Who Owns Digital Learning Resources?–1

In March 2016, Hal Plotkin published “Who Owns Digital Learning Resources Funded by Taxpayers,” an article on the Department of Education’s proposal to require open licensing of works created with Department funding. Plotkin notes the objections of AAU and APLU to this proposal, compares the situation with that of Bayh-Dole, and argues that if university administrators want educational materials to go the way of pharmaceuticals, then we should first have a public accounting:

Before universities are permitted to expand the financial incentives they enjoy to also claim ownership of copyrightable works produced at their schools that are paid for by taxpayers they should first be required to accurately report the opportunity costs associated with the last wave of federal research privatization.

That’s spot on. Plotkin concludes:

The outcome will determine whether Department of Education grants create public educational resources that everyone everywhere can immediately use and build on, or whether the fruits of those investments will be bottled up for decades by academic institutions and administrators hoping to charge rent on new digital educational products, tools and resources the public already paid for.

That’s also a fair assessment.

Along the way, however, the article has issues. It’s worth addressing these issues to get at something beyond the dichotomy that Plotkin establishes–between a private venture capital approach and a government forced open approach. I get the feeling that we are reprising the Spanish civil war, when the fascist nationalists fought the communist progressives for control of the government, and a citizen that didn’t like either option ended up being the enemy of both.

Let’s have a look, then, at some of the moves made by Plotkin’s article, and by doing so raise the visibility of other concerns that might change the nature of the policy choices we have–and at least ought to consider.

Plotkin starts his article by reprising in a brilliant phrase the premise of university technology licensing offices and the university administrators that love them:

Everyone wants to be a successful venture capitalist.

The public rhetoric of these offices is that only by commercialization will the results of university research come to have benefits for the public. Commercialization in turn requires the development of a laboratory-based invention into a commercial product, and that development in turn requires lots of money. Since the government refuses to provide that money, it must come from private sources. Private sources won’t provide that money unless they can see a return on their “investment.”

Thus, to commercialize, meaning to develop at private expense with some degree of risk, universities must patent the results of research to make private investments more attractive and thereby increase the likelihood that development efforts will take place. Most university accounts of “technology transfer” end with an exclusive license to a patent. What happens after that is a scatter shot of metrics–investment in startup companies, jobs created as estimated from reported licensing income, social value of making products available.

These metrics, however, largely fail to account for the primary claim of the public rhetoric–that the public will benefit from the use of inventions. Instead, the metrics track the exploitation of patent monopolies, which is an entirely distinct thing. One can make a lot of money in a pyramid scheme that passes patent rights down a chain of owners and licensees, bouncing from less gullible to more gullible investors (or speculators), all playing on a university’s reputation for research. The shifted metrics–usually full of apparently big and ever increasing numbers and claims of success drawn from them–then are used to attract more research funding to a university.

The metrics, in practice, describe “research as an industry.” The public benefits from the expenditure of money provided for the efforts to conduct research and to “commercialize” the results, and attention should not be paid to accounting for public benefits that arise from the actual use of the research results. It’s only strangely a public benefit that a university startup attracts private investment. It’s only strangely a public benefit that a university gains more federal research funding because it has cast itself as having a successful technology transfer program. You get the point. The exploitation of patent rights to create an impression of excellence and success is not the same thing as an accounting, for each institutional claim of ownership over a research asset, of the resulting public benefit from the use of that asset arising from the ownership claim.

We might snark up Plotkin’s point about successful venture capitalists–university administrators want to have good careers and if that goal is best served by appearing to be venture capitalists, then they will play at that until someone calls their bluff. Anything good that happens while they play at being venture capitalists they attribute to their roles; anything else they simply don’t acknowledge.

For instance, when Research Enterprise caught the University of Washington faking its metrics for startup companies, illegally investing state money in private company stocks, lying in its reporting to the Washington State legislature on the “success” of the millions it had spent in the STARS program, and lying to the U.S. Department of Treasury and doing a shady deal with the Washington State Department of Commerce to get millions more in grant money that should have gone to underserved small business owners, the University refused to acknowledge any of it. We tipped administration officials that something was wrong, getting not even a reply; published articles that documented the irregularities; sent requests for public records–which the university stonewalled. Administrators fought to prevent an audit required by the state legislature.

The UW president, soon to resign, and who had made the effort one of his signature initiatives, groused about “bullshit metrics.” The vice provost who misspent by my estimate over $100m in six years on a formal business plan that promised to make so much money flipping university startups for profit that the university would change its financial operating model was forced out soon after the president left–at the apparent peak of her “success.” Meanwhile, the University of Washington continues to enjoy the benefit of is false metrics–citing awards for being “innovative” based in substantial part on its fraudulent startup metrics. Political bluffing, so it has been argued, isn’t lying because no one should expect politicians to tell the truth any more than poker players should be truthful about the cards they hold. But if a university claims the same benefit as the politician, then its reputation is ruined.

University of Washington administrators played venture capitalists for six years, even running their own venture fund, got next to nothing in return, lost tens of millions of dollars, but played the effort throughout as public benefit as if wordsmithing a claim of public benefit somehow should mean that whatever they did was a public benefit.

Plotkin continues:

The Obama administration’s goal, which is conveyed in a document called a Notice of Proposed Rulemaking, is to modernize federal contracting procedures for the digital age

This is rather interesting. What the Department of Education proposed–and then implemented–was not a modernization at all. It was a return to the Kennedy era requirements on research results made with federal support, now applied to “digital” works. Results should be dedicated to the public or licensed non-exclusively and royalty free, or at least with a royalty that’s reasonable under the circumstances. That’s not a “modern” thing–unless by “modern” we mean “in the modern era starting with the ramp up of federal investment in research hosted by universities after World War 2.” By implication, wanting to be a venture capitalist with regard to digital works pertaining to education is decidedly “not modern.” That’s worth contemplating!

The new requirement for open licenses as the default would allow anyone to freely use and improve digital learning resources if they were financed by taxpayers.

We will return to this point. It’s not as obvious as all that, and by the time we are done, you will see why.

The trick is this next round of big money payouts can only happen if the college administrators can stop the public from owning what the public paid for.

Plotkin is right to target university administrators. University administrators indeed think this way. But so do some university faculty. And so do some venture capitalists. But the college administrators not only attack public ownership–they attack the faculty authors and developers of the materials that may be of so much venture value to erstwhile “commercialiseurs.” The faculty authors and developers, often–I speak from experience–want to distribute what they have developed as open source. These faculty authors and developers also want other things–to make sure that what they publish and distribute is properly attributed, that others don’t take false credit or make changes that undermine the work in its original form.

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