Another spin on Georgia State copyright ruling (essay)

Keeping the costs of textbooks and other learning tools as low as possible for today’s college students is a goal almost everyone can agree upon. How to accomplish that goal, however, is another matter entirely.

And pursuing that goal in the courts, where sweeping decisions can render in a minute what might otherwise take years to implement, is risky at best and counterproductive at worst.

Sometimes, however, savings for students can be found in the most unlikely of places. To prove my point, take a close look at Cambridge University Press v. Becker, widely known as the Georgia State University (GSU) E-Reserves case, initially ruled upon three months ago by U.S. Federal District Court Judge Orinda Evans, who issued a further ruling last Friday.

Most of the press coverage of Judge Evans’s ruling concentrated on its delineation of the many ways that colleges can continue to cite the doctrine of “fair use” to permit their making copies of books and other materials for use in teaching and the pursuit of scholarship. And, to be fair (pardon the pun), in 94 of the 99 instances claimed by academic publishers such as Cambridge, Oxford and Sage to be violations of copyright, the judge did rule that GSU and its professors were covered by fair use.

But in its fair use assessment, the court made two important rulings: (1) it created a bright line rule for the amount of text that can be copied; and (2) it established that when publishers make excerpts available for licensing (particularly in digital form), the publisher has a better chance of receiving those licensing fees (i.e., it is less likely to be held fair use). With regard to the first ruling, the key point is that the guesswork has been taken out. Specific amounts (10 percent of a book if less than 10 chapters, or 1 chapter of a book if more than 10 chapters) allowable for copy have been set.

The second ruling is even more significant. At first glance, it might seem that licensing “fees” have negative ramifications for students, as they would now be forced to “pay” for materials that would otherwise be “free.” But the nuanced reality of the ruling, at least in my view, is that this will actually do more to keep student book prices down than the commonly accepted benefits of fair use.

Here’s why: without this finding, many small and mid-size academic publishers might otherwise be priced out of participating in the higher education market and a handful of larger textbook players could multilaterally decide to raise prices within their tight but powerful group, serving to hurt students’ pocketbooks in the process.

However, the ability for all publishers -- small, medium and large -- to sell excerpts that are “reasonably available, at a reasonable price” levels the playing field for suppliers of content. This then leads to a pricing scheme that rewards the creation of effective units of content, meaning that students are paying only for what is most relevant to their studies, and not the extra materials that inevitably become part of comprehensive textbook products.

Disaggregation of content therefore, is not a license to charge students for materials that would otherwise be free. Instead, disaggregation is an enabler of the provision of targeted, highly relevant content that, in the end, may actually cost students less than their purchase of more generalized materials that often include content not taught in a particular class.

The pricing of disaggregated content is, to be sure, set entirely by the publisher. But a publisher faced with an opportunity to amortize a portion of its intellectual investment through what is, in effect, a “permission fee” per student or to hold fast to a view of “buy the entire book or nothing at all” will, I am fairly certain, come to a quick realization that unit pricing is the way to go.

If “a small excerpt of a copyrighted book is available in a convenient format and at a reasonable price, then that factor [in the fair use assessment] weighs in favor of the publisher to be compensated for such academic use,” according to Judge Evans’s initial ruling in the GSU E-Reserves case. This not only stands in her recent ruling, it is reasonable because it incentivizes publishers to make their content more readily available to be licensed and it provides a mechanism by which academic institutions can take advantage of those licenses.

From the outset, the purpose of the GSU E-Reserves case, as brought by the plaintiff publishers, was to try to bring some judicial clarity to GSU’s practice of posting large amounts of copyrighted material to e-reserves system under a claim of fair use.

Now, with this latest ruling by Judge Evans, the copyright picture is beginning to clarify, but a healthy debate of the meaning of the ruling remains in order. As CEO of a company that strives to make available copyright-cleared units of content for professors to assemble into “best-of” books, I’ve just provided my take. What’s yours?

Caroline Vanderlip is CEO of SharedBook Inc., parent company of AcademicPub.

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Judge slaps down injunction request in Georgia State copyright case

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Judge in Georgia State copyright case deals another blow to publishers, declares victory for the university.

Authors Want Rights Back From Missouri Press

Authors have been telling the University of Missouri Press in the last week that they want the rights to their books returned, and that they don't believe new plans for the press live up to its obligations, The Kansas City Star reported. The university announced plans to phase out existing operations, but then said that the press would be kept alive as a way to teach students, in an all-digital format. For the last week, the Star reported, Missouri officials have been calling authors asking them not to demand their rights back, or not to turn over their rights to other presses.


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Review of Quintus Tullius Cicero, "How to Win an Election"

Appearing in a format similar to that of another work applicable to American politics -- Harry Frankfurt’s landmark treatise On Bullshit -- the little volume called How to Win an Election: An Ancient Guide for Modern Politicians (Princeton University Press) is a new edition of Commentariolum petitionis. It is an essay attributed to Quintus Tullius Cicero, supposedly from 64 B.C., though it may have been written in the following century. Scholars have argued about that long and hard over the years. It could be the work of a student mimicking Cicero, or a historian imagining how the illustrious statesman Marcus Cicero might have been advised about the grubby side of political life under the republic.

Coming in at not quite 120 pages, How to Win an Election is a quick read -- especially if you don’t know Latin: the original work appears on the even-numbered pages, and Philip Freeman’s translation on the odd-numbered. In his introduction, Freeman (a professor of classical languages at Luther College, in Decorah, Iowa) gives a quick and fairly broad sketch of Roman politics in Cicero’s era. A short list of recommended readings includes Anthony Everitt’s Cicero: The Life and Times of Rome’s Greatest Politician, but not, oddly enough, Plutarch’s biography. Either one is well worth tracking down for more context.

Freeman mentions the scholarly debate over who wrote the work, but shrugs it off. “The author,” he writes, “was clearly someone intimately familiar with Roman politics in the first century B.C. who possessed a keen sense of how elections are won in any age.” No doubt, but it's hard to read the document without wondering whether it is fact or fiction.

Authentic or not, the Commentariolum is supposed a letter from Quintus Tullius Cicero to his older brother Marcus (the famous one) on the eve of the campaign for consulship -- as spelled out in the title of another translation of it, available online.

Consulship was an office resembling that of president or prime minister, with some high-priestly responsibilities thrown in. The position would lose much of its power within a few decades, as civil war gave way to the dictatorship (benign and otherwise) of the Caesars. But Marcus was running for consul when it remained the highest office in the land. 

That a non-aristocrat like Marcus had a shot at the position was a sign of changing times. He and his brother came from a family that had made its fortune in the toga-cleaning business. The laundering process involved soaking the cloth in urine to get the grease out. It was then rinsed very thoroughly, of course. But still…. Another Roman would coin the phrase pecunia non olet (“money doesn’t stink”), but Marcus Cicero's background must have been a gift to political satirists, even so.

Marcus was thoroughly grounded in Greek rhetorical theory and political science. But lofty ideas do not win elections, and you won’t find any in the manual Quintus wrote for Marcus (assuming he did). It is a bouillon cube of electoral realpolitik – and the advice, if authentic, clearly worked. Marcus won the seat.

To boil the recommendations down to the first PowerPoint slide: A candidate must know how to schmooze, smear, and make lots of promises without becoming excessively distracted by the absolute certainty he will fail to meet most of them.

“If you break a promise,” Quintus Cicero explains, “the outcome is uncertain and the number of people affected is small. But if you refuse to make a promise, the result is certain and produces anger in a large number of voters.” Besides, once elected, time is on the candidate’s side: “Events are always happening that you didn’t expect or not happening that you did expect. Broken promises are often lost in a cloud of changing circumstances so that anger against you will be minimal.”

In short, what have you got to lose? “After all, if a politician made only promises he was sure he could keep, he wouldn’t have many friends.”

True, that. Electoral politics is all about making friends (or “friends,” anyway) without creating, along the way, a bunch of enemies who know various unflattering rumors or inconvenient truths about the candidate. Cicero indicates that the most damaging information about a candidate is likely to come from family members or very close associates.

First of all, the candidate must seek out the privileged --  whose ranks he is trying to join -- to reassure them that he will defend their interests. “Tell them,” Quintus says, “that if you seem to be siding with the common people on any issue it is because you need to win the favor of Pompey, so that he can use his great influence on your behalf or at least not against you.” (Imagine someone with the pre-Palin reputation of John McCain and the post-Lewinsky mojo of Bill Clinton and you get some sense of Pompey.)

Besides the patricians, there are figures exercising power within their own towns, neighborhoods, associations, and so on. The candidate who wins their support also wins the votes of the people they influence. But take care, the campaign advisor warns, “to distinguish these men from those who seem important but have no real power and in fact are often unpopular in their group. Recognizing the difference between the useful and useless men in any organization will save you from investing your time and resources with people who will be of little help to you.”

Given the audience for this column, it seems like a good point to comment on academic politics, but you’re probably way ahead of me on that.

Besides cultivating the power elite, a candidate needs to “meet and get to know many different types of people you wouldn’t normally associate with in your daily life.” It can be wearying. But consider it an opportunity: running for office is a “perfectly respectable” way “eagerly and unashamedly [to] cultivate friendships with people no decent person would talk to.”

Likewise, while “the art of flattery [is] a disgraceful thing in ordinary life,” it definitely has its uses on the campaign trail. “If you use flattery to corrupt a man,” the tactician explains, “there is no excuse for it, but if you apply ingratiation as a way to make political friends, it is acceptable. For a candidate must be a chameleon, adapting to each person he meets, changing his expression and speech as necessary.”

Such passages are what make even a non-classicist wonder if the document is real. As someone said in another context, “You don’t talk about these things, you just do them.” The less impressionistic doubts about its authenticity focus on certain word choices or historical references that might be anachronistic. It has also been argued that the “letter to Marcus” format was some kind of ruse -- that it was really meant to be circulated among potential supporters of Marcus among the aristocracy. It would be a signal that they shouldn’t be worried about any crowd-pleasing promises the candidate made.

If so, it was also a reminder of just how much dirt the Marcus campaign had on his opponents -- in particular Catiline, an aristocratic hothead who, the letter notes, “lived a life of debauchery” while hanging out with actors and was known to pal around with gladiators, who served as “hired thugs in all his crimes.” As for the crimes, they were too numerous to list:

“He never missed a chance to defile a holy shrine even if his companions refused to stoop so low…. He was so impudent, so wicked, so skilled in his licentiousness that he molested young boys almost in the laps of their parents. Do I even need to remind you of what he did in Africa? It’s all recorded in the indictments, which you should take care to review carefully, by the way…. He is so unpredictable that men are more afraid of him when he is doing nothing than they are when he is making trouble.”

And rightly so: Catiline would lead an unsuccessful coup attempt two years later. If the accounts of Roman historians are anything to go by, nothing in the Commentariolum really counts as defamation of character. The guy really does sound like a scumbag.

Whoever wrote the document, and for whatever reason, it’s silly to think anyone in the 21st century will read it as a guide for planning a campaign. Somebody who doesn’t already have an instinctive understanding of the points it makes won’t last long enough to become candidate for city council, much less president.

No, its appeal is for the electorate, as a reminder of what we’re up against. Politicians may come and go, and campaigns ebb and flow -- but election-year cynicism is forever.

(NOTE: Two corrections have been made since this column was originally posted. A garbled reference to Quintus as the more famous brother has been removed, and the original spelling of Catiline has been entered, although modern writings -- such as translations of Sallust's history -- often call him Cataline.)


U. of New Orleans Says Press Hiatus Will Be 'Brief'

The University of New Orleans issued a statement late Monday clarifying the "hiatus" it had declared for its university press. The university last month told the director of the press (the only full-time employee) that his job had been eliminated and that the press would be on "hiatus." The statement issued Monday says: "The UNO Press is not being closed. It is presently on a brief hiatus, during which time it will be accepting no new manuscripts while the administration reviews the UNO Press' business plan. The UNO Press plays an important role as a publisher of scholarly and literary books, and we hope it will return to full operation soon. All contracts that have been issued will be honored."

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University of New Orleans plans to put university press on "hiatus"

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U. of New Orleans plans "hiatus" for scholarly publishing unit -- and eliminates job of director (the only full-time employee).

Essay predicting that campuses will be completely digital in 3 years

The time has come to ask the question: When will we see the complete digital transformation of higher education in the United States?

The need for the shift to digital are painfully clear: Grades are lagging, students aren’t graduating, and those who do earn a degree often don’t have the skills that employers want. While digital learning won’t solve all these problems, we need to find ways to drive students’ performance to help them recoup their college investment, and I believe that digital represents the fastest and best option.

With these needs in mind, I’m willing to put my stake in the ground.

As I see it, the publishing industry needs to do all it can to ensure that within 36 months, higher education in the U.S. will be completely digital. I’m not talking about a slight or even gradual increase in e-book adoptions or the use of adaptive learning. I’m talking about a total transition from a reliance on print textbooks to a full embrace of digital content and learning systems. Aside from the college library, you hopefully won’t be able to find a printed textbook on a college campus in three years. And if you are, we should all be disappointed.

To date, the rate of adoption of digital course materials has been slower than most would have expected. Only around 3 percent of students today purchase e-books over print, and less than half of my company’s customers come to us for digital.

There are a few reasons why I think we haven’t seen greater uptake. For one, education is a high-stakes endeavor for students, with important outcomes riding on it. While students may be willing to switch to digital in some aspects of their lives, when it comes to studying, they often want to stick with what they know. There’s also the fact that until recently, the user experience offered by e-books and other digital technology just hasn’t been very good. A glorified PDF of a printed page is not compelling to students. Finally, and I think most importantly, the value proposition of digital to students and institutions hasn’t been clear. Many students and colleges are unaware of how digital can enhance the learning experience beyond making it more portable and affordable – and provide real results.

For such a big transition — a leap forward, really — three years may seem like a short period of time. In today’s technology landscape, it’s an eon. Thirty-six months ago the iPad didn’t exist. Now, 65 million units later, it has changed the way we consume, create and share information. If that number isn’t big enough for you, try this one: 760 million — that is how many tablets Forrester expects will be in use by 2016.The adoption of these devices is happening at a lightning rate, and the inevitability of falling prices will make them even more accessible to students.

Student attitudes toward digital in the classroom are also evolving. Studies show that after using technology in an education setting for only a short time, students are realizing that they can’t live without it. As the design of digital education materials and technology continues to improve, students’ affinity for it will only grow.

It’s one thing for digital content and learning systems to offer a nice user experience and some interactive features. It’s another to help make meaningful gains in student performance.

Today’s digital technology already meets this challenge. Super-adaptive systems such as McGraw-Hill’s LearnSmart, a digital homework tutor that adapts to each student’s individual knowledge levels and creates custom study paths, are making a dramatic impact on student outcomes by scaling a personalized learning experience. An effectiveness study of LearnSmart showed that students using the program have seen significant improvements in pass rates, retention rates and increases in their overall academic performance. Results like these – whether they come from McGraw-Hill or other leading companies in our field – are something we just can’t afford to ignore, especially in light of the rising costs for higher education and falling student achievement.

If you want to get a sense of how confident we are in the effectiveness of this technology, take a look at a recent pay-for-performance partnership McGraw-Hill Education formed with Western Governors University. This partnership ties the fees we receive for learning materials to the grades of the students using those materials in class.

For professors – the foundation of our higher education system – digital provides an important collateral benefit. Working with students who come to class prepared and have an active interest in what they're learning allows them to spend less class time reviewing the basics and more time exploring advanced concepts. This is the type of teaching that leads to higher-order learning, and it’s the type of teaching that professors love doing the most.

When we talk about innovation, it’s usually in the context of technology. But where innovation is really shining through in education is in the models that learning companies are developing with colleges and universities to provide digital technology to students more affordably.

Colleges such as Indiana University and the University of Minnesota are partnering with learning companies to ensure that all students have access to the learning materials for their courses at a price that’s substantially lower than what they’re used to paying – as much as 60 percent less than a print textbook. At a price that’s comparable with a used print book, students receive all of the benefits of going digital: portability, instant access to course material on the first day of class, and seamless integration with adaptive learning systems that provide personalized instruction.

While the transition to an all-digital learning materials experience may not always be comfortable, it’s one that is a necessary part of the solution. Technology isn’t just about improving access or engagement, it’s about achieving what should be the main goal of our higher education system today: improving student performance.

If my 36-month timeline sounds ambitious, that’s because it is. We have the tools to help solve one of the greatest challenges of our times – we just have to put them to use.


Brian Kibby is president of McGraw-Hill Higher Education.

New book on legal education and its discontents

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New book attacks the current state of legal education. The author? A law professor.

Student Spending on Textbooks Drops

Students estimate they spend $655 annually on required course materials, down from $667 two years ago and $702 four years ago, according to a study released by the National Association of College Stores. Officials attributed the decline to the wider availability of options like renting textbooks.


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University of Minnesota releases e-book about academic technology

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University of Minnesota faculty and staff released an e-book in 10 weeks chronicling advances in academic technology.


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