Innovative Open Textbook Company Fights Back Against Publishers' Copyright Infringement Lawsuit

from the what-infringement? dept

Wed, Mar 13th 2013 3:04pm — Mike Masnick

Last year, we wrote about how a bunch of the largest textbook publishing firms had teamed up to sue an innovative open textbook startup called Boundless for copyright infringement. Was Boundless reproducing their books? Nope. Instead it had created alternative textbooks from various open sources -- but those texts mirrored the basic structure of other textbooks. It was this copying of "selection, structure, organization and depth of coverage... right down to duplicating Plaintiff's pagination" that the textbook publishers went after. Not the content. Yes, they're pissed off that Boundless cleverly sought to compete in the marketplace by making sure its textbooks were good competitors and easier to substitute in -- but without copying any of the actual content.

It's been nearly a year, but Boundless has filed its counterclaims, denying the various charges, and insisting that its works have never infringed, that the textbook publishers are claiming copyright over "non-copyrightable material" and that even if there were infringement, they are protected by fair use. They also claim that the lawsuit is a form of copyright misuse and shows the publishers' "abuse of the copyright monopoly." Should make for an interesting case.

At the same time, Boundless is also seeking a declaratory judgment on its new offerings. Apparently, the company changed its offerings substantially over the last year, and while the case is still over what those earlier offerings looked like (which Boundless believes did not infringe), it's seeking a clear statement that its newer offerings won't get the company sued as well. Boundless' lawyer sent the publishers a letter last month, asking them to make it clear that the lawsuit was just over the older versions and that there were no issues with the new version, but the publishers have refused, saying that the results of the trial "will inform... current and future business practices." In other words, let's see what happens with this case, and then we'll decide if we can sue over more stuff.

We recently had a lively discussion in the comments on a recent post about the upcoming Supreme Court ruling in the Kirtsaeng case, which is somewhat relevant. The Kirstaeng case, of course, involves first sale rights, and whether or not you'll be able to resell what you bought legally abroad. A defender of taking away first sale rights (i.e., upholding the lower court ruling) argued that if the Supreme Court allows the first sale doctrine to apply to textbooks bought abroad, it will mean that textbook providers will jack up their prices abroad, rather than offer them cheaply, and thus poor students in third world countries will never be able to afford an education.

As we pointed out, this is hogwash and ignores that markets are dynamic. If the big expensive publishers decide to drop out of such markets, it seems pretty clear that there will be others who will quickly step in -- and innovative companies like Boundless were exactly what we were thinking about. They're not infringing on the works of the big publishers. They're providing much-needed competition against an oligopoly that has worked hard at keeping prices ridiculously high for educational resources. It's a market ripe for disruption, and it's silly (though not unexpected) that publishers are seeking to abuse copyright law to stamp out that disruption, rather than learning to innovate themselves.

Amended Answer and Counterclaims (F1184644) (PDF)Amended Answer and Counterclaims (F1184644) (Text)

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Filed Under: copyright, open, textbooks

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out_of_the_blue, 13 Mar 2013 @ 3:37pm

How many times I gotta tell ya: markets are NOT dynamic!
They're as locked up as can be.

WRT Kirtsaeng: again, resellers don't have primary rights; there's no competition from the reseller until it has obtained the books; it produces nothing of its own so that's not competition, it's grifting via arbitrage.

And here, again, a company is in trouble for copying, even if only layout, when it should have created all from scratch. I think there's a reasonable basis for the suit (hedging that I rely on your outline), but I wouldn't award more than a token $1 for actually going to court with it.
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Anonymous Coward, 13 Mar 2013 @ 3:44pm

Actually, I've worked with a professional history book writer before and this is quite normal. The exact layout shouldn't be copied in terms of picture spacing just to be safe, but to rephrase another book paragraph by paragraph? Airtight legal and done every day. You can only copyright specific words in a specific order, not ideas.
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Anonymous Coward, 13 Mar 2013 @ 3:47pm

I always wondered if someone skilled the field of the textbook could just take content from a bunch of Wikipedia articles, copyedit them and release a textbook in far less effort than writing from scratch.

Seems to be what they are doing in some sense. So these textbook publishers claims are pretty fucking baseless, even under extreme interpretations of copyright law.
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Anonymous Coward, 13 Mar 2013 @ 3:50pm

Re:
One wonders also why are they so threatened by a bunch of curated Wikipedia articles in textbook form? Wouldn't their "professional" product be much better and stand out on its own? Thus worth the $150 or so they charge for it? Heh.

I'll readily admit Wikipedia helped me through college more than my textbooks ever have. There are definitely some good textbooks out there, but a lot of them are garbage too. Step up your game assholes.
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Digitari, 13 Mar 2013 @ 4:05pm

Re: How many times I gotta tell ya: markets are NOT dynamic!
the lay out of your reply is infringing OOTB, just look at the spacing of other replies in the past, you have copied them, there for one again your are an infringer and should be sued in court

OOTB is a fucking freetard and ADMITS it

http://www.techdirt.com/articles/20111208/12500917012/riaa-doesnt-apologize-year-long-blog-cen sorship-just-stands-its-claim-that-site-broke-law.shtml
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anonymouse, 13 Mar 2013 @ 4:44pm

at last
As long as they can show they have been paying for the layout of the books separate to any other payments they have made for the copyright they have paid for i would say they have a case, but if they have not been paying anyone for the layout design they are themselves guilty of collusion, only requesting payment from one publisher and not charging the same to other publishers.I doubt they have any evidence of any payments for this or the structure of other books to anyone, and they themselves could be sued by the first person that ever wrote a book with a similar structure to theirs. Also the fact that they still want to sue for the new layout proves that it has nothing to do with the layout and i am 100% positive a court will see this.
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Gwiz (profile), 13 Mar 2013 @ 5:06pm

Re: How many times I gotta tell ya: markets are NOT dynamic!
And here, again, a company is in trouble for copying, even if only layout, when it should have created all from scratch.

You obviously miss the point of what Boundless was trying to do - create a replacement for obnoxiously high priced textbooks. They created their own content and kept the same structure so when an instructor said read pages 156 to 312 for next class it covered the same material. That's just competition at it's finest, pure and simple.
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That One Guy (profile), 13 Mar 2013 @ 5:14pm

Re: Re: How many times I gotta tell ya: markets are NOT dynamic!
Okay, could you stop with the annoying 'signature' already?

It's annoying when OOTB does it, and it's annoying when you do it as well, and in both cases all either of you are really doing is essentially holding up a sign with 'ignore me' written all over it.
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Anonymous Coward, 13 Mar 2013 @ 5:23pm

Re:
"Airtight legal..."

Maybe. Maybe not. As lawyers repeatedly tell clients, "It depends..."
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Anonymous Coward, 13 Mar 2013 @ 5:25pm

Re:
If the wiki articles are free of copyright claims there should not be any significant risk creating such textbooks. However, I would not be so quick to dismiss the claims here as "baseless".
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Anonymous Coward, 13 Mar 2013 @ 7:11pm

As we pointed out, this is hogwash and ignores that markets are dynamic. If the big expensive publishers decide to drop out of such markets, it seems pretty clear that there will be others who will quickly step in -- and innovative companies like Boundless were exactly what we were thinking about.

This has been going on for decades. Where have these competitors been all of these years. Anyone know what the market size is for Western medical school anatomy texts in Thailand? Why haven't new competitors gained any real foothold in the comparatively vast US market? Can a start-up make it in foreign markets alone? I'm not at all convinced.
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Anonymous Coward, 13 Mar 2013 @ 7:20pm

After looking at the Boundless website, I see that one would have to almost certainly have to have a laptop or PC available 24/7. Since they seem to (currently) only occupy the undergrad niche, I have a hard time seeing how they're a viable alternative in less developed economies where many fewer students own a computer.

I also couldn't tell from the website how they make money. It invites you to sign up from a free text (I didn't) but couldn't tell if everything was free or if that was a teaser.
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Anonymous Coward, 13 Mar 2013 @ 9:21pm

Re:
I too visited the site, including registering to see how it works. Perhaps there is something I have overlooked, but at first glance it appears to offer "alternatives" that are "cloud" hosted...leaving me wondering what one does w/o an internet connection, or if it is possible to download entire books to one's device, whatever that may be.

Given the site's description of how alternative materials are prepared, unless I am missing something it seems to me that the site needs to secure a copy of a publisher's textbook, digitize same, mimic its arrangement of chapters and topics, and then copy material from the internet to fill-in each chapter and topics. Moreover, if a reading assignment from a "regular" textbook is given, the pages in the regular textbook are sent to the site, whereupon the counterpart subject matter in the alternative textbook is identified for study.

Obviously, many details remain to be fleshed out, but at first glance is does seem that the site is at legal risk for any number of actions, including, inter alia, digitizing the entirety of the original textbook, incorporating the structure of the original textbook into the alternative, and distributing the alternative to students. Each of these clearly cut against the grain of Fair Use, which leaves me wondering how likely is it that its original offerings will be found non-infringing (an uphill battle for sure) and how its newer offerings are purportedly able to avoid infringement given the site's stated method for crafting alternatives.
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Anonymous Coward, 13 Mar 2013 @ 10:59pm

Re: Re:
"I'll readily admit Wikipedia helped me through college more than my textbooks ever have."

If you're depending on Wikipedia for accuracy, I'm suprised you managed to graduate.
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G Thompson (profile), 14 Mar 2013 @ 1:03am

Re: How many times I gotta tell ya: markets are NOT dynamic!
Feist v Rural disagrees with your erroneous and non logical conclusion that there is a basis for the suit.

One again you have no idea what you are talking about.
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Anonymous Coward, 14 Mar 2013 @ 1:23am

Re: Re: Re:
If you aren't checking out the citations at the bottom of the wiki article to double-check anything you need to be absolutely accurate, I'm surprised you've got enough to even form an opinion on the site.
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Anonymous Coward, 14 Mar 2013 @ 2:56am

Re: Re:
Lawyers will always tell clients that as they wish to be consulted and paid every time the client does something new, even if it is the same in principle as the last thing they did.
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Anonymous Coward, 14 Mar 2013 @ 3:03am

Re: Re: Re:
Its as Good as the Britanica
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Anonymous Coward, 14 Mar 2013 @ 3:31am

no different to anything else. copyright and patent laws discourage innovation and competition becuase it gives monopolies to particular companies for decades, rather than having even them progress their products, their business models and their thinking.
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Ninja (profile), 14 Mar 2013 @ 4:09am

I hope boundless doesn't fail under the weight of the legal expenses like mp3.com did for instance. The oligopoly has tons of resources to throw aiming to shut down competition. Expect much, much more lawsuits to be thrown at Boundless. At this point they don't care about losing if the competitor is forced to close doors due to the legal expenses.
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Englebert the Immensely Well Endowed In Trouser Sn, 14 Mar 2013 @ 4:25am

wording doesn't have to come into it
if they've purely paraphrased the original texts then I think there is a case against them. A book cannot cover every aspect of a subject - it therefore has to be selective - and if their selection of areas to cover and examples (and equally what not to cover) matches, then they can be seen to be copying. And if they haven't used the same subject areas and examples, their aim to allow page number to match the original text is less beneficial.

I'd also question whether their version has been effectively peer reviewed in order to officially be a textbook.

Good luck to them though. The mark up on text books possible due to the obligated market is appalling.
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Ninja (profile), 14 Mar 2013 @ 4:47am

Re: wording doesn't have to come into it
I disagree. It's an idea that's being explained. It's the same bs of the rounded corners in that Apple litigation. FFS it's a form that's not functional in anyway. It matters not which order they use as the content will be transmitted to the student regardless of the structure/order. However, if they use the same structure they provide easy alternatives to courses that were structured on existing expensive books.

If the content of the more expensive book is so much better than the open source one then it has nothing to fear. However we know that the pricing for those textbooks is sheer insanity and people will surely flock to the open source one despite any limitations.
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Anonymous Coward, 14 Mar 2013 @ 7:44am

The funny part is that US copyright was supposed to be a temporary monopoly to advance education and eventually expire so that the knowledge could be freely copied.

It was never intended to allow perpetual education monopolies that are refreashed every time the expiry date comes round.
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special-interesting (profile), 14 Mar 2013 @ 8:15am

Re: How many times I gotta tell ya: markets are NOT dynamic!
I kind of agree with OOTB in that our markets are locked up in layers (and layers and tons) and tons of regulation as it seems every industry from sugar to aircraft have their own special interest protectionist legislation. The realm of intellectual growth and advancement (and the culture of such) is tied by eternal copyright.

Yes there is still a lot of dynamism left in the markets and am grateful for that. The attitude of �it moves; tax and legislate it!� will kill off many of the good ideas in favor of the one (firm, group?) writing the text of the legislation.

Legislation by itself is not always bad but legislation written by and for a monopoly is.
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jupiterkansas (profile), 14 Mar 2013 @ 8:26am

Re: Re:
I've been reading my daughter's 9th grade history book, and it's appalling how little information there is. She would learn a lot more to just take the table of contents and look it all up on Wikipedia. I don't see why they even need a textbook.
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special-interesting (profile), 14 Mar 2013 @ 8:37am

Great concept but its implementation is flawed in that their work (poked about their website a bit.) is not a downloadable stand alone product. The material seems accessible only on their website.

Books (and knowledge in general) need to be more portable than a wifi connection allows and more durable than some temporary website or firm. Wikipedia is less than 10GB and many schools install a local server for it. I would expect a local copy of any such text used in a college or otherwise course.

It looks as though they did not copy anything and are being sued for semantics. It seems they wrote and created their own work with no copying at all. (semantics as in substituting in different words yet still getting the same, for better or worse, intellectual argument)

The Plaintiff's claim of "selection, structure, organization and depth of coverage... right down to duplicating Plaintiff's pagination" sounds so vague and airless it escapes me.

No matter how you toss it up textbooks almost always look the same and develop the subject matter using the same intellectual threads. There have been no new textbook format since Newton's Principia. (and even that...) Even most e-books use the traditional textbook formats. Even the word �textbook� is enshrined as a stereotype phrase denoting a standard format. (am exaggerating for sake of argument, but in defense of that, the textbook current layout has developed so glacially slowly over the last few hundred years its comic relief)

For some group of firms to claim copyright on �textbook format� one might just as well copyright the format of binding pages together and calling this newfangled thing a 'book'. Better yet put it up on a screen and call it a web page!

It seems that copyright is mainly used to harass your competitors. Lets get rid of it.
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art guerrilla (profile), 14 Mar 2013 @ 12:57pm

Re: Re: How many times I gotta tell ya: markets are NOT dynamic!
korporate overlords ? ? ?
protect them at all costs ! ! !

konsumer scum ? ? ?
rape them again ! ! !

there, that about sums up our current situation to date...
questions ? ? ?

(remember: power NEVER devolves voluntarily...)

art guerrilla
aka ann archy
eof
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Bergman (profile), 14 Mar 2013 @ 9:47pm

Re: How many times I gotta tell ya: markets are NOT dynamic!
By that standard, all retail stores would be illegal, since they produce nothing that the wholesaler did not sell them.
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John, 23 Jul 2013 @ 6:16am

Suits
Apparently publishers can sue for buying books on Websites (like the largest online retailer in the world), and if you don't get their permission you cannot resell them. So if a student buys a book on a website and it happens to be a copy made overseas and they don't know it, and they try to resell it at the end of they try and resell it at the end of the semester without their permission it's copyright infringement. So now you can't buy anything online without getting proof who made it or you can be sued.
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