Category: Lit/Pub

As Course Materials Prices Drop, Dept. of Ed. Proposes a Risky Rule Change

course materials

About 25 years ago, when my first child was a little kid, I predicted to a friend that by the time that boy was an adult, higher education in the United States would be in crisis—both financially and culturally. It was clear then that the rate of increase in costs implied a level of borrowing that the market could not sustain, even for students from middle- and higher-income families. Combined with various cultural factors, trends in education, and changes in the workforce, it seemed inevitable that we would soon have a generation of new graduates, carrying heavy debt burdens, looking at a market with radically shifting prospects, and wondering why they got degrees in the first place. (See McKinsey report.)

I mention all that by way of saying that while I endorse the spirit of the Biden administration’s intent to lower the cost of higher education, I am baffled by the Department of Education’s proposed rule change to a cost-saving program that appears to be working. Because one expense that has been trending downward over the last decade is the cost of course materials, thanks to an Obama-Biden administration initiative generally known as Inclusive Access or Affordable Access.

Today, more than 1,900 schools participate in access programs whereby Title IV funds (grants and loans) are used to pay for required course materials as part of a student’s tuition. This enables colleges and universities to bulk-buy digital versions of the materials and lower costs overall, and it enables students receiving financial aid to access the materials on day one rather than wait for funds to be processed a week or more after the start of the term.

Academic researcher Michael Moore, in a letter urging the department not to “gut” the program, writes that overall cost of materials has declined as much as 57%, and his research further shows both grade increases and higher rates of course completions across the student body since Inclusive Access was implemented in 2015. Not surprisingly, the increases in success rates are more dramatic among students likely to be at higher risk due to materials affordability.

But now, in what may be described as a scramble into the couch cushions to find savings, the Department of Education appears to be treating the inclusive access program as one of the “junk fees,” which the administration has promised to root out of rising costs in various sectors. The basis for the criticism is the opt-out model whereby the funds for course materials are automatically rolled into the cost of tuition, but switching to the opt-in approach proposed by the rule change could end the program altogether and drive materials prices back up for millions of students.

I do not have the specialized knowledge to comment on school procurement or to fully unpack the numbers, but if the research data generally indicate that the program is succeeding as intended, it is natural to wonder whether the Dept. of Ed’s rationale is well-founded. This is perhaps acutely concerning in light of the department’s ongoing FAFSA debacle. Seeking to make that process “easier,” the department has created what NBC News calls “a bureaucratic purgatory,” and so it seems more than fair to question the department’s thinking vis-a-vis Inclusive Access.

According to one committee memo that appears to sum up the department’s reasoning, the savings numbers are allegedly inflated by the publishers et al. because the lower cost of the digital materials is contrasted against the retail cost of new printed textbooks. Hence, the memo accuses the publishers, and parties like Barnes & Noble facilitating the program, of exaggerating the savings by “comparing apples to oranges.” But given the generalities presented, and lack of rigorous data cited, in the memo, it’s not clear that the department isn’t trying to compare apples to a whole fruit stand.

For instance, the memo alludes anecdotally to cost-saving strategies like buying used print books, sharing books, reselling books, etc., and on that basis, predicts that an opt-in approach would enable student’s more choices to spend even less on required materials. But even from a cursory glance, the department has not—indeed it probably could not—examine the question at the level of granularity that would be necessary to conclude that it needs to put the program at risk. For example, not only is the supply of used printed books limited, but the memo seems to imply without reason that those books are superior to the digital materials obtained through the access programs.

In fact, the digital course materials include features like interactive engagement between student and teacher that foster communication and performance tracking. (My books never did any of that, and we bitched about prices then, too.) On that topic, one report cited by the above-mentioned memo shows that about 50% of students currently spend between $100 and $300 per semester on textbooks. More compellingly, College Board reports that the average cost overall for required materials is just $310/year, which is no more (and may even be less) than we paid in 1984 when I started college, if we factor for inflation.

Naturally, students majoring in highly technical fields or getting advanced degrees are acquiring more costly materials, but even at the upper end of ~ $500 per semester, that’s about 3% of the average total cost for a year of college in the United States. It’s not nothing. But given that the primary purpose of college is to study and learn from the materials, it does not seem like 3% of the overall cost is wildly out of proportion. Moreover, government programs can never address every individual’s need, nor certainly satisfy every individual’s perception of costs. At best, most beneficiaries of a program will be in the median, and this rule of thumb appears to be borne out by the data on Inclusive Access. As such, the Dept. of Ed, in naively claiming it can accommodate all students could end up reversing the progress made for many students.

Finally, the copyright nerd in me wonders whether there are any whispers inside the department from the folks at organizations like SPARC, which promotes open educational resources (OER) as low-cost or free substitutes for materials from traditional publishers. Notably, the quality-control on OER materials is inconsistent and, therefore, risks lowering costs by lowering standards. I cannot say whether SPARC et al. are influencing the department’s thinking, but the lack of rigor in the argument for the rule change does resemble the kind of generalized talking points made by the free-culture, anti-copyright crowd.

We all know the adage you get what you pay for, and in fairness, this is not always true. In Biden’s State of the Union, he referred to food companies putting fewer “chips in the bag” for the same retail price, which I sincerely hope was meant as an example of a broader problem. Regardless, college course materials are not potato chips, mass produced for pennies a pound, and funding that supports the creation of high-quality course materials for America’s college students should not be characterized as “junk fees’”

Quality course materials must be written, edited, illustrated, produced, and (if digital) coded by professionals with expertise and skill. The cost of all that work is not zero, and the optimal price for these materials must be derived from analysis of data, not purely driven by anecdote and perception. For now, if the data all indicate that costs are trending down while student success is trending up, the Department of Education should be wary of rashly upending one initiative that happens to be working.

Photo by: Milkos

Court Demolishes Texas Book “Rating” Law

In the 1980s, the Parents Music Resource Center (PMRC), led by Tipper Gore and several other wives of Washington insiders,[1] sought to compel record labels to place stickers on albums warning consumers that the songs within contained “explicit lyrics.” Songwriters, including Frank Zappa, John Denver, and Dee Snider testified in Senate hearings to oppose the label initiative on First Amendment grounds, but in the end, the RIAA agreed to voluntary use of the labels. Predictably, the result was a lot of ridicule of the now defunct PMRC, and the warning labels mostly served to make the albums more attractive to listeners.

Today’s self-appointed defenders of children against “dangerous” cultural material are more aggressive and mean-spirited than the PMRC and, it appears, more incompetent. Both the tenor and the incompetence were recently highlighted in a 59-page opinion handed down by the District Court for the Western District of Texas, eviscerating a law, unironically called READER,[2] that would have required book vendors to engage in a complexly incoherent rating scheme.

The complaint, filed by Book People, Blue Willow Book Shop, American Booksellers Association, Association of American Publishers, Authors Guild, and Comic Book Legal Defense Fund, alleged that, if enforced, the Texas law would violate the First and Fourteenth Amendments. Plaintiffs won a summary judgment on all questions of law, and the state is enjoined from enforcing READER as of the September 18 decision. In sum, Judge Allan D. Albright, a Trump appointee, stated, “READER’s requirements for vendors are so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.”

That is a sober and sobering assessment of the provisions, which appear to have been designed not to reasonably assess books for age appropriateness in school settings, but to ban the sale of certain books by erecting a thicket of compliance too dense and jagged to navigate. Either that, or the law was pure theater and never meant to be enforced because it is so unwieldy. Judge Albright’s opinion is rich with pull-quotes criticizing a law that would have burdened vendors with extraordinary expense (in the millions of dollars) to analyze their catalogs according to undefined terms and methodologies…

The lack of any blueprint for the Plaintiffs to follow creates a blunt reality that under this scheme it is guaranteed that different book distributors and sellers will arrive at different assessments with respect to hundreds if not thousands of books.

Plus, the inevitably broad range of interpretations and applications of READER would be further exacerbated by the authority of the Texas Education Agency (TEA) to overrule a vendor’s rating without any clear guidance or process for appeal…

There is precious little if any language in the statute to ensure that any decision made by the TEA with respect to the rating of any book will be any more ‘accurate’ (whatever that means) allowing for the enormous possibility if not probability that it will be entirely arbitrary and capricious (at best). In other words, vendors must decide between either accepting the state administrative agency substituted speech as their own or being effectively blacklisted.

Specifically, if READER were to be enforced, book vendors would have been required to rate both their current catalogs and “books in active use” according to new state standards for “sexually explicit” and “sexually relevant” material. Given the current climate flush with politicians who routinely conflate sexual identity with sexual conduct, it takes little imagination to guess at the Texas legislature’s intent with a vague category called “sexually relevant.”

For instance, how might a vendor be expected to rate my friend J. J. Austrian’s book about two earthworms getting married when there is no sex in the story at all? Although Worm Loves Worm may be read as allegorical support for same-sex marriage, does that subjective reading make the book “sexually relevant” in some administrator’s mind? J. J. said during our podcast interview that most kids don’t even pick up on a “gay marriage” metaphor—earthworms are hermaphrodites after all—which suggests that adults who have banned the book are likely poor readers of both the story and the intended audience. Now, imagine being a vendor and trying to rate hundreds or thousands of titles in context to the “community standards” of all the disparate communities across the State of Texas. “It is an open question whether this community standard is based on Austin, Texas, or Onalaska, Texas—or any of the more than 1,200 incorporated municipalities across Texas,” the opinion states.

There are too many moving parts in this judgment to discuss in one post, but I think the bottom line is that laws like READER aren’t about protecting children, or even about notifying parents about content, as the PMRC intended. While any state has a right and authority to erect a system for vetting materials purchased by its schools, sloppy, overbroad, Catch-22 laws like READER, especially in the current climate, are arguably about little more than hating gay and trans people.

I would challenge anyone to find young children’s literature that contains “sexually explicit” material, as defined by law[3] or common sense, let alone find the mythical Anais Nin picture book in a school library. On the other hand, if “sexually explicit” or “sexually relevant” are terms that Texas lawmakers intended to encompass stories in which a character has two dads, or stories about young people struggling with gender identity, those terms are as illiterate as they are constitutionally unworkable.

For as long as I’ve been politically conscious, “conservative” Americans have claimed to oppose the nanny state and to value individual effort. So, maybe parents who don’t want their children reading certain books can stop asking the state to do their parenting for them, read the damn books themselves, and make the individual decisions they deem necessary. Because there is a world of difference between a personal choice to restrict access to a book for one’s own child and demanding that a book disappear from the shelves for all children. Fortunately, the latter can rarely be achieved without violating the Constitution.

[1] Also Susan Baker, Pam Howar, and Sally Nevius.

[2] Restricting Explicit and Adult-Designated Educational Resources Act

[3] “The Miller test [for sexually explicit material] requires the following elements: ‘(a) whether the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’”

Photo by: shutter2u

Chabon v. Chatbot:  About those ‘Shadow Libraries’

As many readers already know, another class-action lawsuit was filed on September 8 against OpenAI by book authors Michael Chabon, David Henry Hwang, Matthew Klam, Rachel Louise Snyder, and Ayelet Waldman on behalf of all authors similarly situated. The allegations are almost identical to the complaints in other class-action suits against various AI companies. I won’t repeat what I have already written about each allegation, but once again, I predict that if the court does not find unlawful reproduction in transient copies necessarily made in RAM, Open AI will likely prevail. Once again, this complaint alleges that the GPT model itself is an unlicensed “derivative work” of the entire corpus of books fed into it, but this does not seem to be a well-founded implication of the derivative works right under copyright law.

But one aspect of this complaint (as well as Tremblay et al.) is that Open AI is alleged to have obtained part of its database from known pirate repositories. In reference to one of the datasets used to train Chat GPT, the Chabon complaint states, “the only ‘internet-based books corpora’ that have ever offered that much material are infamous ‘shadow library’ websites, like Library Genesis (“LibGen”), Z-Library, Sci-Hub, and Bibliotik, which host massive collections of pirated books, research papers, and other text-based materials. The materials aggregated by these websites have also been available in bulk through torrent systems.” So, is the act of exploiting illegally obtained materials in this manner a violation of law?

Certainly, the Copyright Act does not address the issue. There is language about “lawfully made” copies in the context of first sale doctrine and certain exceptions for libraries. The only two uses of the words “lawfully obtained” in Title 17 pertain to acquisition of a computer program and permissible circumvention of technical protections for research purposes. So, nothing in the Copyright Act makes Open AI’s scraping “shadow libraries” an infringing act on its own, and there is no language in §107 on fair use that refers to lawfully making or obtaining material(s). This would be anathema since a fair use defense implies an unlicensed use.

Still, it seems wrong (probably because it is) to profit by exploiting another party’s unlawful possession of valuable materials. Under the criminal code (Title 18 §2315), it is a “federal offense to receive, possess, barter, sell, or dispose of stolen property with an aggregate value of $5,000 or more if the property crosses state lines.” The statute refers to physical property and not to exploiting databases full of pirated material. But if an AI developer knowingly exploits repositories replete with unlicensed copies of works, doesn’t that sound like it should be illegal?

This discussion reminds me a little bit of the rationale for the Protecting Lawful Streaming Act of 2020, which elevated the unauthorized public performance of works via streaming from a misdemeanor to a felony. After years of debate—and allegations by anti-copyright groups that felony streaming would be disastrous—Congress recognized that unlawful streaming is effectively a digital-age version of mass bootlegging physical copies, which had long been a felony. In fact, streaming is worse because it can reach a much larger black-market than any bootlegger distributing physical products ever could.

So, under a similar rationale by which Congress recognized that streaming digital repositories of unlicensed works is a felony, perhaps lawmakers might broaden the intent of Title 18 §2315 to prohibit mass exploitation of digital warehouses full of illegal copies of copyrighted works. Certainly, these warehouses contain materials with aggregate values in the tens of millions of dollars. Hence, any party that knowingly exploits these warehouses for financial gain might reasonably be liable under the criminal code.

Authors and artists are justifiably angry that their works are being used without permission to train generative AIs. And the fact that Chat GPT was allegedly trained in part with corpora of literary material acquired and stored by media pirates is salt in the wound to say the least. I don’t know what, if any, legal remedies might be proposed, but I am confident that it is generally wrong to profit from the intentional use of ill-gotten goods.

Photo by: onephoto