Tuition is a Movie Ticket, OER are Popcorn

More response to the interesting discussion happening on the (closed) oer-community list. Brian Lamb asks:

Finally, can somebody tell me if an NC license forbids reuse by non-profit public education institutions that charge tuition? Seems like a fairly simple question, but I’ve heard authoritative responses that wholly contradict each other on that point.

The extremely misguided thinking Brian is referring to (and not personally guilty of) goes, “If someone is charges tuition for a course that uses a NC textbook, that violates the terms of the license.” This line of thinking is completely wrong. Full stop. Here’s why.

Every person in the world already has permission to use BY-NC-SA materials non-commercially. This group, every person in the world, includes students who enroll in a tuition-charging class. The STUDENT is the user, not the UNIVERSITY. What is the purpose of a textbook? To promote learning. Who learns, the university or the student? The student. Who buys the textbook, the university or the student? The student. The student is the user of the BY-NC-SA material, regardless of who suggests that s/he use it. And if a student wants help exercising their BY-NC-SA rights with regard to an OER, and is willing and able to pay someone to help them exercise those rights more effectively or efficiently than they can on their own, the NC clause doesn’t regulate that. Period.

The mention of “tuition” is a red herring. Tuition has nothing to do with textbooks. When you go to the movie, you have to buy a ticket to get into the theater. But no matter how much the movie theater wishes you would buy their ridiculously overpriced popcorn, they can’t force you to. Likewise, when you take a university course, you have to pay tuition to get into the class. But no matter how much the university wishes you would buy the ridiculously overpriced required textbook, they can’t force you to.

Again, the student is the user and the student is completely within their BY-NC-SA rights to hire a tutor to help them understand the OER, to pay for an assessment of what they learned using the OER, or to use the OER as the primary material they study when they enroll in a university course. What anyone other than the rights holder can’t do is charge for access to the OER.

It’s a little known fact, but the NC clause does explicitly define one use as definitely and in every case noncommercial:

[Exchange of OER] by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

Black and white. In the license text itself. If a university makes BY-NC-SA materials available to its faculty and students, as long as it does not charge for access to the OER they are within the rights granted by the license.

The idea that using NC licensed content in universities violates the license is nothing but FUD, and we simply need some case law to put this argument to bed. But I predict that you will never see a publisher litigate on this issue because they know they will lose, and for their trouble will have paid the legal fees necessary to establish the case law that undercuts their arguments.