Open source textbook company shifts tactics in fight with publishers
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A company that offered free “alternatives” to three popular college textbooks has rewritten its controversial offerings following a lawsuit by major textbook publishers.
Boston-based Boundless, which has become a darling of the open educational resources movement seen as threatening traditional textbook publishers, offered versions of textbooks that would normally cost scores if not hundreds of dollars. It pitched what it offered as "textbook replacement,” created by essentially reverse engineering popular textbooks. Boundless attracted considerable attention, including an $8 million round of venture capital funding led by Venrock, an investment group started by the Rockefellers. (Boundless currently generates no revenue, its co-founder and CEO, Ariel Diaz, said Thursday.)
The target textbooks included Pearson's Biology, Cengage’s Principles of Economics and Macmillan Higher Ed’s Psychology. All three companies sued Boundless a year ago in federal court for copyright infringement and false advertising. The publishers accused Boundless of taking “hundreds of topics, sub-topics, and sub-sub-topics that comprise Plaintiffs’ textbooks and copied them into the Boundless texts, even presenting them in the same order, and keying their placement to Plaintiffs’ actual pagination.” Boundless insisted that topics and ideas could not be copyrighted.
Since then, Boundless has removed the three alternative online textbooks from its website (which it called its "beta" version) and produced revised offerings in each subject area.
The company’s lawyer said in a letter last month that the new material is "different in many significant respects" from the material that prompted the lawsuit.
Boundless does continue to offer material that it says "aligns" generally with the commercial textbooks students will use in those subjects (but won't say to what extent this material now correlates at a practical level), plus other material that is laid out by concept rather than by chapter.
Boundless now wants a federal judge to rule that this new material does not infringe on the publishers’ copyright.
Chris Morrison, a partner at the law firm Jones Day who has been following the case, said Boundless seems to have changed its original selling point entirely.
“Whether it was because of the litigation or not, Boundless decided to change the way it put together its materials,” he said. His firm is not involved in the case but has represented other publishers.
Morrison called the change by Boundless a victory for the publishers. “Boundless essentially admits it is no longer putting those texts in the market,” he said.
Boundless is not the only company that has sought to produce open-source textbooks, but it is the only one to be sued by publishers, Morrison said. He said Boundless was different because it is the only company he was aware of that created products designed to so closely mirror an existing commercially available product. Boundless also offers other material that is not designed to mirror another product.
Diaz, the company’s co-founder and CEO, said the changes were made not in response to the lawsuit, but to take advantage of improved technology and incorporate advice from content experts and students. Nevertheless, the company is using the changes to introduce a new legal tactic into its fight with the publishers.
Diaz said the company’s offerings still align with other textbooks on a “high level,” but he declined to say how closely the new material resembles the popular textbooks the company once tried to mirror.
“On a detail level, I can’t comment on the percentage of similarity or how that has evolved,” Diaz said in a telephone interview.
In a statement, Boundless also said it is “vigorously” fighting the publishers’ suit against its old products, a lawsuit that advocates for open educational resources have decried as an attempt to destroy the business model of a potential threat to the traditional publishers. But in its court filing, the company offered only boilerplate denials of the allegations and did not argue against the publishers on the merits.
“Since the publishers’ lawsuit was filed in March of last year, Boundless has revamped and improved its products and introduced new ones,” Boundless said in the statement. “Yet, even after being asked by Boundless’s lawyers, the publishers refused to say whether they believe that Boundless’s current offerings still infringe the copyright in their textbooks.”
The publishers’ lawyer, Matt Oppenheim of Oppenheim + Zebrak, said Boundless is only trying to delay the case.
“Boundless’s obvious attempts at delay cannot obscure the truth that copying a textbook is not innovation,” he said in an e-mail.
In late January, a judge rejected Boundless’s attempt to dismiss two of the five allegations the publishers made against the company.
Jonathan Band, an intellectual property lawyer in Washington, said Boundless now seems to be trying to make sure its new content is in the clear.
“They are worried that there is going to be this cloud hanging over their new content,” he said.