Appeals Court Tells Government It Must Extend Educational Institution FOIA Fee Price Break To Students

from the you-can-always-make-it-up-with-student-loan-interest dept

The perennial FOIA Reform Masquerade Ball is again under way, with legislators attempting to dodge blustery requests to "cut in" by administration officials and similarly-motivated federal agencies. The dance usually ends with Congressional committee chairmen yanking needles from records and booting everyone out of the dancehall.

Meanwhile, limited headway is being made in another branch of the government, far from the muffled protests of overwhelming majorities who have been shouted down by parties of one. The DC Appeals Court has just ruled that the government must extend its FOIA fee discounts to students at educational institutions, rather than just to instructors and administration.

The Department of Defense has fought this the whole way. It wanted a clear-cut delineation between students and staff for reasons only it comprehends, as that would mean saddling those with fewer financial resources (students) with higher fees.

The decision starts out by noting that FOIA fees -- if high enough -- are an effective deterrent to requesters. It then goes on to examine the government's assertion that the category of "educational institution" does not include these institutions' student bodies.

We thus must decide whether the statutory term “educational institution” is properly read, as the Government reads it, to include teachers but exclude students from the category of preferred requesters who are eligible for reduced fees. We conclude that the Government’s reading is inconsistent with the statute. Indeed, we think the Government’s reading makes little sense at all.

[...]

It would be a strange reading of this broad and general statutory language – which draws no distinction between teachers and students – to exempt teachers from paying full FOIA fees but to force students with presumably fewer financial means to pay full freight.

The government -- in making its nonsensical argument that students are not part of educational institutions -- relies on two different pull quotes. One is from a statement Sen. Charles Leahy made way back in 1986 during his legislative push to amend the FOIA to reduce fees for schools.

“A request made by a professor or other member of the professional staff of an educational or noncommercial scientific institution should be presumed to have been made by the institution.”

The government has chosen to believe this excludes students. The court, however, points out that Leahy was actually expanding the definition from what was originally assumed: that only top-level representatives of education institutions (presidents, chairpersons, etc.) could benefit from the lowered fees. The amendment, as written, makes no delineation between staff and students, no matter what the government feels Leahy must have meant when he made that statement.

The second pull quote is from an OMB (Office of Management and Budget) FOIA guideline.

“A student who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and the request would not qualify” as a request made by an educational institution.

With this, you'd figure the DoD has a point. But it doesn't, as the court explains. There are questions that need to be answered and one of them is, "How does the OMB arrive at this conclusion without a single statutory leg to stand on?"

In our view, OMB’s rule for student requests is inconsistent with the statute. FOIA refers broadly to an “educational institution.” As we have explained, we see no good basis in the text or context of FOIA to draw a line here between the teachers and students within the educational institution. The Guideline’s ipse dixit distinction of students from teachers is entirely unexplained and unpersuasive. The Guideline says that a geology teacher seeking information about soil erosion to support her research is entitled to reduced fees. But why not the geology student seeking the same information for the same reason? Crickets. We discern no meaningful distinction for purposes of this statute between the geology teacher and the geology student.

As the court sees it, the OMB's diversion from the statutory mean may be more motivated by its position (the "Budget" part of OMB) to seek higher fees from more requesters -- allowing it to make more money while deterring a certain percentage of FOIA requesters. If so, that's its own problem and one it fixes immediately. The FOIA isn't supposed to be a profit-making enterprise, much less a reliable revenue stream.

But this statute, as we read it, does not empower the Government to pursue fiscal balance or provide relief for the FOIA bureaucracy on the backs of students. The statutory text and context lead us to this simple conclusion: If teachers can qualify for reduced fees, so can students.

The court cautions that its take on the "educational institution" price break is not meant to be read as FOIA: Student Edition and used by attendees to obtain cheap documents for personal or commercial use. It says the government can take steps to prevent abuse by requiring things like copies of student IDs, letters from instructors, etc. That being said, the court is similarly not granting agencies the power to follow the letter of ruling while doing everything they can to break its spirit.

We caution agencies against requiring hard-to-obtain verifications that will have the practical effect of deterring or turning away otherwise valid student FOIA requests.

This is a win for student Kathryn Sack and for all others similarly situated. It returns a fee exemption to a more logical place, rather than leaving it in the shape it was, where it could be used to deter requesters with limited means.

Filed Under: education, fees, foia, information, prices, students

Comcast CEO Admits You 'Can't Keep Raising Prices Forever,' But Seems Intent On Trying Anyway

from the self-inflicted-wound dept

As Internet video continues to slowly pick away at cable subscriber totals, most cable companies have absolutely refused to compete on price. Apparently, most of them intend to see just how long they can get suckers cable TV customers to keep paying an arm and a leg for bloated bundles of mostly awful content, only actually competing on price when the problem of cord cutting hits critical mass. Until then, cable execs spend their time either pretending that cord cutting doesn't exist, or proudly fooling themselves into thinking they still offer the best video content value in the streaming video and BitTorrent age.

Every so often a cable executive will pop up from milking the cable cash cow to pay a tiny bit of lip service to the idea of lower prices and more flexible cable bundles. The latest case in point is Comcast CEO Brian Roberts, who this week at least acknowledged that the cable TV cash cow is not immortal:

"This conversation that is happening right now only is going to accelerate (cable adaptation). I do think on the other side, however, there is a realization that you can’t keep raising prices forever and [without] either having serious margin change or people saying ‘I’m going to live without some channels.’ I think you’re seeing that tension rise. I think these things have a way of correcting or balancing out before something draconian happens. I’m hopeful that is the case."

Except the Internet video revolution isn't going to magically "correct" itself or "balance out." It's going to swallow the cable industry piece by piece until it finally listens to consumers and starts offering better value and better customer service. And while cable TV customer defections are happening at a slow trickle right now (Comcast lost 69,000 subscribers last quarter), it's only going to accelerate as the options improve. These losses will also start hitting Comcast's voice subscriber totals as wireless service improves, digital voice becomes irrelevant, and Comcast customers look for ways to trim their bloated bills.

As Roberts was busy stating the obvious, many were quick to point out that Comcast's busy imposing all manner of new TV and broadband price increases as is the cable industry's proud fall tradition. Cable TV prices are rising, broadband prices are increasing, DVR, set top and cable modem prices are rising -- and there's always a new, obnoxious, below-the-line fee around the corner. And whether it's set top boxes, net neutrality or last mile competition, Comcast works tirelessly to ensure this skyward price hike status quo remains firmly intact, all while offering the worst customer service in any industry.

So go ahead, cut your cable TV line; Comcast will just take its pound of flesh from your broadband bill via rate hikes, sneaky fees, usage caps and overage charges (or a new $30 fee if you want to avoid usage caps entirely). And because many of Comcast's territories are actually becoming less competitive than ever as telcos exit unwanted DSL markets, there's not much customers can do about it short of building their own community ISP.

Filed Under: brian roberts, cable tv, prices
Companies: comcast

New Zealand Prime Minister Admits Drug Prices Will Rise Under TPP -- Leaves Out The Part About More People Dying

from the gotta-help-out-those-corporate-interests dept

As we're in the middle of crunch time for the final TPP negotiations, New Zealand's Prime Minister John Key has finally admitted what many experts have been saying for years -- that under the TPP, drug prices will undoubtedly rise, because it extends monopoly protections on important medicines. Key tries to play this off as no big deal, because it's the government paying for the medicine so the public won't notice (leaving aside the fact that it's their tax dollars). However, folks who actually understand basic economics note that, when the price goes up, access to drugs gets more difficult even in New Zealand, where it's noted that some key life saving drugs have not been made available because they're too expensive. One doctor in New Zealand talked about how other expensive drugs are not available:

He said 300 people died of malignant melanoma each year. Patients would benefit from using the new drug but it cost $100,000 to $200,000 annually for each person. In total that would cost the drug-buying agency Pharmac $30 million to $60 million a year.

Dr Fitzharris said that under TPP it was likely getting access to these new, more effective drugs would be delayed even further.

Medicines New Zealand says the most recent OECD report shows New Zealand comes last out of 20 countries when it comes to access to new medicines.

Back in the US, even a bunch of Congresscritters who voted in favor of giving the USTR fast track authority appear to be having a bit of buyer's remorse as they've asked the USTR to explain why it appears the current draft of the TPP will make drugs more expensive rather than less.

We are concerned that the TPP would fail this scrutiny if it does not meet or exceed the standards set under the May 10th Agreement, reached by House Democrats and the Bush White House in 2007, with respect to timely access to affordable medicines in developing countries.

And even the AARP has stepped in to point out that it appears the TPP is going to make it more difficult for the US elderly to afford drugs:

Specifically, AARP objects to intellectual property provisions in the draft TPP agreement that unduly restrict competition by delaying consumers’ access to lower-cost generic drugs. These anticompetitive provisions include extending brand drug patent protections through “evergreening” drug products that provide little to no new value and prolong high prescription drug costs for consumers, linking approval to market generic or biosimilar drugs to existing patents in a way that protects only brand drugs, and increasing data exclusivity periods for biologics that further delays access by other companies to develop generic versions of these extremely high-cost drugs. These provisions are all designed to ensure monopoly control by brand-name drug companies.

How can the USTR and the Obama administration continue to insist that the TPP is in the public interest when it's abundantly clear that it's in the pharmaceutical companies' interests instead?

Filed Under: access to medicine, biologics, drugs, medicine, new zealand, prices, tpp, trade agreements

Developers Of Chrome Extension That Finds Cheaper Textbook Prices Receive Legal Threats From Major Textbook Supplier

from the cease-and-desist-of-self-affliction-+1 dept

The textbook publishing industry has turned books of facts into overvalued goods on par with "priceless" finds at antique stores. To keep margins high and the revenue stream flowing, publishers screw with pagination in order to create "new" editions every year, turning textbooks into useless piles of paper the moment they're purchased. Trading one in at the end of the class means receiving pennies on the dollar for your original investment. Stocking up for another semester's worth of classes means shelling out hundreds, if not thousands of dollars. Rinse. Repeat.

So, when someone comes along and threatens this business model, publishers are swift to react. Offensive efforts -- like locking schools into yearly purchases for instructors' versions and acting as "partners" in campus bookstores -- have mitigated most of the damage caused by outside forces like Amazon and used book retailers.

But the publishers also play defense. A side project from Texts.com (a service that helps students scour the web for the best prices on textbooks) has caught the attention of Follett, one of the nation's largest suppliers of campus bookstores.

OccupyTheBookstore is a Chrome extension that allows users to find better prices on textbooks while browsing bookstore websites. Follett doesn't like this because the extension draws sales away from the stores it supplies. It sent a cease-and-desist request to the team behind the extension, asking (nicely, at this point) to knock it off or it will be "forced" to involve its legal team.

In an AMA at Reddit, the team announced it has no interest in complying with Follett's request.

We've been asked to remove the extension by Follett, a $2.7 billion company that services over 1700+ college bookstores. Instead of complying, we rebuilt the extension from the ground up and re-branded it as #OccupyTheBookstore, as the user is literally occupying their website to find cheaper deals.

Because of the way the extension is constructed and operates, it would appear Follett has no legal basis for its takedown demand.

Follett had a few angles, none of which have much merit:

They could try the Copyright angle, arguing that our plugin constitutes copyright infringement by creating an unauthorized adaptation of their page. That said, we're opt-in, so while we are modifying the web page, we're only doing so with the end-users permission. Additionally, we’re not manipulating information or blocking the ability to use any/all aspects of the site if the end user so desires.

They could also try the Terms of Service angle, saying that we're knowingly equipping their users to breach the TOS by using scrapers, data-extractors, etc. That said, we never directly interact with any bookstore website, we merely supplement information provided by the end-users local browser. As such, we think that they could theoretically go after the individual student, but they probably would never bother.

In searching for precedent, we looked at AdBlock heavily, and also at price-comparison plugins like Honey.

This thought process was confirmed by Honey's developer, who pointed out that end users have the right to modify content delivered to their browsers. What the extension does is bring Text.com's search power to the bookstores' websites via an overlaid menu. It makes no use of the original website other than to gather the book information needed to provide relevant results -- something any user could do with a few extra steps. The original website is unaltered. Only the new menu -- opted into by the end user -- provides anything different from the normal user experience.

Follett's legal team has likely already determined the company can't do much about this extension, hence the polite request to stop. The next move -- if there is one -- will probably be vague pressure and subtle hints about expensive future court battles, even if the extension's developers would likely prevail. The good news is that the team has heard from the EFF, which has extensive experience in fighting this sort of quasi-legal chicanery.

The other good news is the inadvertent effect of Follett's shutdown attempt: the extension is far more popular now than it was before the company tried to head off this threat to its business model.

In an interview, [Texts.com founder Peter] Frank said that before today the tool had only been downloaded 200 times since it was first made available in April. By Friday evening, it had been downloaded 15,000 times.

All Follett had to do was leave it alone. Now, it's faced with a viral opponent and armed with little more than law firm letterhead.

Filed Under: chrome, extension, occupy the bookstore, occupythebookstore, peter frank, prices, textbooks, threats
Companies: follett, texts.com

Study Indicates College Textbook Piracy Is On The Rise, But Fails To Call Out Publishers For Skyrocketing Prices

from the the-best-way-to-replace-'lost'-money-is-to-charge-people-more,-apparentl dept

More college students are pirating textbooks, or so a report seems to indicate even if the methodology seems a little less than solid. The numbers (reported here by Reason) are based on self-reporting from survey respondents, which means the supposed uptick in infringing downloads may actually be a downturn, or nowhere near the actual percentages. But here are the numbers reported by the Book Industry Study Group, which sounds like the entity least likely to receive accurate infringement numbers from survey respondents.

The group surveyed 1,600 students, 25 percent of whom said they or someone they knew illegally downloaded textbooks. That's up 8 percent from the previous year.

Most likely, this number is low -- but the methodology is already suspect. Adding "or someone they knew" makes the results somewhat meaningless without more details. To illustrate, take an extreme hypothetical: on a campus with 100 students, if you have one super popular student who illegally downloads textbooks while everyone else doesn't, you could have everyone report "they knew" someone who "illegally downloaded," leading to 100% even as the actual percentage is 1%. Any survey that has a "you or someone you know" in it almost certainly creates a double, triple, quadruple counting problem as there's no way to distinguish if the "person known" has already been counted in the survey methodology.

Here are some of the "key takeaways" BISG has posted based on these results.

Students report a gradual decline in the use of both core textbooks and learning management systems with a somewhat increased usage of online study guides, suggesting that pedagogical material is becoming more flexible in ways students value.

Students continue to become more sophisticated in acquiring their course materials at the lowest cost as illicit and alternative acquisition behaviors, from scanned copies to illegal downloads to the use of pirated websites, continue to increase in frequency.

The report assumes the self-reported infringement increase is legit, but the key takeaways never point to the main culprit: textbook publishers. Perhaps that's because these studies were underwritten by those who would be least receptive to open criticism.

BISG thanks Diamond Sponsor MBS Direct, Platinum Sponsors Barnes and Noble College and McGraw-Hill Education, and Gold Sponsors Cengage Learning, Follett Higher Education Group, Pearson, and Blackboard for sponsoring Student Attitudes Toward Content in Higher Education Volume 4 and Cengage Learning and Barnes & Noble College for sponsoring Faculty Attitudes Toward Content in Higher Education.

Prices for textbooks border on extortionate. Valerie Strauss, covering the subject for the Washington Post, notes that prices for both tuition and books have increased at unreal rates over the past several years. (It should also be noted that BISG's report is no bargain -- $675 for "summaries" and $3,195 for the "Volume Four Bundle PDF".)

Strauss also notes data from a 2013 Government Accountability Office study. It shows that textbook prices nearly parallel the astronomical inflation tuition and have gone up 82 percent in the last decade. An American Enterprise Institute Paper indicates that in the last 35 years textbooks have gone up a jaw-dropping 812 percent – hundreds of percentage points higher than general consumer prices, new houses, or even medical services.

Book publishers contribute to this skyrocketing rate by forcing the purchase of new editions nearly every single year -- using little tricks like adding or removing a few paragraphs to force repaginating or adding minimal amounts of new material in order to claim the previous version is now outdated.

Publishers are also trying to curb piracy by selling digital versions that are somehow only "good" for a single year (thanks, licenses!) and rendered inoperative if pirated by requiring an internet connection to access content and features. These are usually only slightly cheaper than their physical counterparts, but can't be resold at the end of the year to recoup any of the purchase price and can be completely useless to the purchaser (depending on what's locked up by the license) after the end of the license term.

So, if students pirate books and are doing it more frequently, at least some of the blame rests on the shoulders of the publishers and their overpriced offerings. Abuse a captive market long enough and it will start routing around you.

Some of the blame lies with the instructors and the universities themselves, who require certain specific versions (and will accept no substitutes) or are more interested in pumping up sales of their own works than ensuring their students can afford to take their classes.

A year ago a student wrote on a Tumblr blog called “Children of the Stars” complaining about a professor who insisted that students buy an online version of a specific paperback sociology book for more than $200 — which the professor wrote himself — and would not allow them to purchase “an older, paperback edition of the same book for $5.” The student continued: “This is why we download.”

This subject prompted "deep news" site Vocativ to try out some textbook piracy of its own, all under the headline "Why College Students Are Stealing Their Textbooks." (Original titles -- "Why Nobody Is Paying For Expensive Textbooks Anymore" and "Why Lots Of College Students Simply Stopped Paying For Textbooks" [see the page title and url] -- apparently weren't inaccurate/provocative enough.)

Some sites, like Ebookee and TextbookRevolution, focus more on math and science textbooks. Others, like Free-ebooks and Freebookspot, have a deeper selection of humanities-related tomes. We didn’t have to look far to find what we needed. At Textbooknova, we acquired a torrent app and were off to the races. We typed in the titles for our books, one by one, and found them all immediately. Within minutes, we had four textbooks on our hard drive: Herodutus’ Histories, Adam Smith’s The Wealth of Nations, Chaucer’s Canterbury Tales and Physics: The Human Adventure.

Nice "pirating." Three out of the four books listed are in the public domain. Publication dates (in the order listed) 440 BC, 1789 (for the latest edition), 1478 and 2001.

Textooks are foisted upon students by schools and professors, meaning there will always be a market for publishers' offerings. But publishers are burning their facilitators as well with steadily-increasing prices. Educators and administrators are also noticing that publishers are demanding the purchase of new editions every year. Some schools are hesitant to keep passing these costs along to their own paying customers. And others that can't simply allow students to directly take the hit (elementary/high school) are starting to express their displeasure in being treated just as shoddily as thousands of college students. 800 times the rate of inflation over 35 years simply isn't sustainable, and infringement is one of the trailing indicators of an industry that has priced itself out of the market.

Filed Under: copyright, educations, piracy, prices, textbooks

French Politician Wants To Limit How Cheaply Companies Can Sell Goods Online Compared to Physical Shop Prices

from the good-luck-with-that dept

A couple of weeks ago, Techdirt wrote about a store that was trying to charge customers $5 for "just looking", because it felt that many people were merely inspecting goods there before then buying them online. Guillaume Champeau points us to a French politician who is also worried about the same problem, and has proposed modifying the law governing commerce to deal with it (original in French). Here's the politician's explanation in the preamble of why it is needed:

Currently, regardless of the margin necessary for commercial activity the prices charged by distributors in town centers are often much higher than the prices charged by suppliers on their online sites.

This leads local shops to become mere showcases for products, products that consumers prefer afterwards to buy online at lower prices.

Equally, this decay of urban centers affects other sectors, such as hotels and catering.

Also, the proposal submitted to you aims to prevent suppliers from selling online at a price lower than the price at which they sell to distributors. The prices of products sold online may thus remain lower [than in physical shops], but in a reasonable and acceptable way.

The key problem with this idea is that it won't work. Even if the law were passed, people would just buy from online stores outside France, where prices will still be lower, because they would be unaffected by the new French legislation. Nor can that be stopped, because one of the impulses behind the European Union is to encourage precisely this kind of competition among companies located in different countries in order to bring about lower prices across Europe for the consumer's benefit.

The real solution, as Mike noted in the previous case, is for physical stores to become more attractive, not for governments to pass yet more clueless and ineffectual laws trying to diminish the power of the Internet.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: competition, france, internet, online, prices, retail