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News that Harvard University is the latest to join the growing revolt against the exorbitant pricing of academic journals caused something of a stir recently -- although it has been pointed out that its case would be stronger if it followed its own advice and made the Harvard Business Review open access, or at least cheaper.
But here's an area where Harvard, together with MIT, is being more pro-active in helping to make knowledge more widely available online:
EdX is a joint partnership between The Massachusetts Institute of Technology (MIT) and Harvard University to offer online learning to millions of people around the world. EdX will offer Harvard and MIT classes online for free. Through this partnership, the institutions aim to extend their collective reach to build a global community of online learners and to improve education for everyone.
EdX will build on both universities’ experience in offering online instructional content. The technological platform recently established by MITx, which will serve as the foundation for the new learning system, was designed to offer online versions of MIT courses featuring video lesson segments, embedded quizzes, immediate feedback, student-ranked questions and answers, online laboratories and student-paced learning. Certificates of mastery will be available for those who are motivated and able to demonstrate their knowledge of the course material.
MIT's MITx platform already offers some MIT courses online, and is open source:
EdX will release its learning platform as open-source software so it can be used by other universities and organizations that wish to host the platform themselves. Because the learning technology will be available as open-source software, other universities and individuals will be able to help edX improve and add features to the technology.
The hope is that other universities will join with Harvard and MIT to make EdX one of the primary platforms for online learning. Interestingly, it will also be used to research how people learn using digital technology -- and how it can be deployed more effectively:
MIT and Harvard will use the jointly operated edX platform to research how students learn and how technologies can facilitate effective teaching both on-campus and online. The edX platform will enable the study of which teaching methods and tools are most successful. The findings of this research will be used to inform how faculty use technology in their teaching, which will enhance the experience for students on campus and for the millions expected to take advantage of these new online offerings.
This looks like an important move for online learning, not least because of the scale of the financial support:
The initiative will be overseen by a not-for-profit organization based in Cambridge, Mass., to be owned and governed equally by the two universities. MIT and Harvard have committed to a combined $60 million ($30 million each) in institutional support, grants and philanthropy to launch the collaboration.
Those funds and the projects they will catalyze could boost efforts to make university courses more widely available, complementing the growing success of open access in opening up published materials.
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We keep hearing that these new business models and platforms really can't handle "big" projects. While part of the charm and power of these platforms is that they can fund smaller "long tail" projects that might never otherwise see the light of day, there's no reason that they can't do bigger projects as well. A few weeks ago, we told you about the Kickstarter campaign for the Pebble e-watch, which was the fastest growing Kickstarter project ever, surpassing $1 million in just 28 hours, and hitting $4.5 million by the time we got our post out.
Last week, the project surpassed $10 million and still had over a week to go. However, the folks behind the project had decided to cap the total number of watches that could be pre-sold via Kickstarter at a mere 85,000. So once that number was hit, they set the Kickstarter to show all the items sold out. While I could see some folks who were waiting towards the end get a little annoyed (thankfully, I got my order in a few days earlier), projects like this should at least open some eyes to the fact that Kickstarter is not just for small stuff. While some have argued that something like Kickstarter could never fund a Martin Scorcese film, remember Kickstarter is just three years old. If Scorcese set up an interesting project with cool tiers, I wouldn't be surprised to see it funded to massive levels.Permalink | Comments | Email This Story
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Nearly a year ago, we wrote about a somewhat "obscure" lawsuit concerning fair use at universities. We've been noting that, up in Canada, the courts and upcoming legislation are potentially clearing the field for universities to declare "fair dealing" on the use of works—but they are bizarrely failing to do so. In the US, however, Georgia State did assert its fair use rights over certain educational uses, leading to a complex situation in the courts. Georgia State was sued by some publishers, because of the use of "e-reserves" (content posted on websites for students to download). The university claimed fair use. The publishers (who had the lawsuit funded by the American Association of Publishers and the Copyright Clearance Center -- who helps collect fees for these kinds of things) argued that an older ruling about print shops not being able to print out coursepacks without clearing everything applied.
On Friday, the ruling came out, and it's a somewhat astounding 350 pages, as district court Judge Orinda Evans spent the time to meticulously go through every count of infringement in great detail to determine whether or not the university infringed. The summary version is that the publishers only won on 5 out of 99 counts. That certainly doesn't look very good for the publishers. However, digging into the details is where it gets interesting. I'd recommend reading both NY Law School's James Grimmelmann's analysis and Duke University's Kevin Smith's analysis.
There's a lot to dig into, but the quick summary is that it's mostly good, but there are still some significant problems with the ruling. Let's call out some highlights:
A bunch of the specific claims didn't even reach a fair use analysis because the judge rejected them for failure to prove they held the copyrights in question! This may seem like a basic point, but US law is pretty clear that the burden is on the plaintiff to prove they own the copyright (though, this is something that the US is trying to change under the leaked draft of the Trans Pacific Partnership agreement). The failure of the publishers to even be able to show they held the copyright is a pretty stunning flop.
Another batch of claimed infringements were dropped on the basis of de minimis copying because they were never downloaded by any students. This is an interesting interpretation of de minimis, though I'm not convinced it would hold up at a higher level if the case gets that far. James Grimmelmann's summary explains what happened here:
The court dismisses these from the lawsuit as de minimis, explaining that these uses by the University, while technical implicating the copyright owners’ exclusive rights, don’t affect the incentives for authors to create. This puts more teeth in the de minimis doctrine in copyright: it goes beyond the view that de minimis means “not substantially similar.” It also strengthens the argument that “internal use” copies never used to reach an to an audience that reads them for their content don’t infringe. Think, for example, of the HathiTrust’s archive of scans from Google Books.
When it gets to the rest, Judge Evans dutifully does the standard 4-factor "fair use" test on each and every case rather than broad brushing across the batch. While the four factor test is supposed to be used in fair use cases, I do always worry when judges view the fair use test entirely as a "formula." The law is pretty clear that while the four factor test should be considered, it need not be the only thing that is considered -- here, however, the judge just lines up each claim and runs it through the test.
Even more worrisome, is that the judge seems to get excessively formulaic in applying parts of the test. Specifically, the third factor, on the amount copied, leads the judge to come up with her own hard and fast rules, based on... well... that's not entirely clear. Here's what the judge decided:
Where a book is not divided into chapters or contains fewer than ten
chapters, unpaid copying of no more than 10% of the pages in the book
is permissible under factor three. The pages are counted as
previously set forth in this Order. In practical effect, this will
allow copying of about one chapter or its equivalent. Where a book
contains ten or more chapters, the unpaid copying of up to but no
more than one chapter (or its equivalent) will be permissible under
fair use factor three.
While there are some benefits to having a specific "rule," I'm not sure how this particular rule really matches with the intent and reasoning behind the fair use doctrine. If you copy two whole chapters in a book with 50 chapters, suddenly that goes against this factor, despite, percentage-wise, being less than copying 10% from a book with less than 10 chapters? Why the odd distinction?
The "good" news on this point, at least, is that while she created her own rules for the third factor, she flat out rejected the ridiculous "Classroom Guidelines" that had been set up in 1976 between the publishing industry and "certain representatives of the education establishment." Basically these were rules that, if followed, meant the publishers wouldn't sue. However, the judge finds them somewhat silly, and with no basis in the law, including things like the claim that a professor can only claim fair use if they use a work for one semester (requiring them to license it for future use).
Also troubling is the interpretation on the fourth factor -- "the effect on the market," -- which is often considered the most important factor (even if some reject this claim). Some courts have argued that this factor often depends on whether the copyright holder is offering a license for the work or not -- and Judge Evans buys into that argument here. Basically, the result on this factor depends, almost entirely, on whether or not the publisher is offering a license for the work. Again, Grimmelmann points out that there's good and bad here. This does, at the very least, suggest that libraries can make use of orphan works, since there won't be any active licenses available for those works. But, more troubling, is that it doesn't look at wider market factors, including alternatives to licensing (i.e., not obtaining the work, or obtaining it through other means, such as by photocopying). You shouldn't automatically assume that if a publisher offers a license, not licensing it automatically means the publisher loses out on revenue. But the judge seems to make exactly that assumption here.
On the other two factors, the judge reasonably says that the fair use factors clearly favor fair use: the "purpose" of the use being for "nonprofit, educational purposes of teaching and scholarship," and the nature of the works being "informational." That's good, and is applied across the board.
On the whole, the publishers certainly won't be happy that they lost on so many claims in the case. And there are some good points on fair use in there -- but as described above, many of the statements by the judge are a bit worrisome, and could lead to problems for future fair use claims in situations where a fresh analysis might seem like it should be fair use.
All that said, it seems highly likely that the publishers are going to appeal this, and we could be bouncing around the court system for years before any of this is finalized.Permalink | Comments | Email This Story
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