I saw an account of three major publishers’ copyright infringement law suit filed against open education publisher Boundless Learning (BL) in the April 5th Chronicle of Higher Education blog. If you launching an open education startup, viral word-of-mouth marketing is the inexpensive alternative to advertising. But then you attract venture capital funding and a law suit in the same week, articles show up in The Chronicle and even TechCrunch. Free publicity…. priceless.
- Stealing the creative expression of others
- Violating intellectual property rights
- Exploiting and profiting from Plaintiffs’ successful textbooks by making and distributing the free versions of those books
- Build a business upon Plaintiffs’ intellectual property rights
The example cited in The Chronicle article is about a popular biology textbook:
To illustrate this claim of intellectual theft, the publishers’ complaint points to the Boundless versions of several textbooks, including Biology, a textbook authored by Neil Campbell and Jane Reece. The Boundless alternative, the complaint alleges, is guilty of copying the printed material’s layout and engaging in what the complaint calls “photographic paraphrasing.” In one chapter of the printed book, for instance, the editors chose to illustrate the first and second laws of thermodynamics using pictures of a bear running and a bear catching a fish in its mouth. Boundless’s substitute text uses similar pictures to illustrate the same concepts—albeit Creative Commons-licensed images hosted on Wikipedia that include links to the source material, in accordance with the terms of the open license. (source)
This bear is not running or catching a fish. This bear is bushed. I think this argument is too. At least two general categories of material are generally not eligible for federal copyright protection, according to the government’s Copyright Basics (pdf):
- titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
- ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.
The idea of a bear’s physical activity being used as an analogy for the laws of thermodynamics is not copyrightable. And if the bears are different and the other diagrammatic expressions integrated with the bear not identical, is this any different than the similarity that already takes place between competing commercial textbook publishers trying to illustrate principles of thermodynamics?
Anyway, this is all speculation based on the outlines of a lawsuit and a copies of an open textbook that is still effectively gated for currently in invite-only beta. BL is happy to have all this attention and the roll of David against a Goliath consortium. There are also decent questions about the quality of the BL products, and I have my own opinion about certain free open access textbook publishers around quality and the opportunity to exploit scholarly authors.