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.
