David Wiley writes:

You have to admit that some of the things the publishers are working on are both cooler and better than almost everything that currently exists in the OER space. Can you name a single OER project that does assessment at all (and I don’t mean PDFs of quizzes)? Can you name one that does diagnostic assessment or handles mastery in any meaningful way? We’ve narrowed the entire field of OER down to CMU OLI, Khan Academy, and possibly Thrun’s new stuff. Now, can you think of one of these three that openly licenses their assessments and the engines they run them on? No.

Open education currently has no response to the coming wave of diagnostic, adaptive products coming from the publishers. To the best of my knowledge there is no one really working on next gen OER – OER that are interactive, simulative, really rich with multimedia AND combined with OAR that drive diagnosis, remediation, and adaptation. There’s certainly no one funding next gen OER. And believe me – if it took $100M to get the field to where it currently stands in terms of relatively static openly licensed content, it will take at least that much investment again over the next decade for the field to do something truly next gen.

Because this stuff costs so much to do, if no one steps up to the funding plate the entire field is at serious risk. Much has been written about 2012 being “the year of OER.” Let’s hope it’s not the year OER peaks. We need brains, energy, and funding on the next gen OER/OAR problem NOW. [Emphasis added.]

I have long argued that for-profit companies are neither the mortal enemies nor the white knights of education. In this particular case, given the heavy lift involved in funding this sort of effort relative to the resources available in the academic and philanthropic communities—and David is in a position to know—I think it is important to think about for-profit entities in roles that are potentially cooperative with rather than in opposition to OERs. We should be asking the following questions:

• What sort of commercial ventures could prosper in an ecosystem where quality educational resources are abundant and free rather than scarce and expensive?
• Specifically, what sorts of ventures could make money ethically by adding real value in the context of abundant and free educational resources?
• What are the barriers preventing those ventures (either existing or yet-to-be-formed) from helping to create such an ecosystem?
• Who are the right people and what are the right institutions to forge the relationships that could foster such an ecosystem?

Possibly related posts:

1. Four Key Questions for the Apple Education Announcement There is growing buzz online about Apple’s planned media event...

OER Funding: Ask the Right Questions by %%AUTHORINK%% on e-Literate

Scott Leslie has a good post up ruminating on the moving target of open textbooks which reminded me that I have long intended to write a follow-up to an exchange that he, I, and Rob Abel had in the comments section of a post a I wrote a while back. Scott lamented that the Washington State Board for Community and Technical Colleges was releasing its open course content in IMS Common Cartridge format, which seemed to him to be not so easily accessible or universally usable as one might like. I wrote in response,

Fundamentally, I don’t believe in cartridges. I don’t believe in forking a copy of a digital resource and stuffing it into another system. It’s bad for a variety of reasons, including but not limited to the implementation challenges that Scott ran into with Moodle (although it’s fair to say that some LMSs handle CC import better than others). Common Cartridge made more sense 5 or 10 years ago, but it’s late to the game and is ultimately destined to be eclipsed by in-place APIs, including but not limited to IMS LTI. (By the way, I’m not so sure it’s such a good idea to let Google own our integration API either.)

Unsurprisingly, Rob Abel, as CEO of the IMS, took issue:

If there is agreement that CC helps with the issue of content in an LMS then, well in your scenario the content is inside the publisher “LMS” (or equivalent).

Can I tailor it? Can I put things in there – like a syllabus – and get it out? If I’m the student and I create something in there can I get it out? Can I mix and match with other publisher materials? Can I archive that mixing for next term? Can I share what I did with my faculty peers who might want to learn from it? Can I create assessments in there and then use them somewhere else or just put them somewhere so that I can use them in the future?

Common Cartridge – or something like it – helps solve those issues. Fits right into the topic of openness. But, most importantly, in the digital education age we need to make digital education easy for the faculty and the students. Otherwise there won’t be a digital education age 

Perhaps a mixture of OER and publisher proprietary stuff might be a solution. IMHO, some stuff needs to be tailored, remixed, moved in, and moved out. Doesn’t matter whether it’s a publisher platform or an LMS. Faculty want their stuff. Students want their stuff. Publishers need to help them, not thwart them.

I said that the binary choice Rob was offering up wasn’t the right one and promised to elaborate in a future post. Here, at last, is that response.

Let me start by reviewing an argument that I have made here before, which is that there should only ever be one copy of a learning resource except under very limited and specific circumstances. In this era of iframes, you can embed content pretty much wherever you want. By keeping the single canonical copy at one URL and surfacing it where it is needed (as opposed to copying it), you both maintain access to the most updated version from the authoritative source and preserve the ability to do in-depth usage and learning analytics. Who is using this content to learn what in which contexts? If you have a thousand copies of the same resource floating around, you can’t effectively aggregate this data (especially if you don’t know whether or how the content has been altered in those copies). There are only two circumstances under which it makes sense to make a second copy of a web-based learning resource: (1) you want to cache it locally for access in offline or bandwidth-constrained environments, or (2) you deliberately intend to fork the content and create a new version of it. And the first case should be addressed as a caching problem rather than a copying problem.

We have a number of formats today that are designed to take web-based resources and organize them for a particular type of consumption. Common Cartridge is one such format. It provides the content wrapped in metadata so the LMS knows where to put it. EPUB and the .ibooks derivative are other examples; they pull together disparate web-native resources into a book-like sequence and user experience. That’s fine. I have no problem with it. My problem is when those resources are copied and stored locally for no good reason. If you want to use one of these formats as a metadata wrapper to surface the remotely stored content within a context and user experience that makes it most useful, then yay. Use iframes or some similar technology and wrap them in the metadata you need. But don’t make local copies of the resources unless you have good reason to do so.

I would argue that efforts like the one by Washington State Board for Community and Technical Colleges should make the OER content available in canonical copies on their servers as plain old web pages and then provide cartridges that include pointers to those copies. Since one of the values of OERs is being able to remix, then maybe Common Cartridge should be extended to include an option to pull down the remote resource for local editing, constrained by the particular machine-readable license of that remote content. (I actually have an idea that would allow remixing but still maintain the “chain of custody” to the original resource for the purpose of learning analytics, but that’s another post for another time.) But the decision to download should be a deliberate one, not a default one, and all resources should be available on the naked web and not locked up by default in some metadata container that you have to crack open if you want access to the content.

Possibly related posts:

1. Rockin' Content Management So, I’ve been keeping an eye lately on Alfresco, a...
2. Sakai 3: The Benefits of 'Everything is Content' One of the more radical departures that Sakai 3 makes...
3. Separating Content from Presentation for Pedagogy and Reusability A post on the OpenACS discussion board clued me in...
4. A Guide To Open Content Licenses The Piet Zwart Institute has published a fairly comprehensive online...
5. e-Portfolios and Personal Content Management–Rip, Mix, Burn Last week I had the pleasure of spending most of...

When It Comes to Content, Say “Yes” to Wrappers But “No” to Containers by %%AUTHORINK%% on e-Literate

Along with others, I have written several times over the past 12 months here, here, here and here about the significant changes occurring in the educational LMS market. In my opinion, when we look back on market changes, 2011 will stand out as the year when the LMS market passed the point of no return and changed forever. What we are now seeing are some real signs of what the future market will look like, and the actual definition of the market is changing. We are going from an enterprise LMS market to a learning platform market.

What I mean by ‘enterprise LMS’ is the legacy model of the LMS as a smaller, academically-facing version of the ERP. This model was based on monolithic, full-featured software systems that could be hosted on-site or by a managed hosting provider. A ‘learning platform’, by contrast, does not contain all the features in itself and is based on cloud computing – multi-tenant, software as a service (SaaS).

The 2011 EDUCAUSE event captured the zeitgeist of the changes, as it seemed most of the buzz at the conference centered on new LMS solutions and paradigm changes. Instructure made their debut at the conference, Pearson’s OpenClass was announced, Blackboard announced a new move in open content focused on CourseSites, and Cengage demonstrated their MindTap platform. Rather than slowing since EDUCAUSE, we have seen several additional announcements in the past three months.

• CourseKit was released as a free learning platform targeted at faculty adoption.
• Apple’s iTunesU app was announced alongside the iBooks / Author textbook offering, extending iTunesU as an iPad-based learning platform.
• Facebook made a move within its higher education roots, starting a pilot program with Groups for Universities.

In my post from last summer, I characterized the changes we were starting to see, but with all of the recent changes, I think it would be useful to extend the first two trends mentioned.

The question is, what will the LMS market that is emerging from these changes look like?  No one can know for sure what will happen over the next 3 – 5 years, but I do think there are some key trends that are worth understanding.

• The market is more competitive, with more options, than it has been for years.  Instructure is a real player that has shown that it can win against established LMS vendors with big wins in Utah and at Auburn.  LoudCloud has new clients at CEC, Grand Canyon U and an unreported win at a public state university.  BrainHoney won at BYU.  Pearson LearningStudio has major wins at Arizona State and Columbia online programs.  Desire2Learn has roughly doubled in size in the past year.  Moodle and Sakai, including through providers such as MoodleRooms and rSmart and Unicon, continue their impressive wins in the market.

• Related to the above, there is a trend towards software as a service (SaaS) models for new LMS solutions.  The SaaS model offers some compelling advantages in terms of deployment time and ability to mine and report transactional data that might not be possible with other approaches.  SaaS is not a panacea, but this is a growing trend in the LMS market.

The trend towards SaaS could perhaps more accurately be described as the default model now for new offerings. In the LMS market from just short two years ago, the default model was enterprise LMS. The only exception was Pearson’s LearningStudio (the artist formerly known as eCollege.com). Today, every single new offering mentioned above is SaaS-based. Apple’s iTunesU app is a mobile app, but the content is served from a behind-the-scenes SaaS platform.

Perhaps more significantly – there has not been a new enterprise LMS created since around 2004. Yes, each legacy LMS provider has major new releases available, but the one exception you could argue is that Sakai 3 is a new LMS and not just an upgrade from Sakai 2. Other than this exception, every new LMS solution to enter the market in the past two years has been based on a learning platform. I doubt we will see any more enterprise LMS solutions created given the cost-benefits of creating SaaS offerings.

Another trend that is becoming apparent is that many of the new offerings are not attempting to fully replace the legacy LMS, at least all at once. Rather than competing with all of the possible features that are typical in enterprise LMS solutions, the new platforms appear to target specific institutional problems and offer only the features needed. Perhaps inspired by Apple’s success in offering elegant solutions at the expense of offering all the features, or perhaps inspired by Clayton Christensen’s disruptive innovation model, the new learning platform providers are perfectly willing to say ‘no – we just don’t offer this feature or that feature’.

My colleague Jim Ritchey has written about the changes that SaaS models are starting to have in the higher education ERP market, put in context of the Datatel+SGHE merger. His key point:

Therefore the challenge for the vendors is how to get the ERP, with its slow development and implementation cycles, to provide the solutions to the new needs of the institution.

In the LMS market, the new answer to this question – how to adapt and respond to new institutional needs – appears to be based on learning platforms.

Possibly related posts:

1. What Platform Do You Use for (Pure) Distance Learning? I’m doing a little research and could use your help....
2. Oracle's New Academic Enterprise White Paper The product group I’m in at Oracle (Academic Enterprise Solutions,...
3. Zimbra: What a Mashup-Enabled Enterprise App Looks Like Phew. Enough with the Apple stuff. I actually still have...
4. Enterprise vs. Internet World Views in Educational Tool Design There’s an excellent (albeit necessarily technical) conversation about implementing OKI...
5. Sakai Foundation Board Platform: Vision for the Technology I am honored to announce that I have been nominated...

Farewell to the Enterprise LMS, Greetings to the Learning Platform by %%AUTHORINK%% on e-Literate

The learning management system upstart Instructure is unveiling Canvas K-12 today, a version of its platform aimed — as the name suggests — for the K-12 level. The company says that it’s already had over a dozen school districts adopt Canvas, even before this roll-out of a specially designed LMS.

Traditionally the LMS has been something implemented primarily by colleges and universities, but as more and more K-12 schools move to online learning and digital curriculum, there’s a growing demand at that level. It’s a hot market, and according to research published in December 2011 by Simba Information, “the LMS segment is expected to grow at a compound annual rate of 7.3%, reaching $377 million by the 2014-2015 school year.”

As such, it’s hardly surprising to see some of the big education companies make their move to offer schools these services. The acquisition of Edline by Blackboard last fall made it clear that the learning management giant was serious about its push into that market.

But as the Simba research suggests, it’s a market that’s still up for grabs. While Blackboard still holds a little over half of the higher ed LMS market, Blackboard, Pearson and Moodle altogether share only about 30% of the K-12 market.

That provides an interesting opportunity for Instructure, which officially launched its cloud-based LMS this time last year.

Its new K-12 offering includes several new features aimed at this level: it contains Common Core standards and objectives so that it’s easy to align assignments with them. There are also analytics for districts, schools, teachers and parents to be able to assess student progress. And that parent piece is particularly important as parents will have access to their child’s information, and just as importantly, have access to Instructure’s messaging system — so you can get an SMS when your child doesn’t turn in a homework assignment or an email with the week’s spelling list and so on.

Despite competition from some of the big LMS players, Instructure has made some inroads into higher education. Can it do the same at the K-12 level? When I spoke to CEO and founder Josh Coates yesterday, he noted that the company’s recent trip to FETC made them realize that a lot of K-12 teachers are fairly unfamiliar with the idea of what an LMS even is. (That’s something that should make us ask if an LMS is even necessary.) Of course, Instructure isn’t selling to teachers (although it does offer a free product that any teacher can adopt). It’s selling to districts.

But that the LMS is a new(ish) thing to the K-12 level might just work in Instructure’s favor, even if the startup remains a relative unknown. If schools choose to adopt an LMS because of their move online, then a Web-friendly, user-friendly, cloud-based tool (with easy Google Apps for Edu integration) might just fit the bill. That is, if the price is right, something that makes the future of that K-12 market — what with shrinking K-12 budgets and options for free and low-cost alternatives (“apps” not “systems”) — more than a little uncertain.

Possibly related posts:

1. Sakai 3: What It Is and When To Move To It I have been getting a lot of questions from the...
2. ANGEL's Open Source Move ANGEL Learning has announced that they have incorporated TiddlyWiki into...
3. What Makes It Great? When I was in college, I was very fortunate to...
4. Instructure and Security Testing Instructure has had a very interesting reaction to the news...
5. Instructure Canvas: A New LMS Entrant We’re making progress on getting the Sakai conference keynote videos...

Instructure Makes Its Move into the K-12 Market by %%AUTHORINK%% on e-Literate

Unsurprisingly, there has been a lot of good coverage of the Apple announcements already. I’m partial to Phil Hill’s pre- and post-announcement write-ups here at e-Literate as well as Audrey Watters’ analysis at Hack Education. Nevertheless, I do think there are a few more things that can be said about the announcement.

From a functional perspective, there really isn’t anything new about the e-textbooks that Apple is touting. Pretty much all of the functionality can be found in one, several, or even all of the entrants in the product category that I have occasionally referred to as “nextbooks,” e.g., Inkling, Kno, MIYO, DynamicBooks, and my own employer’s MindTap product. In fact, as I’ll go into in a later post, Apple’s entrants are missing some features that are critical to this product category. But the facts of the product announcement alone don’t tell the whole story. I don’t think you can really tease out the full impact without understanding the company’s commercial goals—particularly when the company is Apple, which has a history of moving markets in ways that other companies can only dream of. In the next couple of posts, I’m going to tease out what I believe Apple is trying to accomplish for itself, and then use that context to explore where their efforts are likely to have progressive effects on education and where there are gaps or problems.

Let’s start with Apple’s prime motivation. They want to kill paper.

In the oft-quoted passage from Walter Isaacson’s biography of Steve Jobs, it is clear that Jobs wanted to displace textbooks with digital content on an iPad:

“In fact Jobs had his sights set on textbooks as the next business he wanted to transform. He believed it was an $8 billion a year industry ripe for digital destruction. He was also struck by the fact that many schools, for security reasons, don’t have lockers, so kids have to lug a heavy backpack around. ‘The iPad would solve that,’ he said. His idea was to hire great textbook writers to create digital versions, and make them a feature of the iPad. In addition, he held meetings with the major publishers, such as Pearson Education, about partnering with Apple. ‘The process by which states certify textbooks is corrupt,’ he said. ‘But if we can make the textbooks free, and they come with the iPad, then they don’t have to be certified. The crappy economy at the state level will last for a decade, and we can give them an opportunity to circumvent that whole process and save money.’ “

Let’s be clear about what this vision does and does not encompass. This isn’t about radically changing the way our education system works. It isn’t about improving teaching and learning. Not directly, anyway. It’s about freeing children from the weight of the backpack and freeing teachers and schools from the prescriptions of state textbook selection boards. Above all, it’s about selling iPads. Apple wants every child to be required to have an iPad for school, and the way they will attempt to accomplish that is by making the iPad the source of all curricular content, displacing the paper textbook in the process.

But there’s a problem. Every couple of months, another study or article comes out saying students don’t like e-textbooks. If you read a couple of these pieces, you’ll quickly see there are two common themes: loss of functionality and cost. Students want to be able to do what they can do in their print books, such as highlighting and making margin notes. The e-textbooks the students in these studies are getting, by and large, are inferior copies of print. Think PDF. And, of course, the number one affordance that college kids miss about their physical textbook is the ability to resell it to recoup some of their costs. So if Apple wants to displace paper, it has to close the functionality gap, lower the price, and add some unique features that make the product attractive. They have certainly narrowed or closed the functionality gap and demonstrated some compelling digital-only features. (Cost is more complicated; I’ll get to that shortly.) But again, none of these features are new to digital textbooks. So what is Apple attempting to accomplish by weighing in this way?

Textbook publishers have a chicken-and-egg problem. While they are building out some “born digital” textbook replacement products, there’s a limit to the size of the bet they can make as long as they have to address the needs of students who don’t have the right device, i.e., a decent tablet. Right now, that’s most of them. As long as that is the case, publishers are going to be inclined to stay with their current (cumbersome) print-optimized production processes and try to add digital features as they can. The publishers don’t feel they have the clout to drive the transition to digital, so they are constrained by whatever the market mix is at the moment.

Apple is different. First of all, unlike the textbook publishers, they get zero revenues from analog print products and have no installed base of textbook users to support. They can drive hard toward tablets and it’s all upside for them. Second, Apple is a taste maker like no other technology company in human history. They can raise the profile of these innovations. They can drive demand. They can make digital textbooks cool.

Just stop for second. Think about that.

Also, by releasing the authoring tools, Apple is trying to get around the whole print-first production apparatus at traditional publishers. They’re supplying a tool that makes it easy to create born-digital textbooks. And by releasing the tool for free, the implicit threat is that if the traditional publishers don’t come on board, others will.  Apple is attempting to accelerate the creation of these (relatively) higher-value eBooks by stimulating demand and lowering barriers to entry on the production side.

But even that is not enough. That is why I expect several announcements to follow this one.

What’s Next?

Apple hasn’t yet cracked the affordability problem with these textbook offerings. Remember, the pricing is for K12 books. Typically, those books will sell to schools for around $75 and will be used for about five years. Do the math. That’s $15/year, or roughly what these iTextbooks are being sold for on a per-student basis. Apple needs to make this more affordable. As a first step in that direction, I think we can count on an announcement of a significantly cheaper iPad some time between now and September. This strategy just doesn’t make sense at a $500 price point. But if Apple were able to get the price down to Kindle Fire territory, that would change the dynamic considerably. Since these books take heavy advantage of multimedia and really want a larger screen, I don’t expect Apple to save money by coming to market with a smaller screen. They are much more likely to take the same strategy that they have with the iPhone, i.e., drop the price substantially on the current model when the new one comes out.

Then there’s the challenge of administering all these iPads in a school environment. Remember, Apple is targeting K12 first. It’s not really clear whether Apple’s strategy is to get schools or parents to purchase the devices. If the former, then the company will have to release administrative software that lets schools find the iPads, control what’s been installed on them, monitor what students are doing on them, and so on.

But all of this still doesn’t get us to Steve Jobs’ original vision. Remember what he said:

 ’The process by which states certify textbooks is corrupt,’ he said. ‘But if we can make the textbooks free, and they come with the iPad, then they don’t have to be certified. The crappy economy at the state level will last for a decade, and we can give them an opportunity to circumvent that whole process and save money.’

Let’s say that Apple is successful at creating a market and, in a few years, has a rich selection of textbooks in Bookstore that span the entire K12 curriculum. What’s their next move? Think Netflix. The school pays a flat subscription in order for the students to access whatever textbooks they need. If done right, it is possible that this structure could circumvent the textbook approval boards, since the schools are not specifically buying any particular textbooks. (I have a feeling that state boards won’t give up control so easily, but that’s another post for another day.) And Apple controls pricing.

There is no question that Apple wants to control the revenue stream from the textbooks in addition to selling the iPads. Much has been made of the fact that iBooks Author doesn’t quite publish to the EPUB standard and has a EULA that requires authors sell any products that were created with the tool through Apple and give Apple a cut of the revenues. They could have charged $5 or $10 for the tool and sold it straight up without the restrictions as part of iWork. But from Apple’s commercial perspective, this isn’t fundamentally about capturing the revenue from unleashing creativity for the creation of educational content. It’s about capturing the revenue stream from the consumption of educational content. That’s a very different business driver that will result in very different product development plans, both now and down the road.

Obviously, there’s a lot to unpack here regarding the implications for education. In my next post, I’ll write about how this approach shapes and limits the vision for what textbooks (or their digital replacements) can be.

Possibly related posts:

1. Apple Visit, Day 1 This is part 1 of a series of posts documenting...
2. Apple's Stake in Higher Education This is part 3 of a series of posts documenting...
3. Apple Trip, Day 2–the Warm-up This is part 2 of a series of posts documenting...
4. Why Apple May Beat Microsoft to Workflow Learning The evolution of workflow learning follows the evolution of workflow...
5. More on Apple's Workflow Taxonomy More good stuff: The prerelease version of Automator currently comes...

Apple and Textbooks, Part 1: The War on Paper by %%AUTHORINK%% on e-Literate

On Friday January 20, two helicopters and “76 police staff, including armed offenders squad members” raided the home of Kim Dotcom north of Auckland, New Zealand. He was sought by the U.S. for copyright infringement and racketeering under an indictment from the U.S. District Court of Virginia, Eastern Division. Three associates were also arrested.

The issues of whether links to documents can be copyright infringement, acts that preclude DMCA safe harbor, and barring legitimate users from their files may be resolved as two legal teams—the U.S. Department of Justice and a yet to be named legal team representing “the Mega Conspiracy” in the U.S.—clash in Virginia These are issues that will affect colleges and universities because of the similarity between these sites and the way some students use the Internet.

Under the indictment the U.S. seized, without notice, “The following domain names: Megastuff.co; Megaworld.com; Megaclicks.co; Megastuff.info; Megaclicks.org; Megaworld.mobi; Megastuff.org; Megaclick.us; ageclick.com; HDmegaporn.com; Megavkdeo.com; Megaupload.com; Megaupload.org; Megarotic.com; Megaclick.com; Megavideo.com; Megavideoclips.com; Megaporn.com.” Kim Dotcom is associated with the website called Megaupload, based in Hong Kong. A Palo Alto Networks study found 57% of their sample or organizations use Megaupload.

The 72 page indictment describes the processes and pricing in detail to support its conspiracy argument. The indictment is available here.

The New Zealand police made clear “The men have not been charged by police in New Zealand and are being held in custody on the warrant issued by the U.S. Government.” This is similar to the U.S. request to extradite Richard O’Dwyer, a student at Sheffield Hallam University in the U.K., even though most believe that his website was legal under British law.

The New Zealand police completed their search on Saturday “seizing assets such as luxury cars and artwork, as well as computers and documents as evidence.” The New Zealand Herald reported that Detective Inspector Grant Wormald “confirmed that the team of four FBI staff working on the searches would also continue to do so ‘for the next few days.’”

This case again brings up two issues. What actions must a website take to identify and remediate materials infringing copyright? Mega argues it provided a “cyberlocker” which is a private data storage provider. If there is infringing content, Mega would be unaware of it since uploaded files are not reviewed for copyright infringement (which for some users would be in invasion of privacy). This is similar to college and university websites that are unaware of all of the content stored by students and faculty. The U.S. argues a website should know if there is infringing content.

This also brings up the issue of whether links to copyrighted files are themselves copyright infringement as the U.S. argued in the U.K.

In an interview with CNET, Ira Rothken, an attorney [representing those arrested] well known in the tech sector for defending Web sites accused of copyright violations, said that his clients “are assembling a team of crack copyright, criminal and technology attorneys to defend them in courts across the globe.”

“There are significant issues of due process,” Rothken said early this morning. “The government has taken down one of the world’s largest storage providers and have done so without giving MegaUpload an opportunity to be heard in court.”

Mark Lemley, Davis S. Levine and David G. Post commented on due process in their article “Don’t Break the Internet” published in the Stanford Law Review.

The procedures [this month being implemented by the courts without the referenced SOPA and PIPA legislation] fail this fundamental constitutional test. Websites can be “completely removed from circulation”—rendered un- reachable by, and invisible to, Internet users in the United States and abroad— immediately upon application by the government, without any reasonable opportunity for the owner or operator of the website in question to be heard or to present evidence on his or her own behalf..

Eric Goldman, University of Santa Clara Law School, commenting on Deckers v Liyanghua wrote:

Ex parte orders regarding foreign alleged infringers are out of control. Without sufficient regulation and without any adversarial pushback, rightsowners have learned that they can ask for ridiculous relief on an ex parte basis and get a judge to sign off on most or all of it. It’s clear that rightsowners are asking for way more than the law allows, but judges seem to acquiesce. The results are two fold:

1) the rightsowners are taking control over third-party domain names on an ex parte basis and with questionable notice given to the domain name registrants

2) worse (IMO), judges are issuing orders that purport to bind third-party non-litigants, such as domain name registrars, search engines and shopbots.

Although few stored their files on the Megaupload computers, seizing the domain names meant the users storing this work files would not have access unless they knew how to access their files without a URL. The FBI was silent on the issue.

Using “cyber lockers” to store personal files carries a risk for the unaware.

Subsequently TorrentFreak reported: “Filesonic, one of the Internet’s leading cyberlocker services, has taken some drastic measures following the Megaupload shutdown and arrests last week. … the site has disabled all sharing functionality, leaving users only with access to their own files.” The site is among the top 10 file-sharing sites on the Internet, with a quarter-billion page views a month.

These actions suggests colleges and universities consider making their faculty and students aware their domain name can be seized without notice eliminating links to websites content.  It may be helpful to suggest faculty and students to store critical files on personal storage devices.

Although losing a domain name should be rare, copyright owners may disagree.

Possibly related posts:

1. Search, Copyright, and Course Pack Affordances I’m still very much interested in the idea of creating...
2. Blackboard Files Patent Infringement Suit Against Desire2Learn in Canada Once again, Jeff Bohrer gets the scoop. (Add this guy...
3. Blackboard, Inc. Sued for Patent Infringement A company called TechRadium is suing Blackboard in East Texas...
4. Desire2Learn Strikes Back Desire2Learn filed their response to Blackboard’s infringement suit, and they...
5. Blackboard's Patent FAQ #2: The Empire Strikes Back Thanks to Al Essa for discovering Blackboard’s latest FAQ on...

U.S. Copyright Infringement – U.S. Strikes in New Zealand by %%AUTHORINK%% on e-Literate

On January 13, a UK magistrate ruled a 23-year-old student can be extradited to the United States for running a website posting links to pirated TV shows and films; this despite significant doubts over whether such sites break any UK laws. He has become the “guinea pig” of expansive U.S. justice.

About four years ago Richard O’Dwyer, a computing student at Sheffield Hallam University, began a website registered as TVSHACK.net. It “posted links to pirated material. It did not directly host any files, which meant, according to the student’s lawyers, that it acted as little more than a Google-type search engine and did not breach copyright.” The US Immigration and Customs Enforcement (ICE) seized the domain name in July 2010 and subsequently TVSHACK.cc in November. (Seizure must be challenged with ten business days, difficult for someone outside the U.S.).

The defence team pointed out that the only UK prosecution of a similar site, TV-Links, ended last year with the case being thrown out. [In Europe, copyright infringement requires that the copyrighted material themselves be hosted on the website in question.] O’Dwyer has never been to the U.S. In his case, UK authorities did not attempt to prosecute for copyright infringement. The U.S. Department of Justice argues the U.S. has world-wide jurisdiction over all .com and .net domain registrations. Both registries are operated by Verisign under contract with the U.S. Department of Commerce’s National Telecommunications and Information Administration. Verisign is based in Virginia.

In July, ICE’s “assistant deputy director told the Guardian that ICE would now actively pursue websites similar to TVShack even if their only connection to the US was a website address ending in .com or .net.” Those familiar with the operation of the Internet know that traffic between two U.K. websites would not flow through the U.S. The domain names—TVShack.net for example—would yield only an Internet Protocol numeric address that determines routing of the message traffic.

In addition to arguing that registration of a domain name in the U.S. is sufficient to give jurisdiction, ICE also argued jurisdiction because the referenced materials had a U.S. copyright. Unlike the U.S. interpretation of the law, an index site—one that refers to rather than contains material—does not violate European law. In a similar case:

Judge Ticehurst gave his judgment, announcing that TV-Links had won their case. He ruled in detail for the first time in a Crown Court in relation to Section 17 of the European Commerce Directive 2000, stating that Section 17 indeed applied and afforded TV-Links a complete defense in criminal proceedings in England and Wales for their linking to other web sites. In a nutshell and to coin a familiar phrase, the site was deemed a mere conduit of information

But on January 13, the UK district judge, Quentin Purdy, ruled that O’Dwyer should nonetheless face trial in the U.S. “There are said to be direct consequences of criminal activity by Richard O’Dwyer in the USA, albeit by him never leaving the north of England,” Purdy said. “Such a state of affairs does not demand a trial here if the competent UK authorities decline to act, and does, in my judgment, permit one in the USA.”

Now the extradition treaty itself has been criticized. The Daily Mail reported:

Former Liberal Democrat leader Sir Menzies Campbell yesterday attacked efforts by the U.S. to extradite a British computer student for trial.

The QC said the extradition treaty between Britain and America was “never intended” for people like Richard O’Dwyer, whose offences are not even a crime in this country.

Sir Menzies’ comments have extra weight because he is leading a review of the UK’s extradition arrangements on behalf of Liberal Democrat leader Nick Clegg.

The U.S. approach may have some unintended consequences:

• Websites may re-register outside U.S. jurisdiction and practices, especially when, as in the UK, indexing sites are not illegal. There already are examples.
• Websites that do provide copyrighted materials—Bit Torrent sites are estimated to provide 50% of movies and music subject to copyright—will begin to encrypt these transmissions. Early this month Torrent Privacy was introduced. The software addition permits any Bit Torrent site to encrypt their transmissions. The software uses the same encryption technology and level of security during transmission typical of websites that handle financial transactions, including ordering goods.
• There is now are conflicts between U.S. law and the provisions of U.S. extradition treaties as practiced and the European Union Directives on electronic commerce, copyrights in the information society, enforcement of intellectual property rights and processing of personal data and the privacy in the electronic communications sector taken collectively.
• The O’Dwyer case may be motivation for countries to review their free trade agreements and extradition treaties with the U.S. The protection of U.S. intellectual property has been a major provision of recent free trade agreements with Panama, Columbia, and Korea.

U.S. Internet Domain Registries have become an enforcement agent. In a December Intellectual Property Magazine interview Verisign’s Pat Kane said: “I think the registry operators will always have to live within the laws of the jurisdiction in which they operate in. … When it comes to content take down, the reality is that the registry operator doesn’t end up taking down the content. We basically remove a route that gets to that content, and if you want to have real effectiveness from a take down it really must go to the hosting company. For a lot of websites out there, there are multiple routes than go through multiple top-level domains.” He was careful to say that “we don’t identify [infringing] content and we don’t act upon content.”

Germany has taken a different path to protect intellectual property. Indexing is not a crime. The copyright holder first identifies specific infringement, and then the copyright holder may seek a reasonable license fee. For the major U.S. studios this fee has been between 500 and 1000 Euros or US$ 650-1,300 (unlike the multi-million dollars claims in the U.S.) The typical response has been to pay the license fee. This avoids the frequent intense enforcement and litigation found in the U.S.

Most U.S. colleges and universities have domain names registered with EDUCAUSE using .edu as their top-level domain. EDUCAUSE operates the education domain under an agreement with the U.S. Department of Commerce. On September 11 of this year it was extended through 2016. EDUCAUSE is subject to the same enforcement actions as Verisign.

Internet search providers and higher education are vulnerable to demands for enforcement. All of these websites have, intentionally or not, material subject to copyright. Faculty and students, intentionally or not, may post materials subject to copyright. A copyright holder can seek to “take down” a site that, under current U.S. practice, only points to a source. For example a posted syllabus can point to copyrighted articles, books, movies, audio, and even, under U.S. law, blogs. Institutions need to have a way of removing content and links to external websites before court action seizes the domain name and deletes references to the site by U.S. based search engines.

.

Possibly related posts:

1. More on RSS, the Power Law, and Blogger Sites Reader Alan Levine (of MLX and cogdogblog fame) writes in...
2. All 44 Blackboard Patent Claims Invalidated by USPTO This just in: On March 25, the U.S. Patent &...
3. Court Re-affirms Invalidation of First 35 Blackboard Patent Claims This just in from the D2L patent blog: On August...
4. Moodlerooms and the Cambridge Global Grid for Learning I know it’s been a little quiet here on e-Literate...
5. Global Trends in Education Costs? I got into an interesting discussion on Twitter with Rosa...

U.S. Claims Global Jurisdiction of .net and .com Web Sites: Is .edu Next? by %%AUTHORINK%% on e-Literate

In a recent post I offered four key questions for the Apple Education Announcement held today (Jan 19th). Now that the event is over and the blogosphere is responding, I thought it would be useful to answer those four questions. Once I’ve had time to digest all the information coming out, I’ll post more of an analysis.

1. Regarding textbook content, will the model follow iTunes, iBooks, or Amazon’s Kindle Self-Publishing?

The answer to this question is that we have a new hybrid model that attempts to takes elements from all three models mentioned in the question, at least for the K-12 market that was the focus of initial efforts.

• Like iTunes, it places an affordable maximum price of $14.99.
• Like iBooks, it allows the content creator to set its price (although within the $0.00 to $14.99 range).
• Like Amazon’s Kindle Self-Publishing, it democratizes textbook creation and distribution, providing an attractive path that could avoid traditional textbook publishers.

UPDATE: From a new post at TheNextWeb, there is a very important paragraph that indicates the publisher partnerships are tenuous.

McGraw-Hill CEO Terry McGraw told Peter Kafka of All Things D that the $15 mark was ‘pilot pricing’, which would indicate that it hoped to raise the price at some point. Apple’s Eddy Cue had a completely different take on it, telling Kafka that “This isn’t pilot pricing, all of our books will be $14.99.”

2. Will iTunesU support OER content without artificial restrictions?

Although there are still some open questions, Apple appeared to sidestep the whole OER movement. However, the answer to this question is no – all content is targeted for the iPad, and iBooks does have digital rights management (DRM) applied to all content.

The caveat here is the new iTunesU app that could allow authors to embed free OER content. That is tied to the iPad device, but it avoids DRM restrictions.

3. Will the content consumption model be explicitly tied to the iPad?

A simple, understated answer here – YES, YES and YES. The iPad is the whole centerpiece of Apple’s updated education strategy. iBook Author, iBooks, and iTunesU app are all based on iPad consumption. iBook Author runs on a Mac, but the output is only for iPad.

4. Will Apple transform iTunesU to go beyond content distribution and expand the learning platform?

The clear answer here is yes. After a mere 6 years, Apple’s strategists have finally caught up to Michael Feldstein’s vision and made iTunesU (or at least the new iPad iTunesU app) a learning platform. Apple added a syllabus tool, note taking, assignments and other tools to “help teachers reinvent curriculum”. The caveat is that all students would need to be on the iPad.

Possibly related posts:

1. Four Key Questions for the Apple Education Announcement There is growing buzz online about Apple’s planned media event...
2. Blackboard's Answers to the IMS Blogged Stuart Sim has live-blogged the IMS Q&A session with Blackboard...
3. Regulatory Barriers to Innovation for Ed Tech and Open Education Over the past few weeks there has been a significant...
4. What the Sakai Announcement Means Barry Dahl read the Sakai Foundation’s recent announcement about the...
5. Apple's Stake in Higher Education This is part 3 of a series of posts documenting...

Four Initial Answers from Apple’s Education Announcement by %%AUTHORINK%% on e-Literate

Over the past few days, there have been three significant developments that indicate the tide is turning on SOPA (and the Senate version, PIPA). As I have written previously, SOPA poses a threat to open education and educational technology in general, while most educational publishers are actively supporting this legislation. At the end of 2011, SOPA appeared to be likely to pass, with strong bipartisan support for the legislation. Since that time, there is a growing backlash, particular from technology companies as well as online communities such as Reddit. This backlash is having a real effect, and as of this weekend,  SOPA may not even make it out of the House Judiciary committee.

1. DNS – Blocking - The first piece of news came out Friday that the DNS-blocking portions of the bill were being stripped. These provisions were viewed by experts to increase security threats to internet addressing, and after initially bypassing experts, congressional sponsors seem to be listening.

“After consultation with industry groups across the country,” SOPA author Rep. Lamar Smith (R-TX) said in a statement released by his office, “I feel we should remove DNS-blocking from the Stop Online Piracy Act so that the [U.S. House Judiciary] Committee can further examine the issues surrounding this provision.”

2. House Leadership – The second piece of news came out early Saturday that the House Republican leadership has agreed to not allow SOPA to move to a floor debate until there is a real consensus. According to Rep. Darrell Issa, one of the leading opponents of SOPA:

“While I remain concerned about Senate action on the Protect IP Act, I am confident that flawed legislation will not be taken up by this House. Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote,” said Chairman Issa. “The voice of the Internet community has been heard. Much more education for Members of Congress about the workings of the Internet is essential if anti-piracy legislation is to be workable and achieve broad appeal.”

3. White House Position – The third piece of news also came out Saturday in that President Obama has now taken a position on SOPA and PIPA, and he clearly opposes the legislation as written. In addition to opposing the DNS-blocking portions, the White House also took a position against the censorship aspects. In their response to online petitions, the White House stated:

Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.

This is good news for almost all of the education community, with the possible exception of the publishers who are backing SOPA*. While neither SOPA nor PIPA is dead, the news is much more encouraging today than it was even a week ago. Plus, there is some entertainment value in seeing President Obama and Rep. Issa agreeing with each other.

Human sacrifice, dogs and cats living together… mass hysteria!

- Dr. Peter Venkman

* Tim O’Reilly and his publishing company are a notable exception to the other educational publishers, as he has come out strongly against SOPA and PIPA.

Possibly related posts:

1. Educational Publishers Appear to be Supporting SOPA UPDATE 12/23: Per the House Judiciary Committee, it is now...
2. How Georgia Tech Has Shown the Perils of SOPA This has been a tough week for open education, at...
3. Turning Your Blog Into a Social Network Node I haven’t forgotten that I still owe you the last...
4. Regulatory Barriers to Innovation for Ed Tech and Open Education Over the past few weeks there has been a significant...
5. Ambivalent on Ed Tech: The EDUCAUSE Re-write Now that I’ve had time to digest the implications of...

The Tide is Turning – SOPA May Not Make It Out of Committee by %%AUTHORINK%% on e-Literate

There is growing buzz online about Apple’s planned media event on January 19th in New York City. Most speculation is focused on Apple distributing textbooks through iTunesU, as described in a New York Times blog. The basis for most speculation seems to be the short comments in the Walter Isaacson official biography of Steve Jobs. This information, along with some additional inside sources have led the NYT blogger Nick Wingfield to suggest that textbooks might be offered for free. In a post on Mashable, Kate Freeman suggests a partnership with publishers such as Pearson Education.

The relevant section in the biography:

In fact Jobs had his sights set on textbooks as the next business he wanted to transform. He believed it was an $8 billion a year industry ripe for digital destruction. He was also struck by the fact that many schools, for security reasons, don’t have lockers, so kids have to lug a heavy backpack around. ‘The iPad would solve that,’ he said. His idea was to hire great textbook writers to create digital versions, and make them a feature of the iPad. In addition, he held meetings with the major publishers, such as Pearson Education, about partnering with Apple. ‘The process by which states certify textbooks is corrupt,’ he said. ‘But if we can make the textbooks free, and they come with the iPad, then they don’t have to be certified. The crappy economy at the state level will last for a decade, and we can give them an opportunity to circumvent that whole process and save money.’

I do not plan to speculate on what the announcement will entail. Rather, I’d like to highlight some key questions about their announcement that should determine how significant Apple’s move will be.

1. Regarding textbook content, will the model follow iTunes, iBooks, or Amazon’s Kindle Self-Publishing?

This question is crucial, since we are clearly seeing the the e-book world has some serious flaws. We have studies showing students only saving $1 on digital textbooks and other studies showing that the adoption of digital textbooks has hit a plateau (and yes, these two factors are intertwined). The existing textbook model, including pricing, has its limits. Audrey Watters had a post in December casting some real skepticism on how disruptive this move could be.

If the model is iTunes and how it changed the music industry, the announcement could be a game changer. Apple dictated the terms to music companies, getting them to support 99 cent songs – thus disaggregating the album to a ‘take what you want’ model, and making the pricing attractive to end users. Could Apple use its muscle to force publishers to change their pricing models? Inkling and a few others have already started to disaggregate the textbook, with $1.99 chapters available, but Apple could take this to a whole new level.

If the model is iBooks, where we now have e-books available for roughly the same price as the printed book, then this news will be a huge disappointment with little long-term impact.  In this model, Apple allowed the book publishers to dictate the end user pricing. All this model would provide is a more attractive distribution platform across publishers. Amazon textbook rentals and Barnes&Noble college bookstores may suffer, but this will not be a game changer, in my opinion.

The most aggressive model is if Apple follows Amazon in their Kindle Self-Publishing program and cuts out the publisher middlemen altogether. Will Apple (or has Apple) found academics and designers to create textbook content independent of the publishers? If so, Apple could even offer digital textbooks for free through the iPad. I would note that this aggressive model is closest to what Steve Jobs described in the biography. If Apple follows this model and has some way to scale the model, then we could have a significant long-term impact.

2. Will iTunesU support OER content without artificial restrictions?

Open educational resources are of growing interest to the higher education community, and there is real potential for this OER content to change our models. It seems a natural that Apple would include OER content within the iTunesU announcement, but will it do so without adding unnecessary digital rights management and other artificial restrictions? Currently iTunesU does not support DRM, so hopefully we get a good answer on this question. However, if they partner with publishers, I could see pressure to add some controls on OER.

3. Will the content consumption model be explicitly tied to the iPad?

Or, will any browser access allow consumption of content, as is currently true for iTunesU media? I could see a real argument that tying the content to the iPad would allow Apple to offer free textbooks in a scalable business model, but this connection would limit the disruption potential of the announcement. Additionally, tying the new content / features to the iPad would allow for a much richer implementation of digital content, as Inkling has shown. This will be an interesting part of the announcement – whether it is tied just to iTunesU or also to iPad.

4. Will Apple transform iTunesU to go beyond content distribution and expand the learning platform?

There are some key capabilities already in place with iTunesU that suggest this announcement might not just be about content distribution. Going back as far as 2006, Michael Feldstein observed:

If you’re a believer in all the Learning 2.0 stuff, then you should be studying Apple closely: Apple is all about “democratization of digital expression.” Really and truly, they get it. And the way they define a “learning environment” (as distinct from an LMS) is very expansive and progressive.

Subsequent observations by Michael from 2006:

If you supplement this capability [ed - content distribution] with a discussion board and maybe a shared calendar, then you’ve provided pretty much everything that the majority of web-enhanced classes use today. You’ve also greatly diminished the value of licensing a traditional LMS to cover the entire campus. This is precisely why Apple draws the distinction between a learning management system (which is narrow) and a learning environment (which is broad).

In other words, Apple has many elements of a learning environment already in place, and potentially the Jan 19th announcement could add more to this vision. Will they add some of these non-content-distribution features in a way that might challenge the LMS model in higher education?

Summary

I expect this announcement to be quite significant in the short term, in terms of media attention, debate in the blogosphere, and discussion amongst institutions. Whether or not there is a long-term impact and disruption on existing educational content and technology markets depends on the answers to the questions above.

Possibly related posts:

1. Four Initial Answers from Apple’s Education Announcement In a recent post I offered four key questions for...
2. Apple's Stake in Higher Education This is part 3 of a series of posts documenting...
3. Apple Trip, Day 2–the Warm-up This is part 2 of a series of posts documenting...
4. What the Sakai Announcement Means Barry Dahl read the Sakai Foundation’s recent announcement about the...
5. Regulatory Barriers to Innovation for Ed Tech and Open Education Over the past few weeks there has been a significant...

Four Key Questions for the Apple Education Announcement by %%AUTHORINK%% on e-Literate