Apple's iBook EULA - is it enforceable?

You're probably aware of the iBook EULA flap (I've written about it here).  To recap, the EULA boils down to

1. Feel free to create anything you want with this tool
2. If you want to give the Fruits Of Your Genius away for free, rock on.  Do it however and wherever you want.
3. If you you want to sell it however,
1. You must sell it through us (Apple)
2. If we don't want to sell it, you are Shit-out-of-Luck.
3. And there isn't a damn thing you can do about it.

The latest twist in this, courtesy Max Kennerly of The Beasley Firm LLC, is that it looks like Apple may have actually overreached in their requests, making the EULA either not enforceable, or worse, enforceable but with minimal to no damages.  As he puts it

...in the end, the iBooks Author EULA leaves both Apple and the author in a strange stand-off: Apple doesn’t actually have the right to tell the author not to take their work somewhere else, but the author can’t do that without breaching the EULA — even though they retain full rights in their copyright.

But Apple has been too clever by half here: if an author does breach the EULA (by not subsequently signing the written agreement after having used the “free” software) and distributes their iBooks-created-work elsewhere, what are Apple’s damages? Because Apple doesn’t have a copyright interest in the book (like an exclusive license), they can’t claim lost royalties as the damage. Instead, they have to claim that an author breached the EULA of a program that users did not have to pay for in money.

 To summarize, Apple doesn't have the right to prevent you from doing whatever you want.  At worst you breach the EULA.  The thing is, by breaching the EULA, you *are* causing damage to Apple, but the damage has nothing to do with the book you wrote (remember, Apple has no copyright claim on your book).  It basically looks like you'll have to refund the cost of the software, which was free!

Interesting times indeed - I'm waiting for the next move here...