Open Textbook Startup Sued For Allegedly Copying 'Distinctive Selection, Arrangement, and Presentation' Of Facts From Existing Titles
from the bear-facts dept
The Boycott Elsevier movement discussed here on Techdirt several times was born of a frustration at the high prices of academic journals. But another area arguably afflicted even more is that of textbooks for higher education:
According to The College Board, the average college student spends over $1,000 per year on textbooks. At community colleges, the cost of textbooks alone can often exceed 50% of a student’s overall educational expenses.
Just as with the publishing of academic papers, that translates into very fat profit margins:
Is it any wonder that 7 in 10 college students have skipped buying a required text due to price concerns? The textbook publishing market is an oligopoly, with over 80% of the textbook market controlled by the top 4 publishers: Pearson, Cengage, Wiley and McGraw-Hill.
Those figures are found in a blog post from a startup called Boundless that is "committed to bringing educational content into the 21st century," by offering free texts for core higher education subjects that are designed to replace expensive traditional titles.
That hasn't gone down too well with three of the leading publishers of textbooks -- Pearson, Cengage Learning, and Macmillan Higher Education -- which have just sued Boundless:
These publishers have been able to maintain nearly 65% gross margins on what is essentially a commodity product. They have continued to raise prices for this stagnant product in the face of innovation in every other information related industry, growing at a rate of 3 times inflation.Defendant is in the business of distributing online textbooks that it claims serve as "substitutes" for Plaintiffs' textbooks. Rather than produce its own textbooks, however, Defendant steals the creative expression of others, willfully and blatantly violating Plaintiffs' intellectual property rights in several of their highest profile, signature textbooks. Defendant exploits and profits from Plaintiffs’ successful textbooks by making and distributing the free "Boundless Version" of those books, in the hope that it can later monetize the user base that it draws to its Boundless Web Site.
The nature of what Boundless is alleged to have "stolen" is rather unusual:
Notwithstanding whatever use it claims to make of "open source educational content," Defendant distributes "replacement textbooks" that are created from, based upon, and overwhelmingly similar to Plaintiffs’ textbooks. Defendant generates these "replacement textbooks" by hiring individuals to copy and paraphrase from Plaintiffs’ textbooks. Defendant boasts that they copy the precise selection, structure, organization and depth of coverage of Plaintiffs' textbooks and then map-in substitute text, right down to duplicating Plaintiffs’ pagination. Defendant has taken hundreds of topics, sub-topics, and sub-sub-topics that comprise Plaintiffs' textbooks and copied them into the Boundless texts, even presenting them in the same order, and keying their placement to Plaintiffs’ actual pagination. Defendant has engaged in similar copying or paraphrasing with respect to the substance of hundreds of photographs, illustration, captions, and other original aspects of Plaintiffs’ textbooks.
So the accusation seems to be that Boundless books are functional "clones" of existing textbooks, with the same overall organization and pagination, but with different words filling out the topics, sub-topics and sub-sub-topics. The question then becomes whether there is copyright in that arrangement.
The plaintiffs are also concerned about what they term "photographic paraphrasing":
An example of the obvious nature of Defendant’s photographic paraphrasing can be found in Chapter 8 of the authentic version of Campbell’s Biology where Plaintiff Pearson and its authors describe the First and Second Laws of Thermodynamics. To exemplify those laws, Plaintiff Pearson and its authors included two photographs, one of a bear catching and eating a fish, and another of a bear running. Plaintiff Pearson and its authors could have used any one of a universe of possible photographic subjects to demonstrate the laws of thermodynamics, but, based on the manner in which they wished to express their aesthetic and scholarly judgments, they opted for the bear engaged in these activities. In Chapter 8 of the Boundless Version of Cambell’s Biology, Defendant also discusses the first and second laws of thermodynamics. Defendant also includes two photographs to exemplify these laws, but instead of basing its selection and ordering on their own aesthetic and scholarly judgments, the two photographs Defendant includes are also of a bear eating a fish and a bear running, reflecting only the previously made creative, scholarly and aesthetic judgments of the authors and editors of Campbell’s Biology.
Is the use of a bear eating a fish a creative choice? Or is the creativity only in how the bear and the fish are depicted? In many ways, this is the same question put to a UK judge recently concerning a photo with a red double-decker bus crossing a bridge in London. In that case, rather surprisingly, the judge found that you could copyright the basic idea of a photograph.
In response to the publishers' lawsuit, Boundless says:
We’re currently preparing our full response, and we believe that the allegations in this lawsuit are without merit and we will defend our company and mission vigorously.
So it sounds as if we may get a chance to see where a US judge stands on that key issue of the idea/expression dichotomy in the case of academic textbooks and pictures of bears. This could be interesting.
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Filed Under: academics, education, textbooks
Companies: boundless, cengage, elsevier, macmillan, mcgraw-hill, pearson, wiley
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*sighs*
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What I really hate about the publisher's is that over time the textbooks have gotten WORSE. For example, I had my father's book on feedback control systems that was used in that course 20 yrs ago. Heavy math courses don't change much. That book was unanamously agreed by my study group to be far superior to the current text. The order of topics flowed and was structured correctly. It didn't introduce a step and say, just do this for know we'll learn why later. It was also incredably more descriptive and just all around very useful unlike the required book for the course. How do you not improve previous work, but make things WORSE? Oh yeah... the good books are out of print, and there isn't any incentive to keep down the used book market by having new editions, if there are not any errors in the text to fix....Talked about messed up...
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I've done that before and my teacher said it was OK. In fact, I still have the book and somewhere it says that this book is not to be sold inside the U.S. and it's illegal for it to be sold to the U.S.
I looked up the U.S. version and it costs considerably more and, IIRC, the foreign version had everything the U.S. version had and some additional text even (IIRC, I think someone else in the class got the U.S. version so I can make the comparison).
It's a travesty that our laws are so one sided that U.S. citizens are deliberately charged more because the legal system not only destroys competition but it also allows price gouging.
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Everything the major publishers have issue with Boundless are actions that the author's they publish do as well. Boundless has plenty of evidence (apparently Boundless already has everything with notes anyways) that this is accepted common practice among publishers.
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'Lawsuits arrrrrr Us' was sued today...
The suing suers at Law Suits Corporation pursued the suits as suited them, through the sewers and pursuant to the suits that ensued. The activity suited them well.
One of the suits at Law Suits Corporation had the this to say:
"Remember when someone in the U.S. actually made something instead of just gumming the shedded dead skin of snake (the serpents, not the lawyers) balls?".
And then the whole hirsute bunch in hair suits all went for lunch.
Except, nobody made food any more.
Not even a Sioux Indian ex-Sous Chef.
And the swallows had eaten all the suet.
We were soooooo disappointed.
And we all died of starvation.
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Re: 'Lawsuits arrrrrr Us' was sued today...
Hey! I represent Car Talk, and I'm here to tell you that you will be shortly receiving notice of our lawsuit for copyright infringement.
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The bad guys will probably win
West sued someone who tried to use parallel structure, and won. Here's a good write up: http://www.wired.com/wired/archive/2.05/the.law_pr.html
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My reaction to the article is that even if the accusations against Boundless are true, what they did isn't much different than what the big four textbook companies have been doing to each other for years, especially in the core courses. When reviewing textbooks for 100 level courses it isn't uncommon to find essentially the same diagrams and figures in different texts.
>>"I knew several students that would buy english version of textbooks that are sold outside of the US, because they were so much cheaper for the exact same book."
This is a common situation. One thing that textbook publishers do to thwart the used book market (a racket in itself) is to thrash books with multiple editions. The big four typically produce new editions every year, often with laughably small changes. One book I was using went through and changed the data in all of the end-of-chapter assignments and made a few typo changes; that was it. These tactics are intended to force students to buy new instead of used books, but what really happens is that in a single class you will have students working out of multiple editions and various international, abridged, comprehensive, illustrated, and annotated copies of the books. You can no longer say "Turn to page 83" or "Do exercises 5 through 20 on page 153" because you are typically dealing with students who have several different versions of the text.
An even bigger problem is that a lot of students can't even afford to buy books in any edition. In some courses that severely limits the progress they can make in the class.
Boundless and similar efforts like http://openstaxcollege.org/ are attractive to me because they let me make sure that all of my students have textbooks and that they are using the same edition.
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Perhaps this could be used in Bounless' defence.
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Financial Aide and Books
I don't want the old publishers to control textbooks and I dont' want Apple to either.
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After that, if a book was used for a single assignment, I would just ask a classmate if I could photocopy that page (fair use for educational purposes, you know). And for the books we never used, I saved a bundle. It got to the point where I wouldn't even buy a book until I actually had an assignment from it and another seemed imminent.
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I think the books are more important with earlier materials in learning basic concepts. Later on the teachers hardly go by the book and most everything is by lecture notes and whatever the teacher says. This makes sense, once you know the basic concepts and overcome the initial high learning curve then building on those basic concepts becomes much easier and requires less explanation since you already know how to speak and understand the language of the relevant field. The most difficult stuff comes first, the easier stuff that builds on the more difficult stuff come later.
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For once, they may be right
However, as much as it pains me, the old publishers may actually have a case here. If the example given in the article is a representative of all of their work, Boundless is shamelessly copying their work.
There are many ways to explain the same concept. Just this semester I was a TA for one course and had a chance to compare two textbooks covering the exact same subject from Pearson and McGraw Hill. They both had pros and cons, but there was zero overlap. If Boundless really wants to produce free textbooks, why not copy from Wikipedia instead? Or ask around. I am sure that there are many professors and graduate students willing to contribute a small part for free. Or just change some of the more obvious things. They really couldn't find two pictures of a different animal?
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Re: For once, they may be right
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Well known practice in software
What Pearson, Cengage Learning, and Macmillan Higher Education are doing is also a well known practice. It's called anticompetitive trolling. Or alternatively "abuse of process".
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I'm afraid that, despite their noble intentions, Defendant has screwed the pooch.
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Ok Im confused
I thought the purpose of higher education was to educate, to pass on knowledge. It seems that that knowledge is now owned by someone. If you are paying the University then why pay for the books other than the fact that they are made of paper and that requires a cost. What about digital books?
Is the factual information in Wikipedia copyrighted ? This is just getting more and more bizarre.
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Re: Ok Im confused
They aren't claiming copyright on the facts in the book, but on the arrangement of the text and appearance of the pages.
This is about the same as the "look & feel" copyright lawsuits in the '80s and '90s software industry.
There appears to be no question that the Boundless books copied the look & feel of the commercial books. The question is if that's a copyright issue. Personally, I think it's a misapplication of copyright. If I remember the software cases right, the courts never clearly settled one way or another. Some cases succeeded, others failed.
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Re: Ok Im confused
1. Give you a taste of the "real world", or at least a world where you get casually screwed over on a frequent basis.
2. If you're very very lucky, you might learn a bit about HOW to think (critical thinking, etc), but don't hold your breath.
3. Get a piece of paper that proves you can follow a complicated series of directions for an extended period of time, and are willing to participate in herd mentality for an undefined reward.
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Well
I'd say reasonable would be around 5-10% max, decreasing by 1% per year if there isn't at least 50% new content.
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“FRAND” + Monopoly = Nonsense
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