The Big Publishers’ Strategy on Boundless

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.

6 thoughts on “The Big Publishers’ Strategy on Boundless”

  1. Has content for schools ever been a pubic debate? You’ve been at this for a long time David, but i’m wondering, the discussion you’ve framed here is about public opinion – is the work of building OER as a viable option for formal education one that is being fought in public opinion? Or am I just being dense and you mean ‘public’ as an extension of ‘influence government policy makers’?

    Thanks, as always, for contextualizing the debate.

  2. Interesting take.  I think you’re right that the suit is a win-win for the publishers: in any clash of incumbent and newcomer, a dirty fight benefits the incumbent, particularly if the incumbent holds all the chips.  As a math-teaching non-lawyer, I can (also) only speculate what a judge will say about the perpetuity of the CC license, but if I were representing the publishers, I imagine my argument would go something like this: the works are derivative; they violate our copyright; therefore they were never legally licensed under CC in the first place.  I.e., I wouldn’t argue that the CC license should be revoked (regardless of whether that’s even possible), but that it was fraudulent to begin with and should be vacated retroactively.  Regardless, the damage will be done.

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