Seeking a boundary

Is it just me, or do there seem to be a lot of lawsuits filed by publishers in the higher education space recently?  It is increasingly obvious that the disruption caused by the digital environment has led publishers to embrace litigation as a strategy for protecting their business models, and that that strategy cannot be good for the overall well-being of higher ed.

The latest such lawsuit, filed on March 16 in the Southern District of New York, comes from three major textbook publishers – Pearson Education, Cengage Learning, and MacMillian Higher Education – and targets a new Internet-based business called Boundless Learning that purports, according to the complaint, to create textbooks, using open educational resources, that parallel and can replace the high-priced textbooks that each of these publishers offer.  The sum of the complaint is that Boundless copies the selection, arrangement and organization of their textbooks much too closely and so constitutes copyright infringement.

One should never form conclusions about a lawsuit based only on the complaint, which is inevitably just one side of the story and is always pitched to make the defendant’s behavior look as dastardly as possible.  Nevertheless, it seems safe to conclude that this lawsuit is not as farfetched as some of the ones we have seen recently.  The plaintiffs are really just asking the court to help draw a line that has never been very clear in copyright jurisprudence, the line between idea and expression.  Their description of the situation makes it sound like the placement of that line is obvious, but it probably is not.  What it certainly is, however, is a vital line for higher education to examine and understand.

I occasionally run across an interesting assumption about copyright, which I think is common both in academia and in the wider world.  It is the belief that if you want to reuse an image or a figure without permission, you can simply redraw it and avoid all copyright entanglements.  Like all simple rules in copyright, this one is not true; the standard for infringement is “substantial similarity,” and a redrawn figure or image that is substantially similar to the original could still be found to be infringing.  Far better, I tell those who raise this possibility with me, to use the original figure or picture in a way that supports the assertion of fair use, or to get permission.

From the complaint, it sounds like Boundless Learning is doing something similar to this “redrawing” in hopes of avoiding copyright problems.  The plaintiffs assert that Boundless creates “shadow versions” of their copyrighted textbooks, imitating the arrangement of topics and sub-topics, the depth of coverage for each area, and even the choice of illustrative examples.  I fail to see how a running and a fishing bear illustrate the First and Second Laws of Thermodynamics, but the complaint claims that the Boundless biology text imitates Pearson’s standard text on the subject down to such similar, but not identical, pictures.

So the question is directly posed about where the line between idea and expression is to be fixed.  Is the example of a bear merely an idea, which cannot be protected by copyright, or does it represent a creative and expressive decision by the Pearson authors which is infringed even by a different picture?  To put it another way, how much actual expression must be copied, if any, to infringe on another’s protected expression?  We have seen the “derivative works” right expand a great deal over the years, so that today even characters in a work of fiction are often protected even when the alleged infringing character copies no actual expression from the original (as in the recent Catcher in the Rye sequel case).  Is there a boundary on that right?

Since scholarship is an inevitably cumulative process, in which each new work builds, more or less explicitly, on what has been done before, the boundaries of the derivative works right and the line between protected expression and public domain ideas are very important to understand.  If this case brings us a little more clarity, that would be good.  But the judge will need to be very careful not to develop rules that would inhibit the basic processes of teaching and research.

Finally, I want to point out an oddity I noticed in the complaint that was filed to initiate this case and which will bear watching (no pun intended).  In addition to naming Boundless as a defendant, the complaint lists 10 “Doe” defendants; people who are alleged to be complicit in the claimed infringement but whose names are not known and can only be discovered through court orders.  Naming such John and Jane Does is a common technique in file sharing lawsuits and in some of the more notorious copyright “trolling” cases.  But in this complaint it is quite odd, because we have no real clue what role these people are alleged to have played or why they are being sued.  Are they students who have ordered “shadow” textbooks from Boundless, employees of Boundless, or faculty members who have recommended Boundless to impoverished students? As the case goes forward, we may learn something about how to draw the line between idea and expression, and we may also discover just who the publishers are willing to target in their campaigns to use litigation to protect their markets, if and when the identities of these Doe defendants are revealed.

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