back to article Publishing giants sue open textbook startup over layout

A copyright lawsuit has pitted three of the four big American textbook publishers against a web startup in a dispute over the layout of textbooks. Facts may not be copyrighted, but how they are laid out is, contends the joint complaint that publishers Pearson, Cengage Learning, and Macmillan Higher Education filed last month in …

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Ru
Facepalm

"Wikipedia-style textbooks"

If that little descriptive phrase didn't ring enough warning bells, what will?

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g e
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Hahaha

Your right-angled triangle has a vertex with a 90-degree inner angle. We have copyright on presenting a right-angled triangle in such a manner.

Likewise your squares and rectangles are presented with four 90-degree corners.

(lucky for them the corners weren't rounded I guess)

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Anonymous Coward

How it is better...

I think you will find those rectangles are owned by Apple!

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Re: Hahaha

"Your right-angled triangle has a vertex with a 90-degree inner angle. We have copyright on presenting a right-angled triangle in such a manner."

Actually, it's more like "You presented a photograph of Chartres Cathedral that looks suspiciously identical to the one in our book, and the caption on the photo happens by some weird coincidence to be word-for-word identical to ours, and by some even greater coincidence it falls on the same page as the one in our textbook, with the same copy surrounding it" from what I gather.

Which, if it's true, is a whole 'nother kettle of fish.

If it's true. That's a big "if;" I think a person might reasonably assume it's a bad idea to take any large publishing company's word for it, all things considered.

If it is what you describe, then fsck the publishing company. If it's what the publishing company, then the new textbook people deserve to get smacked down; they should have known better.

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WTF?

Am I correct in thinking they are being sued because of the position of the page numbers and how figures are annotated...?

if so, where is the *I don't want to live on this planet anymore* meme when its needed?

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The issue AFAIK is that in a substantive work like a textbook containing hundreds of pages & figures, the chosen layout constitutes a sufficiently complex design that it can be protected under copyright.

I do wonder whether prior art is an acceptable defence in these sorts of cases, or whether there's any such thing as a stock or generic layout against which such suits cannot be taken.

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Well, I doubt that you can copyright the choice of font size, style, page size or margin widths.

Given that, how much of the pagination and layout is the result of complex design (on the part of the authors) and how much is simply the result of the authoring software doing its job automatically?

If someone paraphrases the textbook, taking care to keep the paragraphs the same size, they will get the same pagination and layout.

Clearly doing something like that is, at some level, taking advantage of someone else's work (unfairly IMHO), but claiming copyright on something which was created automatically by some piece of software isn't the way to go.

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Well, I doubt that you can copyright the choice of font size, style, page size or margin widths.

Actually, that's the bit you can copyright to a certain extent...

Say you were to write a delightful account of your encounter with a hedgehog one evening and illustrate it using images from the public domain (or iStock, whatever). Now say it miraculously got published and you were receiving royalties for it, you might be a bit peeved if someone else lifted your work; using the same images, in the same places, identifying the same circumstances, using the same font, at the same size with same kerning and line height, each page having the same margins and layout - essentially it's your work - but they've changed the name of the Hedgehog to Geoff and paraphrased it a bit.

They release the first page for free as a PDF with the intent to, later on, charge slightly less than you for a printed version. It's a factual account of an encounter with a hedgehog and you can't copyright the facts; but the wording, illustrations and style is a different matter.

Here though, we're talking about text books rather than a simple encounter with a hedgehog, so there's all the background research and fact-checking that needs to done before the thing can even be published - and someone else is bypassing all that by basically lifting your work and undercutting you.

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Anonymous Coward

If you have a 400 page book with the same headings on the same pages then it's because you made it happen, not because of automatic pagination code. I agree that it's not copyright in the normal sense, I think "trade dress" is more the way to go.

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FAIL

That's not quite the same thing...

I think a closer analogy here would be that they have developed a system that, when you input the name of a hedgehog related story, searches through many open source/freely available hedgehog stories and compiles a complete story from these to match the approximate size and layout of your story.

We don't know if they are copying the fonts etc, but at the moment the lawsuit seems to be based on 'we had a paragraph of 7 lines long on page 53 and so did they! Also they seem to show some similar pictures. The audacity!'

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Anonymous Coward

but the suit isn't about content is it.

IT has nothing to do with using the same images or words (which would be a valid suit) - it's only about look.

If you designed a web-site that looked like wordpress or blogspot do you think they should be able to sue you? If yes, then where does this stop - can any website sue another because it looks the same? Can you sue if somebody put an advert in the same place as on your website?

Even if a web-site does look the same it's not like Apple vs Samsung - people don't say 'I shall go to this website because it looks like the other one' - they go there for content, and they can go to both. People can read books from the published or the start-up company.

Next we will have people copyrighting colour combinations.

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Anonymous Coward

Re: but the suit isn't about content is it.

Let's be realistic here: This suit is about companies that charge a ludicrous amount for textbooks trying to put a viable and free alternative out of business with whatever flimsy excuse they can. Given the profit margins involved in text book sales, I'd imagine they have plenty of cash to pay off the judge.

No one has ever been granted a copyright on a layout. That would be absurd, even moreso than Apple's ludicrous claim that they own rounded corners.

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Bronze badge

No one has ever been granted a copyright on a layout.

I don't know if that's true or not but I wouldn't be confident in saying it's not possible - I guess this case will give a definitive answer if it goes to court.

It probably all comes down to whether 'layout' creates an original / artistic work which can be granted copyright protection. I also doubt there's any simple answer to whether any particular layout could be copyright protected or not, but once a layout goes from 'industry standard' to something more unique to a particular publisher it becomes more likely it could be.

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Re: but the suit isn't about content is it.

"No one has ever been granted a copyright on a layout."

There are a lot of graphic designers out there who will be more than happy to show you how spectacularly wrong you are.

This lawsuit isn't about just the layout anyway: it's about flagrant plagiarism. How would you feel if you studied bloody hard at university, spent months nailing your thesis to get a First, only to discover that your housemate did bugger all except wait for you to finish, before stealing a copy of your thesis and simply rewriting it in his own words (while retaining all the references, etc.) to get the same pass grade?

You did all the work, he passed-off his own plagiarism of your work as his own and got the same benefits as you, while only putting in about a week's work.

THAT is what these publishers are complaining about. Textbooks are expensive because (a) the market for them is small—you're not going to get as rich as Rowling by writing textbooks—and (b) you can't just make shit up: you have to research it all first, double-check your facts and so on. Then you have the unbounded joy of writing it all up in a format students will be able to understand.

That costs money. Textbook publishers rely heavily on reputation for the quality and accuracy of their products. Damage that reputation and all their sales may suffer. If a single major university switches its allegiance to another publisher, that's anywhere up to 20K in sales per year gone.

What this startup is doing is freeloading off the work of these publishers—much as Android has effectively avoided the need to spend millions of dollars on R&D because all they did was slavishly copy Apple's iOS. (And the less said about the GNU / Linux community's similar tendency to let the commercial companies do all the R&D before simply ripping them off, the better.)

R&D costs money. Fact-checking costs money. And you can't publish print textbooks without getting them properly sub-edited and reviewed for errors either. Whereas Joanna K. Rowling's publishers could simply take her tall tales and have them stamped onto leaves of pulped tree for a hell of a lot less money. A few typos in a novel are a lot less problematic than a few typos in an key formula in a physics textbook.

Cheap textbooks are possible. I've crunched the numbers. But what this startup is doing is flat-out wrong. Paraphrasing an existing textbook right down to its layout and pagination—the easier to allow your free version to be used as a 'slot-in' replacement for an established title where teachers already have key page numbers written down—is just cheap, nasty and unethical. It may or may not be illegal too, but that's what this court case will decide. Personally, I hope the startup loses. I can appreciate that textbooks can be expensive, but this is not the answer.

I'm planning to write and self-publish my own textbook and, yes, it'll be a lot cheaper than anything Cengage or Thomson are printing, but that's because my overheads are a lot lower: I'm writing about a subject I already know plenty about and I have friends I can count on to help me with the proofreading and fact-checking stages. (Also, it's going to be designed explicitly for the Apple iBook format initially. No trees to pulp, and I can send out updates if a typo or error is spotted after publication. I'll do an ePUB 3 version as soon as someone comes up with an editor for that format that doesn't suck.)

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Silver badge

Haiving once worked in that industry,

you are dead wrong - the choices of fonts, styles, and layouts are some of the most protected aspects of graphic design, precisely because there are so many options available that it becomes obvious when a style has been copied.

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@the downvoter of Robert Long 1

He's actually spot on about this. If EVERY page has the EXACT same breaks, it IS a copy pure and simple. One of the tasks I regularly engaged in when I did typesetting work was the careful editing of text and/or kerning or leading in order to cause the paragraph and page breaks to fall in specific locations to reduce page counts/empty space in the final piece. The two line flier onto the first column of the next otherwise non-existent page was a particular bugaboo.

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Re: but the suit isn't about content is it.

If you write and sell software to create a blog, and you can't make it look different than wordpress or blogspot, you'd damn well better bet if I'm on the jury when they sue your ass, I'll be adding my boot imprint to it right alongside theirs.

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Re: No one has ever been granted a copyright on a layout.

Actually, people have. Westlaw publishes the text of US law in a series of bound books. Since it's the standard for law books, most court briefs and so on will reference laws by the volume and page number in Westlaw books.

The text of the law can't be copyrighted. But the volume and page numbers can. Which is how Westlaw maintained a near-monopoly on legal texts for decades.

I personally consider that to be pretty ridiculous, but it's established nonetheless.

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Re: but the suit isn't about content is it.

> IT has nothing to do with using the same images or words (which would be a valid suit) - it's

> only about look.

The specific example cited in the article is expressly about "using the same images [and] words":

"In one particular, a psychology textbook from Macmillan used a photograph of Johann Brahms to illustrate a section on sleep disorders – citing his sleep apnoea. The Boundless-equivalent psychology textbook also illustrates its sleep disorder section with a photograph of Brahms mentioning that he suffered from sleep apnoea."

That's certainly not an issue of "only ... look". It may be that the Boundless text does not use the same image of Brahms, and the same caption verbatim; but what copyright protects - in the US, per USC 17 - is both the expression of an idea (a "work") and derivative expressions ("derivative works"). Derivative works include condensations, editorial revisions, dramatizations, and "any other form in which a work may be recast, transformed, or adapted" (17 USC 101). It would hardly be a stretch, IMO, for the courts to find that Boundless' highly-constrained paragraph-by-paragraph-paraphrase method is a "transformation". For one thing, it'd be possible to automate using existing NLP algorithms, which certainly makes it suspect.

Paraphrase already exists in something of a liminal state between new expression and fair use, and the latter is limited by the amount of original work used and its effect on the market - and Boundless clearly falls foul of both tests. That might well encourage the court to look unfavorably on their process.

USC 17 also covers design rights, by the way, and I suspect it'd be possible to argue that the Brahms example, and even pagination, are covered by 17 USC 1301.

Personally, I think Boundless, if they are indeed engaged in what the suit describes (and that seems plausible), are at least unethical and quite possibly violating the law. They're also undermining the hard work of people who are writing new open-source textbooks.

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Should be interesting to see how this shakes out.

Rising usage of both digital reading platforms and distribution mechanisms show textbook publishers as being somewhat behind the curve - this has long been an issue, along with the price of new textbooks for students.

I suspect there's merit to the idea that both parties are at least a bit in the wrong here. Existing publishers are clearly fondly attached to the idea of the established pricing for academic texts and are unlikely to respond well to any initiative that forces them to compete in ways they've previously been able to avoid.

That being said, it's one thing to say "the law says that facts can't be copyrighted" and an entirely different one to basically take your competitor's product, change it what you think to be *just enough* to file off the serial numbers and give it away for free. Especially if you boast that this is what you're doing. I wouldn't like to be the judge who has to point out where the line gets drawn, but I'm fairly sure that it's going to be hard to defend a set of actions whose intent has been openly stated as converting a copyrighted document into a freely-redistributable document. (Though it might have worked better in their defence if they'd gifted it to the public domain, or at least published it as a CC work...)

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Facepalm

"In the post, the startup described the textbook industry as "ripe for disruption", comparing it to the music industry 10 years ago."

What, happy to sue at the first sign of any threat to their business model?

I doubt this is particularly unexpected by boundless, or they didn't follow the comparison far enough.

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What they're doing is what students have been doing for time immemorial - cribbing other peoples' stuff and trying to change it sufficiently so that you get away with it.

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Anonymous Coward

Plumbing the very depths of laziness

In one instance I cribbed from a textbook written by the teacher who had set, and would mark, the assignment. I got a barely acceptable mark as nothing I'd 'written' was wrong.

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Anonymous Coward

But isn't this what monetising the Internet is all about...

... Ripping off other peoples efforts, packaging them up and then selling the business as a going concern for a huge amount of dosh?

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Anonymous Coward

Look and Feel all over again

How many years ago was that?

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Brahms died in 1897

Any photographs of him are out of copyright.

If page numbers are all that they've got then I say phooey. You can tell students to look up content in an e-book without page numbering, as long as they can spell the name of it.

What you don't get necessarily by cloning is a textbook that is particularly good. That needs a good writer. But I've seen and had to work with some turkeys, so people who work cheap but work hard may do a better job. In fact, I think a learner sometimes is the best person to write a textbook, covering the parts more carefully that they themselves found hard to understand. But the catch is that they may still not understand it.

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Re: Brahms died in 1897

Just a minor point about the photographic copyright.

Copyright in the UK, (and I belvie the US is similar) expires 70 years after the death of the photographer, not the subject.

So if the photograph was taken by a photographer in their mid twenties in 1897, who went on to live to be 80+ and died in the 1950s, the copyright could well still be held by their descendents for another 10 years at least.

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Anonymous Coward

@damian fell

While you're absolutely right, the law doesn't seem to be an issue for Big Publishing, who just know the rules don't apply at their rarified heights. In the UK they're as likely simply to steal the image and hope they don't get caught short, give the big finger to the photographer if they do, try to argue the image is public domain just because it happened to be on a web page, and finally offer a photo credit (which they'll misspell) in the 34th reprint, upcoming in 2025 - but no money naturally. All while denying liability, delivered in the best "brand protection" tones of a delicately scented PR drone who cut his teeth in the business pulling the wings off flies as a child, while claiming to the child psychologist that it was all for their own good.

Copyright only has any worthwhile meaning for those with enough money to enforce it, especially in the UK.

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Re: Brahms died in 1897

Even if the picture itself if out of copyright, if layout matches too much, and the text matches too much, and particularly if you left in the same grammatical and typographic errors as are in the original, it's IP theft.

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Interesting UK law.

OK, so it's not directly applicable to this case (as it's not US law) but here in the UK we have a law that directly encodes a principle that deals with this sort of thing. I think it's called "Typographical arrangements".

"1. In a typical publication, copyright subsists both in the content of a work and also in the typographical arrangement and design elements of the work. Typographical arrangement covers the style, composition, layout and general appearance of a page of a published work." [Her Mayesty's Stationery Office]

This notion of "arrangement" even extends to the selection and numbering of songs or poems in a collection, and the selection of specific verses within those poems or songs. If I spend a lot of time collecting, editing and typesetting a bunch of 18th centre verses, then the law protects me from someone walking up, copying the (public domain) contents and undercutting me -- this is only right.

I'm not a fan of the exploitative nature of the textbook market, but the principles behind this suit are sound.

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Pint

I like that, Tom -

«... and particularly if you left in the same grammatical and typographic errors as are in the original, it's IP theft» - «intellectual property» in grammatical and typographical errors ! That neatly sums up the whole IP debate....

Henri

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The freetards are out in force today.

Doesn't make any difference how expensive textbooks are. If you can't make them cheaper on the same level playing field you've got nothing to offer anyone. Making them cheaper by ripping off existing textbooks is not actually making them cheaper, it's just deferring most of your cost to other people. Eventually those people will go out of business and who are you going to copy then? This business is a machine for putting the textbook industry out of business, while making a short-term killing. And people are fine with this? Thank God it's illegal.

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Anonymous Coward

I could not..

..disagree more.

What this does is force the publishing industry to update outmoded and costly operations. The perfect example is Wikipedia's effect on Encylopedia Brittanica. The paper version is going - so what - it was overly expensive and went out date too quickly anyway. They have now been forced to be on-line only and provide something worth paying for. It's a wake-up call, and a bloody good one too.

Oh, and don't forget that the VHS will kill the movie industry too...lol

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Anonymous Coward

FFS

I understand that the suit is because they 'may try to monetise the product later' but at the moment they are not. The dispute is over pagination and layout FFS - how much money are the plaintiffs losing because of page layout of a different book? Are people really saying 'Ooh this is the same layout as that other book - therefore I won't buy anything from the other publisher'. Christ is this for real?

Next we will have somebody suing a web site because their 'HTML source' layout (e.g. indents for tags) looks the same as on their website. Were not talking about content here guys...just formatting and layout of text and images.

If this is for real then I hereby copyright the placement of a Company Logo banner at the top of a web page.

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You're missing the point.

The idea is that a university lecturer will give you a bunch of section references to read and revise between classes that are specific to a textbook. By using the same references as a commercial textbook, you get the opportunity to nick their audience, and you're doing it off the back of their work.

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Anonymous Coward

Idiots

"Defendant boasts that they copy the precise selection, structure, organisation and depth of coverage of Plaintiffs' textbooks and then map-in substitute text, right down to duplicating Plaintiffs' pagination."

I have to say that if this is true then they are just taking the piss and deserve everything they get. They're actually trying to "pass off" and saying so.

If this is true.

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Re: Idiots

This seems to be the bit everyone else is missing.

The hardest part of writing a text book is working out an effective way to split up a subject into sensible chapters, how to split those chapters into sensible and well ordered subsections and working out what details to include and exclude and where diagrams and photos are appropriate an useful. The decisions of how to do this organisation is much more a creative and aesthetic decision than a purely technical process.

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Silver badge

I can both defend and attack boundless. What they're doing is the same as everyone else has done. These texts didn't make up the facts. They took them from another text, which took it from another text, and each one paraphrased, fleshed out, removed useless bits so on so forth. In that sense they have no case, but that isn't the case they're arguing.

From what I can tell they're arguing about the layout, annotations, depth of information, and basically the style of it.

Which to me is still stupid. I mean, annotations have existed since time immemorial. Of course they're covering the same depth of knowledge, as are 90% of other books on the same subject, because you all took from the same sources.

The crux of the issue isn't the books content its the pirce. If they were selling the books for a similar price as the publishers this would never have come up. Instead they're giving them away, which means students won't be buying the expensive books, which cuts into the profit margin and that's what this is all about.

I'm going to say I side with Boundless here, I'm 90% sure the judge will side with neither and instead push boundless to change the format but keep the content, and prevent them selling any further printed copies of the current texts.

The companies are all suing in force not to defend their IP but to destroy a startup who is undercutting them.

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Childcatcher

re: The companies are all suing in force

It's called a cartel and it's supposed to be illegal, but of course because this is a 'copyright' issue then the modus operandi here can basically be ignored.

Copyright and patents... the 'think-of-the-children' cry for corporations.

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Silver badge
FAIL

When I was in the US (exchange year at uni) I noticed that the correct answer was always the one phrased identically to the (professor-written) textbook, without reference to the logic of the alternatives. Essentially text-books were a scam to generate cash first and a learning tool second.

I would agree that boundless are ripping off the design work. However I find sympathy hard to feel given the actions of the plaintiffs and many of the authors.

There is also the small issue of the futility of trying to protect copyright among students. Like the music industry of ten years ago, they are worrying about the wrong thing.

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Anonymous Coward

On-line dictionaries next then...

If this suit is successful (which I sincerely hope it isn't) I will expect some dictionary publishers to start pursuing free on-line dictionaries...after all I'm pretty sure they are organised ans structured in the same way as the paper ones. How dare they copy the way paper dictionaries are laid-out.

PS. I would like to copyright the 'paragraph' and the colour blue in combination.

Lol.

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Re: On-line dictionaries next then...

Dictionary publishers are just as subject to plagarism laws as fiction writers. It's a bit trickier since by definition they are going to be more similar, but certainly example sentences, if provided, should be different from one work to the next. Also you will find differences in font selection, spacing, layouts, and possibly even word history.

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Anonymous Coward

Why are media companies such w*****s

Could you image what would happen is car companies acted in the same way (or if Apple made cars! - shudder).

Mega-car corp -

"I'm sorry but the layout of your car looks remarkably like ours - the steering wheel in-front of the drivers seat, the gear stick location, order of the brake, clutch, accelerator, location of windows, mirrors, lights, number of wheels...".

This has nothing to do with 'layout' it is just a way to kill-off somebody who is going to cause their profits to drop.

Thank fuck media companies don't make cars (or TV's, fridges, freezers, toasters, kettles, bicycles, ovens/hobs, light-bulbs, bricks, carpets, food, bathroom appliances, beds...) - imagine putting up with this shit for any of those items.

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Anonymous Coward

ebook prices are ridiculously high, ebooks are already on p2p in volume!

This law suit is a symptom of obsolete corporatist thinking.

All copyright and other 'IP' law has been rendered obsolete by the internet, especially by P2P technology; the publishers and authors need to get real and accept this, then figure out how to make money without this obsolete, ridiculous, corporatist 'rights' interference in the market.

The state is being cheeky and stupid taxing ebooks near to or above physical book prices, they need to stop this or doom the authors and publishers to accelerating plummeting income, due to P2P alternatives, thus less total tax income.

Seriously, you can build a big library in under a day using fibre broadband, then it's the time consuming task of indexing them and adding/correcting all the meta-data e.g. using Calibre.

I note that a lot of commercial ebook providers do an inconsistent and inadequate job of putting a rich set of attributes and tags on ebook files; this makes them even less attractive to buy, given it requires significant time to to add/correct them all, so that a library search finds all relevant books.

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The probable comparison will be with TV gameshows or theatre productions where there is copyright on the 'format' of the show even if the precise content is different. Copyright on maps may also have a similar precedence. However, the text book manufacturers may be shooting themselves in the foot. There is no dispute about the content and changing formating or rearranging the order of the content is relatively easy and could be done via crowd-sourced editors quite quickly. The law suit draws publicity, and attracts the interest of crisis-stretched educational departments. The publishers could easily win the battle only to find themselves opening a war they'll never win.

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ACZ
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Here's the lawsuit

This is the lawsuit:

http://s3.documentcloud.org/documents/332082/lawsuit-publishers-vs-boundless.pdf

IMHO, if Boundless have been copying the selection and arrangement of information that is presented in the books, let alone the pagination etc. so that the Boundless books can act as a direct replacement for course texts (so that e.g. references in course notes to content on a particular page, paragraph or section number of a book is reference to the same content in the Boundless book) then they've got a real problem.

That selection and arrangement of information should have lots of copyright in it.

Ultimately, if I've spent a large amount of time and effort researching a subject and writing a book which gives readers a very carefully tailored learning experience then I will have lots of copyright in that book, which is the right thing - if I've done a good job and it's a good book then I will be rewarded for my work with income from sales, encouraging me to do more of the same.

However, if somebody else comes along and copies the book, particularly the structure and content, to deliver the same learning experience (even if they paraphrase things) then they are basically trying to steal my work. If a court does not find them to be infringing my copyright then there is no incentive for me (the skilled author) or my editor (there will also be copyright in the editorial input) to write any more books, and at that point there will be no commercial reward for authoring textbooks, so why should anybody bother?

Alternatively, if they want to independently author their own books (and the critical thing is that they do it independently of my books) then that's absolutely fine - they're not trying to copy my work and it's a bit of competition for me - good old capitalism - and should encourage me to improve the content/price/usability/available formats/distribution channels etc. Perhaps they could try some kind of an open collaborative online system where anybody and everybody can share their knowledge and freely contribute, discuss, and edit the material. Hmm...

Should be interesting...

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Re: Here's the lawsuit

> Alternatively, if they want to independently author their own books (and the critical thing is that

> they do it independently of my books) then that's absolutely fine - they're not trying to copy my

> work and it's a bit of competition for me - good old capitalism - and should encourage me to

> improve the content/price/usability/available formats/distribution channels etc. Perhaps they

> could try some kind of an open collaborative online system where anybody and everybody can

> share their knowledge and freely contribute, discuss, and edit the material.

This is being done, by academics who are volunteering their efforts and raising funds from the usual sources (university general funds, endowments, granting organizations, etc). See for example opentextbook.org, openaccesstextbooks.org, and http://writing.colostate.edu/textbooks/.

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