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!!!!!!!
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.