Monthly Archives: December 2009

Open Access and Institutional Repositories, Scholarly Publishing, Technologies, User Generated Content

The textbook world is getting flat

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Earlier this month I was able, thanks to the organizing efforts of a colleague, to participate in a phone call with Jeff Shelstad, one of the founders of Flat World Knowledge.  I wrote about Flat World some time ago, but I want to take the opportunity (before it fades in my mind) to describe their business in more detail, provide an update about their success and recommend their business model as a genuinely transformative opportunity for higher education.

Flat World Knowledge is essentially a publisher, founded in 2007 and currently focused on the market for “big” textbooks — the ones that cost students an arm and a leg and are issued in a new edition every other year to undercut second-hand resales.  Flat World, in contrast, is publishing their textbooks online, entirely open and free.  The books are licensed under a Creative Commons license.  Like other publishers, Flat World organizes peer-review for the books it publishes and provides copy editing and design services.  So two issues come to mind immediately — how do they make money, and what is in it for faculty who might write or adopt a Flat World textbook.  It is the answers to these questions that really make Flat World such an exciting venture.

First, although students can get free access to their online textbooks (through course-specific URL; more about this in a minute), they also can buy the textbook in several different formats (print, audio and self-print PDF, according to the “How it works” page).  According to Mr. Shelstad, about 50% of students currently opt to purchase a book that has been adopted for their course (at 29.95 for a print-on-demand copy), and Flat World plans to increase that percentage as they add new or improved formats.  Shelstad mentioned formats for hand-held devices, for example, and it seems exciting to me just to know that a textbook publisher is thinking this way.

For faculty who publish textbooks with Flat World, there is an opportunity to earn royalties on every dollar that is spent on their book, as well as the chance to continually update and correct the text.  These authors have a level of continuing control over their work that is unprecedented in the print world.

A unique level of control is also the principal advantage that faculty who adopt a Flat World textbook gain, since they are able to adapt a book for the specific needs of a course they are teaching.  Currently, adopting faculty can move sections of a book around with up / down / delete controls and annotate any portion.   Tools to insert materials and to edit at the word level are in development.  Once a faculty member has adapted and adopted a specific textbook, that version is saved and a course specific URL is created so that students in the class will see exactly the book that has been created, in a collaborative way, for their use.

I was especially interested in how these two different control points — that of the author and that of the adopting instructor — might relate.  I was delighted to hear that the adapted version will be separate from the original, using this system of unique URLs, and that all changes in the adapted texts will be indicated.  This seems to me to be a very sensible way to preserve the integrity of the original authored work while still permitting adaptation for a particular need.

Flat World is showing signs of being a genuinely transformative model for higher education.  They currently have 11 textbooks in their catalog, with 10 more to be added in the coming months.  Even with that relatively modest catalog, there are already over 500 course adoptions and more than 40,000 students using Flat World books.  The staff at Flat World is working on new ways to adapt the books, such as pulling in images, PowerPoint, etc.  It was heartening to hear that one of the reasons roll-out of these features is slow is that Flat World does not want to compromise the high standard they have for design of their books too radically.

Overall this is an exciting model that helps us look forward to the genuinely new ways technology can facilitate classroom and online education.  Just after our phone conversation,  this new announcement came out about Flat World’s partnership with Bookshare that will make textbooks available to people with print disabilities, highlighting yet another possibility for this adaptive technology.

Authors' Rights, Copyright Issues and Legislation, Technologies

Dissing incentives

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This New York Times article about “Legal Battles over E-Book Rights to Older Books” caught my eye both because of a usage I dislike in its title and because of its importance in the continuing discussion of how much incentive copyright really provides for writers and other creators.  The article focuses on a dispute between the family of William Stryon and Random House, his publisher, over who has the right to profit from e-book sales of Styron’s work.

I have to say first that I dislike the reference to “e-book” rights because there is no distinct right to publish an e-book.  There are specific exclusive rights within copyright to publicly perform a work and to prepare a derivative work, both of which are important in allowing the creation and distribution of an e-book based on a published novel.  But “e-book rights” is a misnomer; at best a short-hand reference to a set of the enumerated rights in copyright that are involved in e-books.  In the contract dispute between Random House and Styron’s estate, the issue will be the scope of the assignment of these various exclusive rights, not the simple question of who got the “e-book” right since, as the family points out, e-books were unheard of when Styron published his novels and the profoundly moving “Darkness Visible.”

This brief item explains that the actual issue in this case is what “in book form” means in the publications contracts Styron agreed to.

The larger significance of this issue involves e-book versions of much of the great literature of the 20th century.  The length of copyright protection imposed on this cultural heritage is usually justified as providing an incentive for writers to write, artist to paint and filmmakers to “shoot.”  If, as Random House claims in the Styron case, however, the right to exploit new technologies as they develop is encompassed in the original publication contract, this incentive seems even more tenuous than it would ordinarily.  Even if we assume that Styron was more likely to write because he knew his children and grandchildren could continue to profit from his books than he would have been if copyright term was shorter, Random House’s claim that his original publication contract transferred the right to profit from new forms of distribution seems to reduce that putative incentive.  Presumably the family will have less control over the e-book created by Random House than one for which they contract directly (as they want to do), and it seems quite likely that they will profit less, if at all, from a version sold by Random House.

If copyright is really an author’s right, as publishing intermediaries like to claim when they want Congress to enact  stronger protections, should not the right to decide when and how to exploit new opportunities, not considered at the time of an original transfer, remain with the author or the author’s family?  In short,  publication contracts in copyright should be read narrowly to preserve the incentive for authors and others  to create which is the alleged purpose of the law.

This recent article by Professor Rebecca Tushnet about “Economics of Desire: Fair Use and Marketplace Assumptions” considers the incentive structure of copyright in some detail, based on the recognition that many creators create out of desire, or even compulsion, rather than a direct expectation of the money to be made for them or their heirs.  She argues persuasively that the economic incentives that the copyright monopoly creates “largely bypass[es] a persuasive account of creativity.”  Her conclusion that “Copyright law, and general cultural policy, could do more to direct material rewards to authors if we truly believe that monetary incentives will spur creativity” seems to directly address the Styron e-book dispute.  If we are serious about copyright incentives, she suggests, “we need to keep a close eye on which entities are benefiting material from all these new works.”  This is precisely the case with e-books and the literature of the 20th century; disputes like this raise real questions about how genuine our commitment to copyright as an incentive for creativity really is.

Licensing, Technologies, User Generated Content

The most dangerous place on the Web

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The most dangerous place on the Internet may well be inside that little button that says “I Agree.”  The opportunity to bind oneself to a contract almost unconsciously abounds on the Internet, and the immediacy of the Web encourages click-through agreements that are almost never read and, if they are, impossible to understand.

The Electronic Frontier Foundation has provided a nice primer on on-line agreements in this document called “The Clicks the Bind: Ways Users “Agree to Online Terms of Service.”  This is a long blog post or, in PDF, a three page document that should be read by everyone who uses the Internet.  It helpfully distinguishes major types of online agreements and the relative likelihood that the different forms result in binding contracts.  The document, by EFF’s Ed Bayley makes two programmatic assertions, both of which seem unarguable.

First, users should have to take an affirmative step to agree to terms of service.  Put another way, terms of service that are there if you want to look at them but do not require even that thoughtless click should not be enforceable.

Second, Bayley asserts that terms of service from online service providers should be publicly available, not just presented as a pop-up as one enters the site for the first time.  This would allow public discussion, which is important if people are to get past the habit of clicking without reflection on “I Accept” and come to some awareness of what they are agreeing to.  Even when TOS are publicly available, they are not very easy to understand.  Over a year ago, I printed out the TOS for Flickr just as an example and found that, at that time, they ran to over 12 pages of printed legelese.  A repeat of that experiment shows that they are shorter now — “only” 10 pages.  And to Flickr’s credit, they are available to anyone who wants to see in advance what they are getting into.

Bayley’s short essay is vital information, and the suggestions he makes seem like minimum steps that must be observed if courts are really going to hold individual users to the extensive and complex clauses found in these online terms of service.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use

What wasn’t decided

Sometimes what a court does not decide can be more important than the actual ruling that the court makes.  One newsworthy example of this possibility is the extraordinary step taken by the judge in the file-sharing case of Joel Tenenbaum.  As this opinion piece from Ars Technica reports, Judge Nancy Gertner has finalized the decision holding Mr. Tenenbaum liable for copyright infringement, but has also detailed how she might have ruled if a limited fair use defense had been raised.  To say that her 35-page memo is extraordinary is an understatement; in it she suggests that the defense team’s error in raising a sweeping fair use claim rather than one narrowly tailored to specific circumstances was costly indeed.

Judge Gertner is no fan of copyright laws that hold people liable for accidental infringement, which happens fairly often with file-sharing systems (although not, apparently, in the Tenenbaum case) or hold teenagers liable for hundreds of thousands of dollars over a handful of songs.  In her memo she invites Congress to reconsider some of the draconian provisions of our current copyright statute and also suggests that she might have found some file-sharing, in select circumstances, to be fair use.  But that was not the issue put before her or decided in the case.

An even more significant decision for higher education — or really a lack of a decision — is found in a case from late October in the Southern District of New York involving online solution manuals for copyrighted textbooks.  In Pearson Education & Cengage Learning v. Nugroho Judge Deborah Batts (who I criticized earlier in the year over her Salinger ruling) found copyright infringement in the defendant’s online sale of solution manuals for plaintiffs’ textbooks.  Apparently the solution manuals were identical to ones sold by the textbook publishers themselves, although Mr. Nugroho claims he did not realize this, so the decisions seems to me to be correct for this situation.  There is a nice description of the case here. But, in keeping with my theme, let’s look at what was not decided.

First, this ruling involved the recognition that the solution manuals were derivative works of the textbooks.  This finding was necessary because the copyright in the solution manuals had never been registered, so the court was barred from considing them as independently protected works. The opinion focus on the fact that the solution manuals “have no independent viability” from the textbooks (which were registered), and are therefore considered infringing derivative works.  What is not clear is where the line is after which something is no longer a derivative works, and the “independent viability” test does not seem to be a precise enough answer.  If I take a single problem from a textbook and work out the solution, but do not copy any original expression, that solution may not have independent viability, but I doubt that by itself it is a derivative work.  Indeed, this kind of thing happens all the time when instructors or their teaching assistants provide sample solutions through various course websites and other tools.  Surely not all of these are infringing derivative works.  Let me repeat that I have no quarrel with the decision as it stands, but wonder where its boundaries are, especially in regard to common educational practices.

Another issue that was not decided in this case is when the kind of derivative solutions that I have just described might be fair use.  Fair use was apparently not raised, and it certainly is not considered in the ruling.  Given the fact that entire solution manuals identical to those produced by the companies were being sold without authorization, I doubt a fair use defense would have been appropriate.  But there are certainly situations where the creation of answer sets for problems posed in a textbook could be fair use, perhaps where a small amount of protected expression is copied or the problem represents largely unprotected facts, and the solution sets are available without charge to a small group of students.  Whether this is allowable or not is a fairly common question, especially from teaching assistants, and the important point from the Pearson case is to note that this issue has not been decided.

Copyright Issues and Legislation, international IP

ACTA up

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ACTA, short for the Anti-Counterfeiting Trade Agreement, is a multi-party trade agreement being negotiated in secret by the U.S., the states of the European Union and several other nations.  While its name suggests a laudable purpose, the prevention of international trade in counterfeit goods, the secrecy of the negotiations raise cause for concern.  As details leak out about the contents of the proposed treaty, as such details always do, it becomes clear that much more is happening here than one might suppose.  Indeed, these negotiations are being used to undermine the legal system of copyright in place internationally in favor of a one-way system that benefits special interests at the expense (literally) of consumers.  The more we learn, the clearer becomes the need for consumer groups and others interested in fair copyright to “ACTA up” in opposition to these negotiations.

Not everyone is happy with the secrecy of the ACTA negotiations.  This news report tells of a letter written by two US Senators to the US Trade Representative, asking that the text of the proposed treaty be made public.  They cite privacy concerns, issues involving individual civil rights (such as the right to be free from warrant-less searches and seizures) and fundamental changes to the balance struck by international copyright laws.  One major privacy concern is the possibility of border searches, where customs officials would be authorized to look for and seize allegedly infringing goods, even on laptops carried through airports or across borders.

So what else is in ACTA that has Senators Sanders and Brown so incensed?  There is a nice, short summary of the key provisions of the US proposal here on the blog of Canadian law professor Michael Geist.  But I want to focus on a slightly longer report written about ACTA for the Library Copyright Alliance by Janice Pilch of the University of Illinois.  This Issue Brief nicely explains the context and key provisions being discussed in the ACTA negotiations, and it focuses on the specific concerns of libraries.

Two things particularly struck me in Pilch’s analysis of ACTA.  The first is the harm it could do to technological innovation.  As is often the case, the US Trade Representative apparently sees himself as an agent for the major entertainment industries, and is willing to sacrifice other, developing business models to the protection of their interests.  This is clear in the concern that ACTA will unfairly impose liability for copyright infringement on Internet Service Providers whenever their networks are used to transmit infringing content.  ACTA seems to carry a “three strikes” provision that would require disconnection of Internet users whenever there have been three accusations (not proof) of infringement.  The result would, at least, be a loss of business for ISP and a real fear of developing new communication technologies because of the threat of liability for how those technologies are used.  Worse, some suggested provisions would encourage ISPs to monitor user content and report suspected infringement.  As Pilch notes, the Library Copyright Alliance is asking that ACTA focus on commercial counterfeiting and not penalize particular technologies for the way they are sometimes used.

To me an even bigger concern is that ACTA represents a forum shift in international copyright regulation.  When I was in law school, we spent a lot of time discussing how our procedural rules were intended to prevent “forum shopping” — seeking a sympathetic court even if the area in which that court sat had little connection to the issue involved.  Forum shopping is often costly and unfair, and US jurisdictional rules discourage it.  But in a similar way, the US Trade Representative and the legacy content companies have been forum shopping internationally for a while now.  Pilch recounts the way industrialized nations moved toward international forums like the World Intellectual Property Organization in order to force stronger IP rules on developing nations and are now moving to these multi-party agreements because of the perception that those nations have gained too much influence at  WIPO.  The goal seems to be to find a way to continue to treat developing nations as markets rather than partners, whose own need for technological innovation and infrastructure development are subordinated to the desire to protect the sales of traditional goods produced by the industrial nations.  Such forum shopping also undermines the democratic process, since it uses trade agreements, which do not require legislative approval, to enforce rules the legislature is unwilling to enact into law.

ACTA raises a lot of serious concerns for consumers, fair copyright advocates and those concerned about international development.  Like many other similar attempts to make law behind closed doors, this is an effort where sunlight and transparency is badly needed.