Open Textbook Startup Sued For Allegedly Copying 'Distinctive Selection, Arrangement, and Presentation' Of Facts From Existing Titles

from the bear-facts dept

The Boycott Elsevier movement discussed here on Techdirt several times was born of a frustration at the high prices of academic journals. But another area arguably afflicted even more is that of textbooks for higher education: According to The College Board, the average college student spends over $1,000 per year on textbooks. At community colleges, the cost of textbooks alone can often exceed 50% of a student’s overall educational expenses.



Is it any wonder that 7 in 10 college students have skipped buying a required text due to price concerns? Just as with the publishing of academic papers, that translates into very fat profit margins: The textbook publishing market is an oligopoly, with over 80% of the textbook market controlled by the top 4 publishers: Pearson, Cengage, Wiley and McGraw-Hill.



These publishers have been able to maintain nearly 65% gross margins on what is essentially a commodity product. They have continued to raise prices for this stagnant product in the face of innovation in every other information related industry, growing at a rate of 3 times inflation. Those figures are found in a blog post from a startup called Boundless that is "committed to bringing educational content into the 21st century," by offering free texts for core higher education subjects that are designed to replace expensive traditional titles. That hasn't gone down too well with three of the leading publishers of textbooks -- Pearson, Cengage Learning, and Macmillan Higher Education -- which have just sued Boundless: Defendant is in the business of distributing online textbooks that it claims serve as "substitutes" for Plaintiffs' textbooks. Rather than produce its own textbooks, however, Defendant steals the creative expression of others, willfully and blatantly violating Plaintiffs' intellectual property rights in several of their highest profile, signature textbooks. Defendant exploits and profits from Plaintiffs’ successful textbooks by making and distributing the free "Boundless Version" of those books, in the hope that it can later monetize the user base that it draws to its Boundless Web Site. The nature of what Boundless is alleged to have "stolen" is rather unusual: Notwithstanding whatever use it claims to make of "open source educational content," Defendant distributes "replacement textbooks" that are created from, based upon, and overwhelmingly similar to Plaintiffs’ textbooks. Defendant generates these "replacement textbooks" by hiring individuals to copy and paraphrase from Plaintiffs’ textbooks. Defendant boasts that they copy the precise selection, structure, organization and depth of coverage of Plaintiffs' textbooks and then map-in substitute text, right down to duplicating Plaintiffs’ pagination. Defendant has taken hundreds of topics, sub-topics, and sub-sub-topics that comprise Plaintiffs' textbooks and copied them into the Boundless texts, even presenting them in the same order, and keying their placement to Plaintiffs’ actual pagination. Defendant has engaged in similar copying or paraphrasing with respect to the substance of hundreds of photographs, illustration, captions, and other original aspects of Plaintiffs’ textbooks. So the accusation seems to be that Boundless books are functional "clones" of existing textbooks, with the same overall organization and pagination, but with different words filling out the topics, sub-topics and sub-sub-topics. The question then becomes whether there is copyright in that arrangement.

The plaintiffs are also concerned about what they term "photographic paraphrasing": An example of the obvious nature of Defendant’s photographic paraphrasing can be found in Chapter 8 of the authentic version of Campbell’s Biology where Plaintiff Pearson and its authors describe the First and Second Laws of Thermodynamics. To exemplify those laws, Plaintiff Pearson and its authors included two photographs, one of a bear catching and eating a fish, and another of a bear running. Plaintiff Pearson and its authors could have used any one of a universe of possible photographic subjects to demonstrate the laws of thermodynamics, but, based on the manner in which they wished to express their aesthetic and scholarly judgments, they opted for the bear engaged in these activities. In Chapter 8 of the Boundless Version of Cambell’s Biology, Defendant also discusses the first and second laws of thermodynamics. Defendant also includes two photographs to exemplify these laws, but instead of basing its selection and ordering on their own aesthetic and scholarly judgments, the two photographs Defendant includes are also of a bear eating a fish and a bear running, reflecting only the previously made creative, scholarly and aesthetic judgments of the authors and editors of Campbell’s Biology. Is the use of a bear eating a fish a creative choice? Or is the creativity only in how the bear and the fish are depicted? In many ways, this is the same question put to a UK judge recently concerning a photo with a red double-decker bus crossing a bridge in London. In that case, rather surprisingly, the judge found that you could copyright the basic idea of a photograph.

In response to the publishers' lawsuit, Boundless says: We’re currently preparing our full response, and we believe that the allegations in this lawsuit are without merit and we will defend our company and mission vigorously. So it sounds as if we may get a chance to see where a US judge stands on that key issue of the idea/expression dichotomy in the case of academic textbooks and pictures of bears. This could be interesting.

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Filed Under: academics, education, textbooks

Companies: boundless, cengage, elsevier, macmillan, mcgraw-hill, pearson, wiley