Innovative Open Textbook Company Fights Back Against Publishers' Copyright Infringement Lawsuit
from the what-infringement? dept
Last year, we wrote about how a bunch of the largest textbook publishing firms had teamed up to sue an innovative open textbook startup called Boundless for copyright infringement. Was Boundless reproducing their books? Nope. Instead it had created alternative textbooks from various open sources — but those texts mirrored the basic structure of other textbooks. It was this copying of “selection, structure, organization and depth of coverage… right down to duplicating Plaintiff’s pagination” that the textbook publishers went after. Not the content. Yes, they’re pissed off that Boundless cleverly sought to compete in the marketplace by making sure its textbooks were good competitors and easier to substitute in — but without copying any of the actual content.
It’s been nearly a year, but Boundless has filed its counterclaims, denying the various charges, and insisting that its works have never infringed, that the textbook publishers are claiming copyright over “non-copyrightable material” and that even if there were infringement, they are protected by fair use. They also claim that the lawsuit is a form of copyright misuse and shows the publishers’ “abuse of the copyright monopoly.” Should make for an interesting case.
At the same time, Boundless is also seeking a declaratory judgment on its new offerings. Apparently, the company changed its offerings substantially over the last year, and while the case is still over what those earlier offerings looked like (which Boundless believes did not infringe), it’s seeking a clear statement that its newer offerings won’t get the company sued as well. Boundless’ lawyer sent the publishers a letter last month, asking them to make it clear that the lawsuit was just over the older versions and that there were no issues with the new version, but the publishers have refused, saying that the results of the trial “will inform… current and future business practices.” In other words, let’s see what happens with this case, and then we’ll decide if we can sue over more stuff.
We recently had a lively discussion in the comments on a recent post about the upcoming Supreme Court ruling in the Kirtsaeng case, which is somewhat relevant. The Kirstaeng case, of course, involves first sale rights, and whether or not you’ll be able to resell what you bought legally abroad. A defender of taking away first sale rights (i.e., upholding the lower court ruling) argued that if the Supreme Court allows the first sale doctrine to apply to textbooks bought abroad, it will mean that textbook providers will jack up their prices abroad, rather than offer them cheaply, and thus poor students in third world countries will never be able to afford an education.
As we pointed out, this is hogwash and ignores that markets are dynamic. If the big expensive publishers decide to drop out of such markets, it seems pretty clear that there will be others who will quickly step in — and innovative companies like Boundless were exactly what we were thinking about. They’re not infringing on the works of the big publishers. They’re providing much-needed competition against an oligopoly that has worked hard at keeping prices ridiculously high for educational resources. It’s a market ripe for disruption, and it’s silly (though not unexpected) that publishers are seeking to abuse copyright law to stamp out that disruption, rather than learning to innovate themselves.