Tag Archive for copyright

Cheaper Textbooks (So They Say)

I don’t often write about textbook publishing, but with the start of the new school year I thought it appropriate to say a few more words on the subject. I say more because I blogged about the changing student textbook market around this time last year, exploring how the rental market in particular had started to affect the ways college students acquire and think about their course texts.

Well, that was a year ago, and paper books are soooooo 2011. The big push this year (which, admittedly, has been building over the course of several years) is for electronic course texts or, in some cases, the bundling of electronic resources with traditional paper textbooks. I can’t stop hearing about the subject both on my own campus and in the periodicals I follow, including The Chronicle of Higher Education.

To wit: this week’s Chronicle included a story entitled “With ‘Access Codes,’ Textbook Pricing Gets More Complicated Than Ever.” (Apologies in advance: you’ll have to be a subscriber to read the full text.) It focuses on a business student at the University of Maine, Luke Thomas, who, last semester, needed to buy a (paper) textbook for his introductory English course. Expensive — but so far, so good. The complication occurred when Thomas discovered that the book, published by textbook giant Cenage, came bundled with a code he would need to access supplementary materials, which were only available online. He and his wife had been planning to use the course text together, effectively cutting the net cost of the overpriced book in half. But because each code was tied to one, and only one, student, they were unable to do so — that is, unless one of them was willing to forgo participation in the class’ online element and potentially jeopardize her or his grade. You can read Thomas’ great, muckraking blog post about the incident here.

I’m sure there are myriad instances of college students confronting these types of dilemmas right now, and not only the married ones. I remember friends during my undergraduate years (this was the early 1990s) routinely buying course texts that they’d then share for the semester. I’m pretty sure I did this once myself, in a Communication course my roommate and I had both enrolled in. But what I see, in the emerging age of e-publishing, is a deliberate attempt on the part of textbook publishers, suborned either by greedy or willfully ignorant faculty, to mitigate and even eliminate these types of arrangements.

What makes this situation all the more startling is the language that’s typically used to sell e-learning materials to professors and students. Over and over again we hear how e-texts are “cheaper” than their printed, paper counterparts and how supplementary online materials add real value to them. What the marketing departments won’t tell you is that that “cheaper” isn’t an absolute term and that value-added actually comes at a cost.

Let’s say, for the sake of argument, that a student can buy a $50 e-version of a course text whose paper edition would cost $100 brand new. That’s a 50% savings, right? Well, not exactly. If two friends wanted to share the cost of the book together, that cost savings is already matched — bettered, actually, since there exists a robust used market for paper textbooks that would probably net the students at least a few dollars at the end of the term. (You generally can’t “sell back” an e-text, since you license rather than own the content.) As for the so-called value-added e-features, Thomas’ story makes abundantly clear how, in fact, this value isn’t added as much as paid for.

I don’t doubt that large textbook publishers like Cenage want to follow what they perceive to be industry and cultural (some might say generational) trends in making such an aggressive move into e-publishing. But it’s not only about that. It’s also about hammering away at the first-sale doctrine, which is the legal principle that allows the owner of copyrighted material to share it with or resell it to someone else without fear of legal reprisal. The move into e-publishing is also a way to effectively destroy the market for used textbooks, which, admittedly, has long been difficult to sustain given publishers’ efforts to issue “revised” editions of popular texts every few years.

Bottom line: if you believe in the free market, then you should be opposed many of these types of e-publishing initiatives. There’s no such thing as a free lunch — or even a cheap one, for that matter.

So with that, then, I want to bestow my first ever Late Age of Print Hero Award on Luke Thomas, for his courageous efforts to bring these important issues to public attention. Thank you, Luke.

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Academic Publishing Roundup — Communication Edition

Wow! I’m happy to report that my home discipline, communication, is finally making some strides in terms of bringing its book and journal publishing policies into the 21st century.

Last week, the International Communication Association (ICA), in Conjunction with American University’s Center for Social Media, released its Code of Best Practices in Fair Use for Scholarly Research in Communication. The Society for Cinema and Media Studies devised a similar statement of best practices way back in 1993 (it updated the document in 2009), so needless to say I’m pleased to see ICA catching up at long last.

These types of policy statements are vitally important for media and communication scholars, and indeed for scholars more generally. As more and more of our work engages words, sounds, images, and other artifacts drawn from the popular media, we need to be reasonably assured that we can criticize and, where necessary, reproduce content protected by copyright, trademark, and other forms of intellectual property law. That’s exactly what these best practices statements do, in part by identifying a “community of practice” and carefully defining its — in this case, scholarly — customs. But it’s not only about “show and tell.” Reproducing copyrighted content in academic work is important to the scholarly process. How else would reviewers, other scholars, and anyone else who may happen to read our work assess the validity of our claims?

Academics routinely — and often unnecessarily, I might add — self-censor our work, for instance by opting to exclude images we’re analyzing for fear we’ll get sued by some deep-pocketed media giant. Heck, I’ve even done it myself. And that’s why I’m such a champion of these best practices statements. They may not give us carte blanche to use intellectual properties in our work however we may see fit. They do give us a useful set of guidelines for making informed judgments about how best to proceed in these matters, though, plus they underscore how our own practices are in solidarity with others.

The other bit of good news is that Boston College’s Charles (Chuck) E. Morris III has drafted a resolution calling on the National Communication Association (NCA) to revise its fees for licensing NCA-copyrighted material. In a preamble to the document, Chuck writes:

The resolution seeks to regulate the prohibitively expense copyright fees charged by Taylor & Francis [publisher of NCA journals] in conjunction with NCA. Particularly alarming is that while for more than a decade NCA Executive Directors, who contractually have the prerogative to waive or reduce fees, intervened to make reprinted NCA journal materials affordable for high quality anthologies/readers of pedagogical and scholarly value, the current NCA Executive Director, Nancy Kidd, has prioritized profit and is allowing a dramatically higher fee.

Basically, NCA jacked up its reprint fees about a year ago, a move that will price smaller presses out of the business of republishing top-quality communication research. The change not only promises to whittle down the competition (leaving only behemoths like Taylor & Francis, Wiley-Blackwell, and Sage standing), but it’s also inimical to the larger cause of scholarly communication. When Chuck writes that NCA is putting profits ahead of publishing, he’s exactly right.

If you’re an NCA member, you have until Tuesday, June 29th the add your name to the document. You can do so by contacting Chuck via email: morrisch@bc.edu. And hey — if you’re not an NCA member but you believe in the spirit of the resolution, why not go ahead drop Chuck a line anyway? I don’t know if he can add your name to the formal list of signatories, but it can’t hurt for him to be able to attest to support coming from beyond NCA.

Now, if only we could get NCA to adopt a best practices for fair use statement of its own. It’s an embarrassment, frankly, for the oldest and largest professional association for communication scholars in the United States to lag so far behind its peers.

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Pirate Pedagogy

On February 10, 2010, a German court began what may well be the start of the book industry equivalent of the dismantling of Napster.

Earlier that month, six global publishing firms — John Wiley & Sons, McGraw-Hill, Macmillan, Reed Elsevier, Cengage Learning, and Pearson — filed suit against RapidShare, seeking an injunction against and damages from the file-sharing service for having violated the publishers’ copyrights.  At the center of the suit were 148 e-books that the publishers alleged had been uploaded to the site and subsequently distributed without compensation to the rights holders.  RapidShare, they claimed, had become a pirate vessel teeming with all sorts of illegal e-book booty.

The question I want to raise here is this: does it make sense at this particular juncture for book publishing to go the way of the music industry in chasing down websites that facilitate digital piracy?

I began pondering this question last week as I drove from Indiana to the University of Illinois, where I delivered a lecture at the Graduate School of Library and Information Science.  The extended car travel gave me the chance to listen to the audiobook of Chris Anderson’s Free: The Future of a Radical Price, which I’d downloaded gratis shortly after the book’s release last July.

I was deeply intrigued by Anderson’s discussion of Microsoft’s anti-piracy strategy in China, where the illegal trade in the company’s products reportedly runs rampant.  In the 1990s, Microsoft took a hard line against Chines software pirates — publicly, at least.  Behind the scenes, however, company executives secretly understood that while software piracy may hurt them financially in the short-term, it had the positive effect of locking the Chinese market into its proprietary platform over the long-term.  With China’s growing economic prosperity, Anderson reports, more and more people there have begun purchasing legitimate Microsoft products.  “Piracy created dependency and helped lower the cost of adoption when it mattered.”  In other words, it was piracy that significantly helped seed the ground for Microsoft’s present dominance in China.

Now, it seems to me that there’s a similar case to be made for e-book piracy.  A little over a year ago, the Guardian’s Bobbie Johnson offered a pro-piracy argument for e-books, suggesting that publishers will only move into the digital realm in earnest once they realize there’s sufficient piracy going on there.  Until they discover they need to control the e-book market, Johnson argues, there’s little incentive for them — and by extension, readers — to make the shift.

While I’m persuaded by Johnson’s thesis in principle, he doesn’t take it far enough.  I’ve already commented on his amnesia about printed book piracy, which over the years has fueled many e-book initiatives.  Now I realize there’s something else going on here, too.  Johnson claims that the music industry embraced digital downloading only after pirates dragged the industry kicking and screaming in that direction.  And where music publishing goes, says Johnson, so too book publishing must go.

The problem with this claim stems from the rather different material histories of sound recording and book publishing.  Wax cylinders, forty-fives, LPs, eight-tracks, cassette tapes, CDs, mini discs, digital audio tapes: the fact is that music formats have changed significantly — indeed, regularly — over the last 50 or 100 years. Music lovers have long understood that “music” is not equivalent to “format.”  Even before the introduction of digital music downloads, listeners were well disposed to format change.

The same isn’t true for books.  With the exception of relatively minor disturbances — chapbooks and paperbacks come most immediately to mind — bibliographic form hasn’t changed all that much since the introduction of the codex.  The result is that book readers are much less inclined to embrace format change, compared to their music-loving counterparts.  And this inertia is, in part, what has held up widespread e-book adoption.

All that brings us back to RapidShare.  What the presses who sued RapidShare don’t seem to understand is that if e-books do indeed represent the future of publishing, then you need to provide readers with significant incentive to embrace the change.  That’s exactly what RapidShare and other file-trading sites have been doing: educating would-be e-book consumers in the virtues of digital reading.

It isn’t stealing.  It’s pirate pedagogy.

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Willy Strikes Again

On the heels of my previous post, concerning a 2000 copyright infringement suit brought against author J. K. Rowling, comes news of new allegations that the Harry Potter scribe may have lifted material from a fellow writer.  The author in question, the late Adrian Jacobs, penned a little-known 40-page children’s book back in 1987 — a decade before the first Potter release — called The Adventure of Willy the Wizard, No. 1 Livid Land.  According to the Jacobs estate, which is initiating the suit, it was he and not Rowling who first conjured up “the idea of wizard prisons, hospitals and schools.”  Rowling has responded by saying that the charges are “not only unfounded but absurd.”  The Jacobs estate estimates that the suit could be worth a billion dollars.

I don’t have much information about the case beyond the press reports to which I’ve linked above, so I want to be cautious about offering too much commentary here.  I will say, however, that I find it difficult to accept the plaintiff’s claim that Rowling’s borrowings are “substantial,” given the brevity of the Willy book. This sounds to me like an attempt to claim ownership of a general concept, which would contravene the longstanding idea-expression divide within U. S. copyright law.  In a nutshell, the law says you can only copyright the specific iteration of an idea, and not the idea itself.  Everything in this case consequently hinges on the question of the specificity of Rowling’s alleged borrowing.

The Willy case reminds of another recent one.  In 2006, Da Vinci Code author Dan Brown was sued by the authors of Holy Blood, Holy Grail, who alleged that Brown had absconded with 15 central themes from their book, as well as its basic plot architecture.  But the judge in the case, Justice Peter Smith, disagreed.  In his ruling he noted: “It is true that aspects of the Central Themes can be traced through the textual parts identified by the Claimants.  That is because the Central Themes are too general and nothing significant is to be concluded from that identification.” (Hats off, by the way, to Justice Smith.  Apropos of the bestselling book in question, he laced the ruling with a secret code of his own.)

Even if the allegations made by the Jacobs estate ultimately don’t hold up in court, they nevertheless underscore a tension that lies at the heart of all of the Harry Potter litigation — including that brought by Rowling herself.  We’re dealing with a book series that, however original in its own right, nonetheless makes copious use of themes, character types, and narratives that are ubiquitous in Western culture.  The fact that there’s  significant overlap with the work of other writers shouldn’t surprise anyone, least of all J. K. Rowling.

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Harry Potter and the Simulacrum

I’ve been meaning to blog about this for a couple months now.  An article of mine, which may be of interest to readers of The Late Age of Print, was published in the October 2009 issue of the journal, Critical Studies in Media Communication (CSMC).  Here’s the citation, abstract, and keywords:

Ted Striphas, “Harry Potter and the Simulacrum: Contested Copies in an Age of Intellectual Property,” Critical Studies in Media Communication 26(4) (October 2009): 1-17.

This essay begins by investigating how and on what basis the boundary between originals and copies gets drawn within the framework of intellectual property law. It does so by exploring Harry Potter-related doubles that were featured in the 2000 trademark and copyright infringement case, Scholastic, Inc., J. K. Rowling, and Time Warner Entertainment Company, L.P. v. Nancy Stouffer. The paper then moves on to consider how, within the context of the case, the boundary line dividing “originals” from “copies” grows increasingly indeterminate, so much so that it becomes untenable to speak of either category at all. It thus investigates what happens when the figure of the simulacrum, which troubles bright-line distinctions between originals and copies, enters into the legal realm. Theoretically, the simulacrum would seem to pose a challenge to intellectual property law’s jurisprudential foundations, given how it blurs what should count as an “original” or a “derivative” work. This paper shows that while this may be true in principle, powerful multimedia companies like Scholastic, Time Warner, and others can strategically deploy simulacra to shore up their intellectual property rights.

Keywords: Harry Potter; Intellectual Property; Copyright; Trademark; Simulacrum

There’s a good deal of thematic overlap between the article and Chapter 5 of The Late Age of Print, which also focuses on Harry Potter and intellectual property rights.  They differ, though, in that the journal essay is more theoretically focused than the book chapter; the latter, I suppose, is more historical and sociological.

The strange thing about “Harry Potter and the Simulacrum” is that even though it’s quite theoretical, it’s also quite — I’m not sure what exactly — playful? comical? whimsical?  In any case, it’s probably the most fun piece that I’ve ever written and published.  I attribute that largely to the bizarre court case at the center of the essay, which I swear must have been plucked from the pages of a Lewis Carroll story.

In a perfect world I’d link to a PDF of the article, but the journal publisher, Taylor & Francis, prohibits it.  In an almost perfect world I’d link you to a post-print (i.e., the final word processing version that I submitted to CSMC), but even that I’m contractually barred from doing for 18 months from the time of publication.

Taylor & Francis charges $30 for the essay on its website, which to my mind is just ridiculous.  Heck, a yearly personal subscription to the journal costs $81!  So, if you’re university-affiliated and want to take a look at the piece, I’d encourage you to check with your own institution’s library.  If you’re not, I’m allowed to share a limited number of offprints with colleagues, and you can email me for one.

To complicate matters even more, the printed version of “Harry Potter and the Simulacrum” has the wrong copyright declaration.  I signed Taylor & Francis’ double-secret “license to publish” form instead of the usual copyright transfer.  Despite that, the piece still says © National Communication Association, which is the scholarly society under whose auspices CSMC is published.  Sigh.

Suddenly this is starting to sound like a Lewis Carroll story….

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Download The Late Age of Print

One of the defining attributes of the late age of print is the erosion of old publishing certainties.  Among them is the notion that the free circulation of book content leads inevitably to lost sales.  Another is the belief that strong, proprietary systems are the best way for publishers and authors to secure value in their intellectual properties.  Maybe it’s too soon to let go of these notions completely.  It’s fast becoming clear, however, that they cannot be taken for granted any longer.

There are two ways of responding to the erosion of old certainties like these.  One way is to dig in your heels, hoping to keep familiar ground from shifting under your feet.  The other is to allow the erosion to expose opportunities that may have been buried underfoot all along.  With the latter you risk coming up empty, but with the former you risk something worse — inertia.

I’m pleased to report that my publisher, Columbia University Press, isn’t one of those digging in its heels.  It’s taken the bold step of releasing The Late Age of Print: Everyday Book Culture from Consumerism to Control not only as a copyrighted, bound physical volume, but also as a Creative Commons-licensed electronic book.  You can download the e-edition by following the “download” link of the navigation bar, above, or by clicking here.  The file is a “zipped” .pdf of the complete contents of Late Age, minus one image, for which I was (ironically) unable to secure electronic publishing rights.

I thank Columbia University Press for releasing my book electronically under a Creative Commons license.  In doing so, it’s embraced the extraordinary spirit of openness that is beginning to flourish in the late age of print.  Mine is the first book the Press has decided to release in this way.  Here’s hoping that many more will follow.

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The “Not Enough Pirates” Hypothesis

Yesterday I ran across this intriguing post on The Guardian Technology Blog, about e-books and book piracy.  There, author Bobbie Johnson advances a provocative, and perhaps counter-intuitive, claim.  E-books have yet to really take off, he argues, because printed books haven’t been subjected to a level of online piracy sufficient to inculcate a digital disposition in book readers.  The analogy Johnson draws is to the music industry, where peer-to-peer file sharing helped to promote a system in which music would no longer be tied to a specific — and specifically analog — medium.

I don’t dispute Johnson’s assertion about digital music.  But on the matter of e-books and printed book piracy, I must respectfully disagree.  As I demonstrate in my book The Late Age of Print, especially in the chapters on e-books and Harry Potter, printed books have been going digital and coursing through file-trading circuits for years now.  Probably the biggest racket is in printed student textbooks, which, because of their egregious (captive audience) price, have ended up on any number of fly-by-night bit-torrent sites, such as Textbook Torrents, Rapidshare Textbooks, and others.  Here’s a link to good article from The Chronicle of Higher Edcuation about the former — now defunct — site, if you want to know more.

Popular printed books like Harry Potter also have been photographed or scanned and posted online.  This is exactly what happened when the final installment of the series, Harry Potter and the Deathly Hallows, was released in July 2007.  Images of pages began appearing on file-trading sites like Photobucket and The Pirate Bay even before the book was officially released!

And then there’s the thorny matter of academic course packs.  It used to be that educators would create anthologies consisting of photocopied book chapters and journal articles — all copyrighted materials — for their classes.  Usually the course packs would be created and sold by local copy shops.  Following the landmark 1991 Kinko’s decision, most of these shops sought permission to do so through the Copyright Clearance Center, which pays royalties to copyright holders.  But in an age of cheap, ubiquitous scanners, Adobe Acrobat, and password-protected course sites (usually hosted by academic libraries), the traditional course pack has become all but obsolete.  Today, educators assert the exception to the 1976 Copyright Act that stipulates the “fair use” of copyrighted materials for one-time classroom use.  Significantly, very few of these items are “born digital,” even if they may ultimately end up that way.

There’s an even broader argument to be made here, namely, that e-books arise precisely (although not simply) in response to publishers’ longstanding fears about the promiscuity of printed books and their content.  Way back in the 1930s, the publishing industry contracted with public relations doyen Edward L. Bernays to come up with a pejorative word for people who, by trading books with one another, supposedly deprived authors of their royalties.  (The term, “book sneak,” never really caught on.)  Then then there was the whole freak-out over photocopiers in the 1970s, which led to the creation of the Copyright Clearance Center and, shortly thereafter, to a host of lawsuits against copy shops.

There are many other examples like this that I could point to, but the question ultimately is this: given the mobility of printed books and their content, is it any surprise that book publishers would be interested in pursuing a technology — digitally rights-managed e-books — that would allow them to micromanage the whereabouts of book content?

So why haven’t e-books become even more popular than they already are?  The answer isn’t, “not enough printed book piracy.”  In fact, it’s exactly the opposite.

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