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Law school is notoriously expensive, but a growing number of professors are pushing back on the idea that law textbooks must be expensive, too. Faculty members at the New York University School of Law have taken matters into their own hands by publishing their own textbooks at no cost to students.

Barton Beebe, a law professor at NYU, published the sixth edition of his trademark-law textbook last year. Fellow NYU professors Jeanne Fromer and Christopher Jon Sprigman also published the first edition of their copyright-law textbook in 2019. Both titles are available to download electronically at no charge and are already in use at dozens of universities. Print copies of the textbooks can be ordered on demand through Amazon for the bargain-basement price of $20.26 and $15.40, respectively. The authors make no profit from these sales.

Professors authoring free textbooks isn’t a new concept. The open educational resources (OER) movement, which depends on faculty members sharing their work with the public for no personal monetary gain, was established over a decade ago. But law professors have been slow to embrace the OER movement, preferring to assign titles from well-known publishers that typically charge students in excess of $200 per book. At NYU, law students are advised to budget $1,450 for books and supplies each year on top of their $66,000 tuition.

Whether the free textbooks that Beebe, Fromer and Sprigman authored should be considered OER is a surprisingly complex question. The term “OER” is noticeably absent from the university’s promotion of the free textbooks, despite the textbook authors themselves embracing the term. Yes, the textbooks are free, but are they open?

Definitions of OER vary, but many advocates agree that OER content must be openly licensed to make clear that users can revise and remix the content however they desire. Creative Commons licenses requesting that users provide attribution to the original author, or preventing them from selling the work commercially, are common for OER materials. But licenses stating “no derivatives” are not. These licenses prohibit users from sharing content they have modified without prior permission, even if their changes improve the original material.

While Beebe’s textbook allows derivatives, Fromer and Sprigman’s book does not. Fromer said she has no problem with other people modifying or adapting the content, she just wants to know about it first. On the Amazon description for the copyright-law textbook, the authors ask users to note that the license "does not permit you to make modifications to the textbook or to create derivative work. That said, there are a wide variety of derivatives that we would gladly permit. If you want to make modifications to the textbook, please contact us."

Sprigman explained that he and Fromer didn’t want to risk their reputation by having their names associated with content that other people had created, particularly if these modifications introduced errors or espoused views on the law that they don’t support. In law, perhaps more than any other field, “words really matter,” he said.

Beebe said he would also consider using nonderivative licenses in the future for this reason.

“When you write a book like this, you want to give students a balanced understanding of what the law is about," he said. "There are ways in which you can explain things which can shape people’s understanding.”

Beebe published the first edition of his free textbook in 2014. He felt frustrated by the “exploitative” prices that publishers charge for casebooks, which consist primarily of public-domain material such as court opinions. “The value that publishers add for these kinds of books is negligible,” he said.

His textbook is now being used at over 40 institutions around the world.

Fromer and Sprigman said they also wanted to reduce costs for their students, who often take on significant debts to attend law school. Their textbook is already in use at the University of California, Berkeley, School of Law; William and Mary Law School; National Law University Delhi; and many other institutions.

Fromer and Sprigman took particular care to make the textbook look good, hiring a graphic designer to improve the layout and design an attractive cover. All three have received thoughtful feedback on how to improve their textbooks and will continue to update them as needed.

The NYU professors are optimistic that more of their colleagues will start to create free content under Creative Commons licenses. Sprigman, a former board member for Creative Commons, said it is curious that these licenses that were “thought up and drafted by lawyers have been taken advantage of by other scholarly communities more than our own.”

“As more people do this, as conversations start to happen at conferences and people start to get ideas of their own, this is going to grow,” said Sprigman. “It’s just come a little late to law.”

Lisa Petrides, founder and CEO of ISKME, the education nonprofit behind OER Commons, a digital library, said early efforts to develop OER content were concentrated in entry-level courses with large numbers of students.

“Now the low-hanging fruit is gone, we are starting to see the expansion of OER into other fields,” she said.

There may not yet be much OER content for law students, but that could change, said Petrides. She noted that OpenStax, a popular publisher of OER textbooks, published its first law textbook in September 2019.

When it comes to which licenses should or should not be considered OER, Petrides said she is "more on the agnostic side" of the debate.

“Our goal as an organization has been to get faculty engaged in the adoption of OER. There are some libraries and some organizations that say creators can’t come in unless they use an open license such as CC-BY," she said. CC-BY licenses require users to provide attribution to the original authors of the content but have no other restrictions on use. Petrides said if the OER Commons had started out with this restriction that it would have no content now, as professors want the freedom to experiment and exercise their author rights in different ways.  

Gerry Hanley, executive director of MERLOT, a digital library of OER content led by California State University, shared a similar perspective.

Concerns from professors that people who modify OER content might introduce errors should be taken seriously, they said. Science professors, in particular, are often concerned about the fidelity of remixed or revised content -- particularly the accuracy of formulas and equations, said Petrides.

“The real strong advocates of CC-BY licenses ignore these concerns to their peril,” she said.

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