TechLaw

Sen. Durbin Proposes $15 Million in Grants for Open Textbook Creators

Last week Sen. Richard Durbin introduced a bill (S. 1714) that would create a $15 million federal grant program for "open textbooks." The bill is a further example of continuing federal government interest in openness, transparency, and using information-sharing technologies to promote social aims.

Sen. Durbin is promoting his bill as a means to drive down the price of college textbooks, but I think it is going to have more far-reaching consequences than that. If it passes.

The bill defines "open textbook" as "a textbook or set of course materials in electronic format designed for use in a college course at an institution of higher education that is licensed under an open license."

New works and updates to existing works would be eligible for grants.

The bill defines "open license" as "an irrevocable intellectual property license that grants the public the right to access, customize, and distribute a copyrighted material."

Any college, and professor or group of professors, any for-profit or non-profit organization may apply to the Secretary of Education for a grant to produce open textbooks. It will be interesting to see how this all plays out in the legal education market, particularly in the areas of cyberlaw and intellectual property law where feelings about openness run strong. A shot of federal grant money might be all it takes to spur the development of new teaching materials from law clinics at Harvard or Berkeley, or stimulate interest from an established, commercial technology law publisher like MIT Press.

Grant-eligible teaching materials must be both "free as in freedom" and "free as in beer." S. 1714 provides that the "full and complete digital content of each open textbook" must be "made available free of charge to, and may be downloaded, redistributed, changed, revised, or otherwise altered by, any member of the general public."

The message to entrepreneurs is this: If you'd like to take the big textbook publishers down, the federal government might be willing to lend a hand. The hard part will be making a buck in the process.

Court Certifies Class in ADA Action Against Target Corp.

Executives at retailers who also operate Web sites should stop whatever they are doing right now and read Judge Marilyn Hall Patel's latest opinion in the National Federation of the Blind v. Target Corp., No. 06-1802 (N.D. Cal. Oct. 2, 2007). Judge Patel -- who mentioned at several points in the opinion that she was not evaluating the merits of the plaintiffs' Americans With Disabilities Act claims -- certified classes consisting of blind persons who:

    (1) were deterred from shopping at Target because of problems they had navigating the Target Web site ("The layout of the website was extremely confusing and large portions of information appeared to be missing," one declarant stated.)

    (2) experienced increased time and expense while on Target's premises because they were unable to "pre-shop" on the Web site (One declarant stated that she was required to ask a Target clerk read a gift registry aloud because she had been unable to read it on the Web site).

These declarants, Judge Patel said, meet the court's previously announced formulation of an actionable ADA claim: an inaccessible Web site that impedes full and equal enjoyment of the goods and services offered in Target's physical stores.

Though the ADA contains a "nexus" requirement -- i.e., that the Web site accessibility faults impair a disabled person's use of the store's physical premises -- no such nexus is required under California's Unruh Civil Rights Act and the Disabled Persons Act, Judge Patel also ruled. Plaintiffs still have some hurdles to overcome on these state-law claims, however. The Unruh Act requires a showing of intent to discriminate, and the DPA claim requires the court to interpret, for the first time, the meaning of "full and equal access" in the context of a Web site design.

The bar set by Judge Patel is a low one. All retail shoppers benefit from reviewing the availability of merchandise online prior to visiting the retail store. If Target's online operation is ultimately found to violate the Americans With Disabilities Act, I am sure that most, of not all, large retailers suffer the same problem. The state-law claims will apply to any Web site doing business in California.