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Bill Fitzgerald

Bill Fitzgerald

Corporate Welfare, New York State, and Misusing Open Licenses

12 min read

In an earlier post, I noted that there is a licensing discrepancy between the Common Core aligned curriculum on the EngageNY site and the same curriculum sold by the contractor hired by NY State to create the curriculum. The curriculum available on the EngageNY site is released under a Creative Commons Non-Commercial Share-Alike license, where the curriculum sold by the contractor has all rights reserved. Before we go any further, we need to emphasize that the sale of work covered under a Creative Commons license - even work released under the Non-Commercial license - is not the issue. Openly licensed work can be sold without issue, and selling work under a Non-Commercial license just requires the permission of the license holder.

The point that originally attracted my notice was that the licensing had changed on works that appeared to be identical, with one version being openly licensed, and an identical version being fully encumbered with all rights reserved.

New York State paid for the curriculum in question with public money - specifically, New York State was given 700 million dollars by the federal government as part of Race to the Top. Secretary of Education Arne Duncan has discussed using Creative Commons licensing to create Open Educational Resources in the past, and his take on openness is heavily tilted toward the publishing industry. In March of 2010, he made this promise when speaking to the Association of American Publishers:

 

Our commitment to Open Educational Resources includes a commitment to you: that they will be fully open, including open to commercial producers of learning materials who want to add value to these resources and sell enhanced, proprietary versions.
We see this step as both an investment in our students and an opportunity for your industry.

With this in mind, and thinking about the publicly funded development of a resource that appeared to be fully owned by a private entity, I wanted to evaluate a sample copy of a text for sale under a restricted license and see how the contractor - Common Core, Inc - added "value to these resources" as they sold enhanced, proprietary versions." I made sure to buy a version of a text that had a corresponding version available online - for this evaluation, I chose Sums and Differences to 20.

 

What Public Money Can Buy

When the text arrived, I checked the licensing on the text. The print version was copyrighted "All Rights Reserved" to Common Core, Inc, and made no mention of the openly licensed version available on the EngageNY web site.

 

All Rights Reserved

The preface to the text clearly mentions the role of public money in creating the text:

 

In 2012 Common Core won three contracts from the New York State Education Department to create a PreKindergraten-12th grade mathematics curriculum for the teachers of that state, and to conduct associated professional development. The book you hold contains a portion of that work. In order to respond to demand in New York and elsewhere, modules of the curriculum will continue to be published, on a rolling basis, as they are completed.

The language of the preface in the printed text is echoed on the Common Core, Inc web site:

 

Then, in 2012, CC won three contracts from the New York State Education Department to create a comprehensive PreK–12 mathematics curriculum, and to conduct associated professional development. From that effort we have created Eureka Math, a state-of-the-art online curriculum that meets the needs of the teacher, the trainer, and the student.

The interesting element of both of these quotations is the clear and unambiguous acknowledgement that the NY State funding drove and supported the development of key offerings of Common Core, Inc. In other words, Common Core, Inc, used public money to develop, market, and sell proprietary, non-public offerings. Common Core Inc sells both curriculum and teacher professional development, constructed via millions of public dollars. The fact that public money was given to a private organization to develop a proprietary set of services that can only be accessed with additional public money is simultaneously ironic and sad.

Moreover, having a vendor retain ownership AND copyright of a work product funded via public money for a state government is odd. State contracts, and the state contracting process in general, are notorious for their insistence that the state owns all work product delivered under a state contract. Additionally, both the Creative Commons Non-Commercial and the Share-Alike clauses should have prohibited a private entity from stripping all licensing from a publicly funded work.

To learn more about the mechanics of how this scenario came into existence, reviewing the language of the Requests for Proposals (RFPs) from New York State was informative.

 

New York State RFPs, or How The Sausage Gets Made

In researching this piece, there were two RFPs that resulted in Common Core aligned curriculum. Both RFPs use identical language to define ownership of work created, and nearly identical language when they discuss the use of Creative Commons licensing.

Initially, the RFPs claim that New York will own all work product delivered as a result of this contract.

 

In order to leverage maximum use of the federal Race to the Top grant proceeds used to fund this contract, NYSED SHALL OWN all materials, processes, and products produced for NYSED pursuant to this contract

Then, however, the state adds a new clause to the RFP language. If the contractor uses proprietary material (something they or someone else owns), NYSED will let the contractor reserve copyright to all materials created specifically for the RFP.

 

IN THE ALTERNATIVE, NYSED will permit the contractor to reserve the right to copyright the materials produced under the contract resulting from this RFP

To translate, if a contractor wants to have public money fund their internal research and product development, all they need to do is include a subset of proprietary material in the larger body of work produced for the RFP. With this one minor adjustment, we have a situation where public money funds the business development of a privately held organization. The way the RFP is worded actually creates an incentive for vendors to insert "proprietary" material into the work they created for these RFPs.

The contract summaries for the three contracts granted to Common Core, Inc, are available here: Contract C010939; Contract C010940; and Contract C011009.

 

I Can Haz Value-Add?

Earlier, we looked briefly at how openly licensed material could be used to benefit publishers. To re-quote Secretary Duncan:

 

Our commitment to Open Educational Resources includes a commitment to you: that they will be fully open, including open to commercial producers of learning materials who want to add value to these resources and sell enhanced, proprietary versions.

With that in mind, I read through the print version I ordered to see what value had been added between the print version and the online version.

The only difference between the two versions - aside from the welcome text and licensing - was in the header and footer on each page. The print version stripped out the Creative Commons licensing, and the EngageNY logo. Even the edit date was identical between the two versions.

From a random comparison of around 40 pages (out of approximately 120 pages) the content in both versions is identical.

 

This Is What Bad Public Policy Looks Like

Private entities put millions of dollars into creating new educational standards.

Public funding streams get made available to states who adopt (or make plans to adopt) these privately developed standards. Adoption will require new curriculum, new tests, and teacher professional development for the foreseeable future.

As we saw in New York, public money from these federal funding streams pays for learning resources, but the structure of the RFPs for this material encourages vendors to retain full rights over publicly funded material. In other words, public dollars get funnelled into private entities to create the business structure that these private entities will use to get contracts paid for with additional public money. It's comparable to lending your landlord money so that your landlord can buy the place where you currently live.

 

A Limited View Of Open

Secretary Duncan invokes a limited definition of openness when he describes "fully open" as ensuring the right of publishers to "sell enhanced, proprietary versions." While selling access to copies of openly licensed works is completely acceptable, "fully" open includes a right to reuse, and something approaching a level playing field for all entities and organizations looking to reuse the content. It bears repeating here that the end goal of this publicly funded work is a better education for all students, so eliminating any and all barriers to broad reuse should not be an issue.

Three shifts would eliminate the bulk of the issues here:

 

  • Drop the Non-Commercial clause from the materials housed on EngageNY, and release these items under an Attribution Share-Alike license. This would allow more people to build on these materials with fewer restrictions.
  • Include the Attribution Share-Alike license on printed texts. This would simplify the lives of teachers who - for whatever reason - preferred to photocopy the text rather than access the online version.
  • Release any material used in teacher professional development under an Attribution Share-Alike license. This would allow other states, schools, districts, or companies to incorporate and improve this work. Given that the entire point of developing new curriculum and professional development resources with public money is to help more people learn more things more effectively, eliminating barriers to access via truly open licenses seems like an obvious step.

However, the approach to openness taken by NY State Department of Education, Common Core Inc, and by Secretary Duncan shows a potential misunderstanding of where the value resides. The approach taken by these three entities places a premium value on content. Rights to content is restricted via copyright, the "value" of content is enhanced by publishers, and content is treated as something special by organizations looking to sell access to content.

While the rollout of the Common Core standards has inflated the demand for new textbooks, we only need to look at the music, television, movie, and print industries to see how selling access to content plays out within the current landscape. If you place a premium on the value of your content, it implies a lack of confidence in the value you can bring when people interact with the information. Learning is transformative, regardless of whether that learning is teacher professional development or second grade math. Viewing content as anything more than a vehicle for interaction is a dated view of both learning and content.

 

This Is What Bad Education Policy Looks Like

If the goal of spending public money on educational initiatives is to enable as many people as possible to benefit from these initiatives, then the efforts of NY State and Common Core, Inc do not support that goal. By restricting who can access work created from public money, they ensure that the benefits remain limited. While their efforts to license material under Creative Commons licensing are laudable, the purchasing practices of NY State Education Department undercut the usefulness of open licensing.

The disconnect here is rooted in a difference in belief of how education occurs best. The New York State approach - and really, the approach that appears to be driving much of the implementation of the Common Core Standards, the new curriculum aligned to the standards, the standardized tests aligned to the standards, and the teacher professional development around using these materials - appears rooted in the belief that an education is a thing that is delivered. The current approach to the implementation of the Common Core Standards puts more faith in the need for companies to deliver product than in the people - students, teachers, and principals - who make the experience of learning unfold.

But more than anything, students, teachers, principals, and schools have been doing more with less for a while. The recession hit school budgets hard, and most have yet to recover. Sites like Donor's Choose highlight the reality that teachers, everywhere, lack the basic needs to run their classrooms. Teachers regularly buy paper and pencils for their classrooms, and some buy food to have on hand for students that are hungry. In Chicago, schools lacked toilet paper. In Philadelphia, a child died in a situation that would have been eminently manageable - if the school had money for a full time nurse. And this says nothing of the lack of arts, music, real physical education, and health education.

So if you're working in education, you will clearly need to do more with less - unless you are developing and delivering an untested curriculum as a model to an entire state. Then, you will get millions of public dollars to build your organization, so you can then turn around and sell material you have already been paid to develop to other underfunded public schools. If your curriculum doesn't work as promised, you have already been paid, and the teachers doing the actual work are an easy target for blame.

 

Resources

The following links point to the RFPs and contracts referenced in this post. Additionally, in case the urls pointing to these resources change, I have included copies of relevant documents in a folder on Google Drive.

 

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