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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