Open Textbook Startup Sued For Allegedly Copying 'Distinctive Selection, Arrangement, and Presentation' Of Facts From Existing Titles

from the bear-facts dept

Wed, Apr 11th 2012 7:14am — Glyn Moody

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.

Is it any wonder that 7 in 10 college students have skipped buying a required text due to price concerns?

Just as with the publishing of academic papers, that translates into very fat profit margins: 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.

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.
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: 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

32 Comments

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Mega1987 (profile), 11 Apr 2012 @ 7:27am

so... the only thing missing is some publisher sue students for copying the content of their books for a assignment/research...

*sighs*
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Lord Binky, 11 Apr 2012 @ 7:36am

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.

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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Anonymous Coward, 11 Apr 2012 @ 7:41am

Re:
"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."

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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Anonymous Coward, 11 Apr 2012 @ 7:43am

Re:
(and, btw, I generally agree with you about book quality too. In many instances it's gotten worse).
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A Boy Called Sue, 11 Apr 2012 @ 7:50am

'Lawsuits arrrrrr Us' was sued today...
for infringing on lawsuit patents that the Law Suits Corporation (a subsidiary of Dewey Cheetum and Howe) held in their sweaty little hands after their seizure of the "assets" of The Law Suits Lawyers Corporation (Suite 500, 500 Soo Street, Suterville AK 50500.

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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Anonymous Coward, 11 Apr 2012 @ 7:50am

would this perhaps be an ideal opportunity for the court to state that the most important issue is that learners are allowed to purchase the texts needed for education at a reasonable price, one that actually assists learning and that copyright was put into being in order 'To promote the Progress of Science and useful Arts', not just for profit? if learning material is priced so high that learners cant afford to buy at those prices, how is it promoting progress? how are people supposed to get educated?
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DV Henkel-Wallace (profile), 11 Apr 2012 @ 7:59am

The bad guys will probably win
This appears to be basically the same as West's monopoly on legal books (i.e. court rulings, basically). Although the judges' rulings, as government documents, are public domain, West's publishing of them in paginated volumes is copyrighted. And cases are often referenced by West page numbers.

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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fogbugzd (profile), 11 Apr 2012 @ 8:04am

With almost 30 years of faculty experience under my belt I have to say that textbook prices and policies intended to jack up textbook prices are one of my biggest irritants. It is so bad that textbook prices now rank higher than clueless administrators and the entire athletic department on my list of things that make my life difficult.

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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Anonymous Coward, 11 Apr 2012 @ 8:12am

Financial Aide and Books
I spent half of my financial aide package on books. The rest went for classes and stupid college fees. I didn't even have enough money to buy a back pack to put the stupid books in! The teachers barely use the books. They copy material as most teachers are obviously thieves.

I don't want the old publishers to control textbooks and I dont' want Apple to either.
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Pixelation, 11 Apr 2012 @ 8:12am

Re:
"When reviewing textbooks for 100 level courses it isn't uncommon to find essentially the same diagrams and figures in different texts."

Perhaps this could be used in Bounless' defence.
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Adam, 11 Apr 2012 @ 8:17am

For once, they may be right
First, I agree that the cost of textbooks if far too high. After 6 years of engineering in Canada, $1000 per year seems just about right. These few companies have many ways of raising prices (and profits): printing a new edition every year of two, hard covers, colour printing everything, bulking textbooks with pages and pages of unnecessary examples, etc.

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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Torg (profile), 11 Apr 2012 @ 8:20am

Re:
What are you, some kind of Communist? Those rich enough to afford higher education need people to collect their garbage and cook their food. That's what poor people are for. To suggest that the country would be enriched by having all of its citizens get educations is simply ludicrous. These textbook companies are performing a public service by ensuring that we have a constant supply of cashiers and sanitation engineers, and the open source movement is a clear threat to that noble cause.
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Watchit (profile), 11 Apr 2012 @ 8:24am

All I can say is that Textbook publishers are building a really strong case for me to continue pirating there over priced fact books...
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Seegras (profile), 11 Apr 2012 @ 9:00am

Well known practice in software
What Boundless does is of course what everyone in software does. Thousands of open-source programs are just "replacement" copies of closed source program.

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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Josef Anvil (profile), 11 Apr 2012 @ 9:02am

Ok Im confused
For the most part (99%), aren't text books supposed to be factual? How exactly is copyrighting facts supposed to be useful?

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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PRMan, 11 Apr 2012 @ 9:19am

Re: Financial Aide and Books
My first year, I bought every book religiously. But after a while, I realized that many books were used for a single assignment or never at all.

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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PRMan, 11 Apr 2012 @ 9:20am

Re: Re: Financial Aide and Books
Oh, and they would buy back used books for less than half. I would start showing up to other classes on the first day and selling my used textbook for 80% to a student that hadn't picked theirs up yet.
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John Fenderson (profile), 11 Apr 2012 @ 9:41am

Re: Ok Im confused
How exactly is copyrighting facts supposed to be useful?

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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Robert Doyle (profile), 11 Apr 2012 @ 9:56am

Re:
What we call 'errata' they call 'editions.'
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Anonymous Coward, 11 Apr 2012 @ 10:10am

Re: Ok Im confused
LOL, higher education has nothing to do with educating or passing on knowledge. It serves three major functions (from the student perspective):

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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Lord Binky, 11 Apr 2012 @ 10:23am

Re: Re:
I found it quite interesting, the books were written by different people, but the chapter titles and information contained was very similar. The content being the same is what you'd expect, it's not like the formula's had changed in 20 years. What is odd, is that the first chapter of the old book, was the same as the last chapter of the new book. The new book literally taught the class backwards, which is why I sifted through old books to find a better reference to make some damn sense.

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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Anonymous Coward, 11 Apr 2012 @ 11:37am

Re: Re: Financial Aide and Books
"My first year, I bought every book religiously. But after a while, I realized that many books were used for a single assignment or never at all. "

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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hmm (profile), 11 Apr 2012 @ 11:39am

Well
Maybe its time for a FRAND type system on educational materials? Where they must be licensed and sold for a "reasonable" profit, not a 65% markup (and other companies may license the entire contents for resale again for a "reasonable" fee)

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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Lawrence D'Oliveiro, 11 Apr 2012 @ 3:15pm

�FRAND� + Monopoly = Nonsense
How do you decide what�s �reasonable�? Normally in a free market that�s decided by competition offering alternatives at competitive prices. But copyright is by definition is a monopoly, therefore there is no competition. Therefore there is nobody to keep the price from getting too high�the monopolist can charge as much as they like, and, in the absence of a standard of comparison, still claim it�s �reasonable�.
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Anonymous Coward, 11 Apr 2012 @ 6:04pm

Re: For once, they may be right
I have to agree with you. If Boundless had created their own paragraphs that covered the same topics and had created their own ordering for those paragraphs, then there would be no case. However, their decision to copy layout and design, right down the page numbers, is very clearly copyright violation.
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Anonymous Coward, 11 Apr 2012 @ 6:06pm

Re: Well known practice in software
Unfortunately this analogy is imprecise. A better one would be if Boundless had taken the code from a close source program, changed all the variable names, and then tried to publish it.
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ottermaton (profile), 12 Apr 2012 @ 6:01am

Re: 'Lawsuits arrrrrr Us' was sued today...
a subsidiary of Dewey Cheetum and Howe

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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pr, 12 Apr 2012 @ 7:17am

Re: Re: Well known practice in software
A legal open source would be something produced in a clean room, like when Compaq duplicated the functions of the IBM bios using people who had never seen the code for the original. Copying the original down to using pictures of bears to illustrate the same concept is much closer to copying than to creating an original work.

I'm afraid that, despite their noble intentions, Defendant has screwed the pooch.
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Niall (profile), 13 Apr 2012 @ 4:27am

Re: Re:
I voted Insightful for this.
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Anonymous Coward, 14 Apr 2012 @ 8:40pm

If they literally DID just paraphrase someone else's book, then I do have to agree the publishers have every right to sue. But if boundless writes all their own original material, (in terms of graphic design and arrangement of subjects; obviously the info itself can't change) I don't see what the problem here is. Although I am very interested to see how they possibly make good enough money to pay their writers a fair salary if they don't charge for their service.
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Anonymous Coward, 15 Apr 2012 @ 2:13am

Re: Re: Re: Well known practice in software
Indeed, boundless does seem like it's SOL. It's also a good example on why things like textbooks can't be offered for free if you expect an original quality product. Graphic design and writers aren't cheap after all! I would have no problem subscribing to a service like boundless that offered alternatives to the books I need for classes, IF I am getting a good quality alternative.
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Anonymous Coward, 15 Apr 2012 @ 2:16am

Re: Re: Re: Well known practice in software
Oh, and in your compaq example...they STILL copied the IBM bios. They just fucked around with the rules to get away with it. One team was in charge of figuring out how IBM worked and how to replicate it, and the other team was given instructions on how to build it. Talk about one hell of a loophole! A lot of you guys here talk about not stifling competition, but this shit is EXACTLY what discourages investors and companies from taking a financial risk in new stuff.
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