreed to them again, this particular time, is legally irrelevant.


Yes, and it's a contract you agree to (or not, your choice) when you first run the software. Because that's when you're presented with it. However, comparing being offered a contract at arbitrary point A rather than arbitrary point B, both of which are before the terms of the contract come into force, to an act of just plain old everyday fraud is, well, I leave everyone else to decide what they would describe it as.


Installation is irrelevant. All that's doing is changing one file on your disk into another file on your disk. And, once again, it's something you explicitly agreed to allow when you ran the app store app. You had a choice - don't agree to the T&C, at which point the App Store app quits. The specific contract for publishing ibooks files is presented when you run the program, which is the point at which the terms in it become relevant, and you can choose to agree to it or not. Now you seem to be suggesting that the contract is only valid if it's presented to you at the moment you personally would wish it to be. This, again, is legally irrelevant.

I tell you what Dave, why don't you just not publish anything via the iBooks store. If you can manage that, the terms which they Apple offer to people who do have no relevance to you whatsoever, and they are one less thing in the world you need to worry about.

Jon

Did nobody see my post by the author saying that the Apple T&Cs are not really any different to working for any other publisher?
If you wish to run a vanity press, and print your own material and set about recouping the costs + profit, then you can do that.
Ultimately, as soon as you hand over your work to anyone for publication commercially, it really ceases to be your work.
The Apple T&C is no different to that.
If you wrote a piece of software, and someone like Activision picked it up, do you think it'd be any different?
If I photograph for my employers, then that picture is no longer mine.

This really is a very big storm in a espresso cup.

How is that justified? It's retarded. It's not normal. It's really really petty and stupid and just inefficient. Have the Germans fallen so far that they can't understand one line that says "click here for the conditions"? If people are so stupid, how are they supposed to understand the conditions even if they see them? Why would an illiterate even want this software?

Anyone who is going to read it will read it regardless of whether it's a link or in a tiny box they have to scroll down over 9000 times. Anyone who is not going to read it (probably most) is not going to read it even if it's printed in 18 point Comic Sans and stuck on their face.

Besides, I really don't get what people are bitching about. Having not read it, I totally believe everyone that says it's fine and dandy and hey - free software is usually a lead in to a sale so what do people expect anyway?

The restriction is on iBook Author, if you generate a book in it and want to sell it, you can only sell the output in the iBook store. As this is a restriction of the program, which "I didn't know about, before I started writing my book," this restriction on the output would not be enforceable.

It isn't arbitrary, it has to be shown to the user BEFORE THE PRODUCT IS PURCHASED, OR IN THE CASE OF FREE SOFTWARE, INSTALLED.

Displaying it after the installation, before the first time the user runs the program is legally too late. The laws are clear and simple to follow, Apple don't seem to want to bother, being compliant or they aren't that worried about the extra terms in the EULA being enforced. This has been pointed out several times to Apple over the years, but they don't seem to have been bothered about their EULAs not being enforceable.

As to "an act of just plain old everyday fraud," that is irrelevant. This is the equivalent of the Sale of Goods Act, in Germany. The Sale of Goods Act was set up to kurb dodgy vendors, but it applies to every sale by a business to a consumer in the UK, does that mean that every shop in the UK is a fraudster? No, it is just a law in place to protect the consumer (and the vendor). It is the same here, the law sets a number of rules, which needs to be followed when selling a product or service, one of them is that the consumer has to be informed at the point of sale / transaction of any specific terms and conditions of using the product or service. Any terms & conditions which are shown to the user after they have accepted the product (paid for or installed) cannot be forced on the user.

[/quote]
I didn't see anything in the App Store EULA / T&Cs, that the output of any program downloaded from App Store can only be used to generate content for iBooks... It is these additional terms, which the user is not explicitly shown, before they accept the "purchase" (in this case the installation).


I don't care, one way or another. I think it is wrong, with Apple being on the standards body for EPUB, that they then break the standard they are supposed to be defining. i was just pointing out, that under German law, the EULA is, with all probability, not enforceable, because it is not shown to the user, before they decide to install the product (it hasn't been tested in court, so I can only go by what consumer law and lawyers here in Germany say and how the courts have made decisions on similar cases in the past - IANAL).

This isn't an anti-Apple thing, this is just pointing out that they way the App Store works isn't, theoretically, workable in Germany. It would be the same if Microsoft or any other company tried to do the same thing.