[jcampbell1]

Between the teaching exception for copyright and the DMCA safe-harbor, I am not sure the lawsuit is a slam dunk. At the end of the day, major educational publishers might be forced to submit DCMA requests or sue teachers/schools (which would never happen). It would be far smarter for the big educational publishers to buy this thing back for mega-bucks rather than launch a lawsuit they could lose.

[bradleyland]

I'm afraid that's not how it works at all. TPT is selling these materials to other teachers. They are, in effect, a publisher.

The teaching exception means that a teacher in a classroom can show a copyrighted piece as part of her lesson plan. It does not mean that you can "package" a lesson plan that includes the same materials, then sell them to other teachers.

If it were possible to use the teaching exception in this way, all educational book publishers could use any image they want without paying for it. I've worked with a children's educational book publisher for the last 10 years. They have to buy all copyrighted materials used in their books.

A caveat. I've never seen a TPT lesson plan, so maybe I'm unclear on how they "package". Specifically, I use the term package to mean that the actual copyrighted materials are included with the file you receive. TPT could get around the copyright issue by inserting reference placeholders, then instruct the purchaser to acquire the images on their own, but that's a significant amount of work. I would be surprised if that's how they were packaged.

[ktsmith]

A typical plan consists of a word document or PDF containing a description of the lesson, images (charts, graphics, posters, etc), fonts (rendered as it would be used, not as a reference), and instructions on performing the lesson.

I've only seen a fairly small number of plans (less than fifty) but it's hit or miss on how sources are credited or listed at all. Font names are common, license and purchase information is almost never included. Image sources are hit and miss though there's a lot of use of scrappindoodles.com and they explicitly list how their resources can be used, how they have to be credited, and name TPT explicitly in their ToS which I found interesting. Other sites have pretty typical license terms with lots of personal, non commercial use restrictions.

Here's the terms for scrappindoodles.com which specifically calls out TPT use as acceptable for license holders. http://www.scrappindoodles.com/index.php?main_page=condition...

[jcampbell1]

> The teaching exception means that a teacher in a classroom can show a copyrighted piece as part of her lesson plan.

> If it were possible to use the teaching exception in this way, all educational book publishers could use any image they want without paying for it.

Your logic is flawed here. TPT is selling lesson plans and live teaching materials, not books. (Or at least they could reasonably make this argument)

Also, the packages typically include references. Teachers using these materials should be aware that they are potentially infringing on copyright, thus could be sued.

Like I said, TPT could be saved via DMCA, and the teachers are the ones that could be sued. The teachers would then be protected by the teaching exception. My point was that the lawsuit is not an obvious winner.

[bradleyland]

> Your logic is flawed here.

It might be, but we're talking law, not logic. Copyright law has no obligation to logic.

> TPT is selling lesson plans and live teaching materials, not books. (Or at least they could reasonably make this argument)

They can call them moon modules, and it wouldn't matter. Copyright law has no concept of "book" or "lesson plan". Copyright protects the work. It doesn't matter if you're redistributing prints of a photo, or selling a JPG over the internet. Copying and redistributing a copyrighted work (in any form) is the violation.

> Also, the packages typically include references.

As do many books, but it doesn't exempt them from copyright obligations.

> Teachers using these materials should be aware that they are potentially infringing on copyright, thus could be sued.

This is where you have it backwards. The teachers who use the materials (probably) aren't breaking any laws by using the materials. They're covered by the teaching exemption. TPT, however, has copied and distributed the works in exchange for money. That is a pretty clear violation of copyright expectation.

> Like I said, TPT could be saved via DMCA, and the teachers are the ones that could be sued. The teachers would then be protected by the teaching exception. My point was that the lawsuit is not an obvious winner.

TPT, being in the position of a facilitator, might be safe, but there are two types of teachers in this equation. There are teachers using the lesson plans, and teachers selling the lesson plans. Those selling the lesson plans are at risk, IMO.

Simply being in the teaching profession doesn't automatically exempt you from copyright law. Laws are largely concerned with acts and context. Copying and distribution are both acts. If the context is that of teaching (as in the act of teaching, not the employment), then there is an exemption. Specifically, a teacher may copy and distribute (by incorporating it and showing it to students) a copyrighted work without penalty, provided the teacher is in the act of teaching.

I agree that the lawsuit is not a slam dunk -- very few lawsuits are -- but I don't think this for the same reasons as you.

[jcampbell1]

My apologies for my previous comments. I was completely forgetting about the teachers that are selling stuff. I justifiably feel quite stupid now.

I fully agree that there are teachers on this site ripping off copyrighted materials and making a profit from doing so. They can and should be sued, and they will likely have no protection from their school districts nor unions.

I am tempted to find out who this person making $1M and find the dinosaur drawings in the dinosaur lesson plan, and then find who paid the illustrator to draw these things and let them know they are someone is making $1M on their back.

You have successfully reversed my opinion on this company 180 degrees.

[ktsmith]

> I am tempted to find out who this person making $1M and find the dinosaur drawings in the dinosaur lesson plan, and then find who paid the illustrator to draw these things and let them know they are someone is making $1M on their back.

It's also possible that particular plan author is doing everything by the book. There are plans that I've seen that are using properly licensed materials or that use original artwork. My wife is putting together some plans that contain her original materials and illustrations created specifically for the plan by another teacher as an example.

The reason for my comment at the top of this thread is largely due to the number of plans that appear to be not compliant with copyright law and continuing press about how much money some (very few) individuals have made on the site. I have no opinion on any suits resulting from use of the site being winnable for either side.

[ktsmith]

> Your logic is flawed here. TPT is selling lesson plans and live teaching materials, not books.

I think the reverse is true here. An individual plan isn't that different from a compilation of plans. The rules of copyright still apply and the teaching exception does not apply as distribution (for sale no less, though there are free plans on TPT) is not exempted.

Including a reference to the source doesn't remove the liability of distributing/selling a copyrighted work which the distributor doesn't have a license for.

> Like I said, TPT could be saved via DMCA, and the teachers are the ones that could be sued. The teachers would then be protected by the teaching exception. My point was that the lawsuit is not an obvious winner.

I stated this elsewhere but the teaching exception doesn't cover copying or distributing a work to other teachers or for sale. It provides an exception for the purposes of teaching face to face or in the case of an online course, electronically to a registered student.

[ktsmith]

The teaching exception does not include copying, only performance and display, copying and distribution is what's happening here. The plans I've looked at contained fonts/images that have specific licenses forbidding commercial redistribution/resale and they are distributed as part of purchased plans. The author of the plan includes links to where the fonts/images can be purchased but still distributed them in a commercial form. The DMCA safe harbor would be the only thing I think that would protect them, but that hasn't stopped suits in the past.

[ktsmith]

> It would be far smarter for the big educational publishers to buy this thing back for mega-bucks rather than launch a lawsuit they could lose.

The linked article points out that Scholastic bought the site from it's creator and then sold it back when it didn't become an overnight viral success.

[ryanhuff]

Why would the publishers buy a third party service when they already have a captive audience of customers (teachers)?

[jcampbell1]

Publishers are in the business of helping teachers convey information to students by selling schools and teachers materials such as lesson plans, textbooks, and workbooks. TPT does the same thing but cuts out the publisher.

I am not sure what you mean about captive audience. Are you saying they should just build their own marketplace?

[ryanhuff]

Sure. If there is really a multi-million dollar market opportunity, why not build it themselves instead of buying a start-up. The publishers already have the relationships with the schools.

[timwiseman]

Additionally, suing a site designed to help teachers and run by a former teacher might generate some rather bad publicity.

[bradleyland]

I wouldn't count on that saving them. Plenty of independent publishers are run by former teachers. Many large publishers employ droves of former teachers. Yet there are lawsuits between industry players all the time.

TPT is able to sell lesson plans at extremely low prices, in large part, because they're not burdened with the task of identifying and paying rights holders.

I'm close friends with an independent book packager. Literally one woman who works from home, packaging book ideas. Book packaging means taking a manuscript from an author, building a book design, and sourcing/creating the associated media (images and illustrations) that make up the book. The only staff she employs (part-time) is dedicated to identifying and obtaining images for her books.

It's a surprisingly difficult task. You can't just perform a Google Image search for a topic, because the site you land on is rarely the rights holder of the image. You end up chasing a rabbit down the hole. She ends up using sites like Getty. While their pricing might seem ridiculous, it's a lot less expensive than dumping hours in to tracking down and negotiating with the person whose photo you found in a Google Image search.

It's easy to see TPT as this awesome, disruptive, middle-man slaying startup, but it's also easy to see how they're not playing by the same set of rules as everyone else. Maybe the rules are wrong. I'm open to hearing that argument. However, I am certain of one thing: it is not OK to hold people like my book packager friend to one standard while TPT is held to another.

[ktsmith]

That's never stopped other copyright holders. How many lawsuits have made the press because they were against elderly, dead people, etc? Quite a few.