Category Archives: sustainability

And So It Begins…

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According to Reuters:

Houghton Mifflin Harcourt Publishers Inc has reached a deal with more than 70 percent of its creditors to cut $3.1 billion in debt as it faces a lagging textbook market due to drops in educational funding. The publisher said it plans to restructure through a pre-packaged, court-supervised Chapter 11 bankruptcy.

The HMH bankruptcy is not just about decreases in education funding, of course. We must give some credit to Kaleidoscope, Open Course Library, the Utah Open Textbook Project, Flat World Knowledge, and others around the world for showing that freely available OER and open textbooks can completely replace breathtakingly overpriced publisher textbooks – and that students learn the same amount regardless. If you could get the same grade using a $175 commercial textbook or a free online (and $30 or less to print) textbook, which would you choose?

Why are we surprised this bankruptcy is happening? Anyone who’s been paying attention isn’t. The shake up in educational publishing we’ve long anticipated is beginning… and students will be the benefactors.

More on Boundless

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I had a chance to learn more about Boundless last week. Extraordinarily interesting stuff.

Boundless is definitely “an OER company.” A Boundless textbook is comprised of 95% or more pre-existing OER, with a very minimal amount of newly written material. Their development model appears to be as follows: take a popular textbook, analyze its structure and organization in order to create an outline, and fill that outline in with OER. The resulting textbook is an aggregation of OER.

So in order for Boundless to be found in violation of copyright law, a judge will have to say: “you took openly licensed materials, which the court recognizes as both legal themselves and explicitly and legally permitting you to revise and remix them, and you remixed them in an illegal order.” That’s what this case comes down to – is it possible to take individual OER, none of which infringes on anyone’s copyright, and exercise the rights legally permitted in each OER according to their licenses, and still violate copyright? Is it possible to exercise your legal rights in OER illegally?

If the court does rule in favor of the publishers, which given recent pro-business, anti-society behavior we have every reason to believe it will, this sets up a terrific opportunity for publishers. If the plaintiffs win, and if I were a Pearson, the very next thing I would do is immediately publish 100 versions of introductory biology covering every meaningful high-level arrangement of ideas. This locks out other publishers as well as OER providers. Then I would sue every cute little OER-sharer out of existence, whether or not their OER came first. Because I can. Then I would start suing other publishers, and I wouldn’t stop suing people until I ruled the world!!! Mua-ha-ha-ha!!!!!!!

Oh. Sorry.

Anyway, for Boundless to lose the courts are going to have to make another incredibly pro-business, anti-society statement on the scale of Eldred v Ashcroft. The question is – how long are we going to accept this kind of behavior from our legislatures, whose laws enable the courts’ bad behavior?

On the other end of the spectrum, if OER could score a major win in the courts and in public opinion, it would be a huge win for teaching and learning everywhere and a huge blow to the publishing cartel. I wouldn’t bet the farm, but I’m going to remain hopeful.

The Big Publishers’ Strategy on Boundless

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Boundless’ authoring model appears to be based on “reverse engineering” publishers’ most popular textbooks. The big publishers’ court case comes down to a single question – is reverse engineering the same as creating a “derivative work?” The question is critical because the creation of derivative works is regulated by copyright. If the court finds that Boundless’ textbooks are derivative works of the publishers’ books, then Boundless has violated copyright law. If the court finds that Boundless’ reverse engineering is not the same as creating a derivative, then Boundless lives to fight another day.

I’m not a lawyer and can’t say whether reverse engineering is – legally speaking – derivative or not. I’m neither defending nor accusing Boundless of violating copyright law. But to some extent, the lawsuit isn’t the primary goal here for the publishers (though I’m sure they would think a win was nice). The textbook cartel’s broader strategy is crystal clear:

1. Realize that the vast majority of the public have never heard of OER.

2. Use their multi-million dollar marketing budget to make sure that “Boundless = OER” in the public mind.

3. Message their side of the lawsuit to drive public opinion against Boundless, who they will paint as scrupulous “pirates” of their “intellectual property.”

4. Connect the dots to shape public opinion toward the idea that “OER = cheap copiers without creativity and who lack basic respect for copyright.”

5. Whether or not they win this specific lawsuit, the publishers get their wish – the first exposure to “OER” for most Americans will be on the publishers’ terms, equated to theft, piracy, killing bunnies, and the end of civilization generally.

The more interesting issue is this: CC licenses are perpetual (see the 3. License Grant section of the BY-SA Legal Code.) Now that these textbooks are available online under a BY-SA license – which cannot be revoked – what will happen if a judge decides that these perpetually openly licensed materials violate copyright? Hmmmm.