Boundless Learning, a Boston-based start-up (“Boundless”), has been sued by textbook publishers for copyright infringement in the important United States District Court for the Southern District of New York. The Boundless educational content is intended to be Open Educational Resources (“OER”) material publicly provided without intellectual property restrictions. This would allow students, teachers, and anyone else to freely use it in a manner similar to open source software. The primary allegation is that Boundless violated the Copyright Act by creating, advertising and distributing free “replacement copies” of several of the publishers’ most widely used collegiate textbooks.

Copyright protection expressly does not cover ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries, regardless of the form in which they are described, explained, illustrated, or embodied. Also, facts are not copyrightable. This is essentially because, for societal progress and intellectual discourse to occur, everyone needs to be able to freely discuss ideas, concepts, etc. Of course, textbooks consist largely of these elements that do not attain copyright protection.

Copyright infringement can be shown by evidence of actual word-by-word copying (which the publishers do not claim happened), or by evidence that (a) the defendant had access to the copyrighted work and (b) the allegedly infringing work is substantially similar to the original. When determining substantial similarity, the court generally applies an “ordinary observer test” that considers whether the average reader would overlook any differences in the works and conclude that one was copied from the other. Where a work contains both copyright-protected and unprotected materials, as do traditional textbooks, the infringement inquiry does not consider the unprotected elements and compares only the original creative elements.

The Publishers, focusing on the access and similarity test, allege that Boundless has created shadow or alternative works that infringe these original creative elements of their textbooks. They assert that the Boundless versions mirror the organization, content selection, presentation and layout of the publishers’ texts. In contrast to the factual substance of the books, these are copyright-protected elements. Though the Boundless versions may use different words to convey the same themes, Boundless itself had earlier marketed its materials as free alternatives that were similar enough to the popular textbooks to include all the important elements of the originals, down to equivalent graphs and photos.

Are the protected elements of the publishers’ works sufficiently creative and unique to legally prevent Boundless from distributing free versions that merely paraphrase the original textbooks? The publishers claim that, over time and with great effort, they have identified, assembled, arranged, and presented the contents in the most teaching-effective way. Contrarily, Boundless will argue that any similarities between the information and structure of the respective textbooks merely reflect the common understanding of the order and importance of these well-studied topics.

This case, in combination with the recent Georgia State University case (discussed in the last post here), may have tremendous impact on the textbook industry and those businesses with similar copyright concerns.

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