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A Copyright Case to Watch

I remember giving a talk back in 1994, arguing that a non-fiction book was essentially a user interface to a body of information. I predicted that one day controlling the table of contents of a book, rather than its actual contents, might well be a focus of copyright and digital rights management.  (An article from 1995, http://oreilly.com/tim/articles/pubmod.html, contains some of these ideas, but not the prediction about DRM and copyright on tables of contents.)

That prediction has now come to pass, as textbook publishers sue a startup called Boundless Learning (disclosure: I am an adviser) for organizing free educational content in the same order as popular textbooks.  The Slate article linked below lays out the issues.

I'm sympathetic to the plight of the publishers.  After all, I'm a publisher myself. But I do think that textbook publishers in particular have only themselves to blame. They've made sustained efforts to lock in effective monopoly positions for leading textbooks by creating frivolous updates and add-on materials designed only to blunt the resale market for textbooks. Meanwhile, the price of those textbooks has skyrocketed, supposedly justified by lost sales due to - guess what - resale of those textbooks by students.

I remember my own college experience.  I cherished my textbooks, and kept them. But if they cost $300 each, I would certainly have resold them. I couldn't have afforded not to.

Boundless is definitely pushing the envelope here. I've even wondered if the publishers are right, and whether the detailed table of contents of a textbook ought to be a copyrightable element even apart from the contents. After all, pedagogy is very much a matter of teaching the right things in the right order. But then I looked at a number of competing textbooks, and their tables of contents are almost identical.  If it's OK for a publisher to compete with another on the basis of a nearly identical high-priced textbook, it also ought to be OK for a publisher to compete on the basis of a nearly identical low-priced textbook. If the publishers of leading textbooks want to sue Boundless, they should also demonstrate their commitment to the legal theory of the protectability of the order of presentation of material by suing each other.

That being said, I do think that the devil is in the details, and that a lawsuit might actually be necessary to clarify just what is protectable, and what is not.  I suspect, as is often the case, that once publishers get over suing Boundless, they will find ways to leverage its ideas to actually make their textbooks cheaper and better, and to find ways to add value from master professors that makes students willing to pay.  (Think MOOCs with certification of the best students by the master teacher.)

In any event, this is a copyright case to watch.
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33 comments
 
Just read the article.  Wow.  Good on your for making such a prescient prediction.  Bad on the copyright cartel that they have stooped to such a predictably low level.
 
+Tim O'Reilly I am sure that if the Boundless lawsuit is successful you will see the big publishers suing each other over their TOCs
 
Can't help remembering when West Publishing Co. tried to claim a copyright on the page numbers in the National Reporter System (law books). What tangled webs we weave...
 
The german translation of Mankiw's book costs 39,95€.
If you prefer it untranslated then you don't have to pay this crazy expensive price either. There is an "international edition" (paperback) that you can get for around 50 to 70€.
 
+Andreas Fonferek  textbooks are like prescription drugs, the companies charge more in the US for two reasons 1)to recoup R&D costs and 2) because they can
 
+Sanford Arbogast I think "No. 2" is the main reason. If you look into other fields you see that for german books from german authors, even if published by international publishers prices are all on the same comparatively "cheap" level.
Remember, this are "foundation level" books. Specialist books for a very small audience can become more expensive of course.
 
It's ironic they use Mankiw's book as an example.  Even if it were free, it would still be worthless.  Who wants to learn economics from one of the architects of the second biggest financial and economic disasters in the last century? But to pour salt in the wound, college students are going into debt to buy that book.
 
It seems totally insane to pay $300 for a basic textbook in 2013. Economies of scale should push down the price of such books way down.
 
This reminds me of what it was like to be in newspapers 15 years ago. Except in this case it is colleges and universities who mistakenly believe that they have a monopoly on knowledge and education.

They don't. They still have a virtual monopoly on the rubber stamp needed after the education, but that is rapidly changing, too. 
 
+Daniel Lemire +Tim O'Reilly I never paid more than $10 for a textbook when in India ($20 maybe for a book or two). The US system is insane, and needs to be corrected.

Even more worrying is when a certain professor comes up with a system designed to "prevent piracy of textbooks" which is essentially placing a one time password inside the textbook; if the student wants a good grade in the course.
(http://torrentfreak.com/anti-piracy-patent-prevents-students-from-sharing-books-120610/)
 
+Skand Hurkat Oh yes, buying and selling used books is certainly piracy.(Edit: <<<--- SARKASM!!!) I hate those people and I seldomly use the word hate...
And then there is this thing in germany referred to as "school trojan". Don't get me started about that. Stuff may be (sometimes) cheaper here (actually novels and stuff are more expensive here) but business is business...
 
+Andreas Fonferek Whoa! If you consider buying and selling used books as piracy, you've got a serious problem. Don't ever buy or sell a used car... or a used house... or a used computer...
If you like to think of the most basic market practices of buying and selling as "piracy", then I would not like to enter into any further argument, as I'm sure that there is no chance that our views could, at any point, match.
 
+Andreas Fonferek, copyright regulates the making of copies and generally does not concern itself with what happens to copies after they have been made. Selling on a copy you bought is no more piracy than, say, using a newspaper to light up a fireplace after you have read it is arson.
 
+Skand Hurkat +Tor Iver Wilhelmsen  Looks like written language failed at transporting sarkasm, again. I thought "I hate those people" made my point clear. I'm completely on your side. I editet in some clarification.
 
I sold about half of my college books, and the other half are outdated.  Many college professors are printing their lecture notes at college print shops or publishing them electronically.  This saves students money to buy books and time to write notes, so they can focus on the important thing, which is learning.  On behalf of all students, I thank those professors who have invested time to help students and hope more professors will follow.
 
There is no way. A TOC is really just a list of categories, a directory pointing to specific content. Creating a list that is similar to or even identical to a text book, but pointing to different content, cannot be copyrightable. I would hope that Mankiw has something to say in his textbook that makes it worth more than general content on the web.

To me, this is showing that we are at  the top of the bubble for higher education in America. No excuses for a $300 textbook. Or a $185,000 MBA either, for that matter.
 
In the fields I am expert in, the order of things to teach is dictated about 100% by the subject itself. The TOC, as it were, is a pure property of the subject matter itself. To me, this smells of copyrighting the subject matter.
 
There are low priced edition of textbooks in the sub continent but not in North America. The price is very very high. The publishers will fight every initiative that tries to lower their sales/profits.
 
Pedagogy : 1] is the science and art of education. Its aims range from the full development of the human being to skills acquisition. 
 
God forbid if students share a book. The publishers will want to lock them up.. also the web codes generally have a date code so they expire after shop many years.
 
I also sold all of my books. Especially the Mankiw. ;)
But I was especially greatful to be able to sell the books I did not need at all, the books I thought I would need but it turned out I only skimmed a bit through them.
Used books are also a great way for people who struggle to be able to afford studying at all.
I think this initiatives will backfire on the publishers. My only fear is that it will cause collateral damage to the honest publishers because people will not only see the foul playing publishers, but they will simply see "THE publishers".
 
Copyrighting the detailed table of contents is madness. It would effectively ban any future author from organizing content in the same way as past authors -- even if it were a universally accepted way of organizing the information. 

There is a workaround, though: narrative tables of content, not labeled as a ToC. That opens the door to fair-use claims & negotiations in both directions. 
 
here's a serious question: to what extent are the academic divisions supporting the publishing houses financially? 
 
Guess who gets free books :-)
 
My first college math textbook was essentially self-published (I don't think that term really existed back then: my prof created the textbook and went to a printer to have it made, floating the money herself) and was on sale for just a little over cost. I don't remember how cheap it was, but I do remember that it was the cheapest college textbook I ever bought. It was poorly constructed and the printing was completely monochrome. That made no difference to what I learned. It was a great textbook.

If more teachers just did this, the students would swoon for the savings. But my prof was special! She was on a mission.
 
How we answer intellectual property rights questions (as a society) will define the quality of life in the information age.   There's plenty of incentive to generate meaningful information ... we don't need more.
 
Time for a major disruption in this industry. I'm rather shocked they have not been taken down earlier.
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