Updates on the New Media Consortium bankruptcy: a purchase, an intervention, and possibilities

Here’s an update on the New Media Consortium bankruptcy story (and here are my previous posts, if you’d like to catch up).  Several important things have happened over the past week.

Yesterday EDUCAUSE successfully acquired the NMC’s intellectual property.  The organization’s president, John O’Brien, posted about this last night after the court action:  “I’m pleased to share with you that today the court accepted our offer, agreeing that it was in the best interests of the organization and the NMC community.”

That purchase assigns additional NMC intellectual property to EDUCAUSE, beyond Horizon.  EDUCAUSE filed a clarification with the court, clearly naming several other assets:

All of NMC’s interest in all current, past, and archived research, publications, and completed/partially completed projects, including but not limited to the NMC Horizon Project and all ‘Horizon Reports’ all Technology Outlooks, all Strategic Briefs, and all iterations thereof…

The bankruptcy case is still proceeding, from what I can tell.  PACER lists the case as “Pending status: Awaiting Trustee’s Report”.  Outstanding debts remain, as they weren’t part of the EDUCAUSE purchase, as far as I can tell.

Also on February 14th, the Consortium For School Networking (CoSN) filed a motion asking the court to state if they were selling the K-12 Horizon Report to EDUCAUSE.  CoSN helped produce several K-12 editions (for example, the 2016 and 2017 editions).  In fact, in their view, and here I’m quoting from court filings, NMC “granted CoSN an unlimited license to use the 2016 K-12 Horizon Report in perpetuity.”  Indeed, CoSN asked the court to name that report, “including the 2016 and 2017 K-12 Horizon Reports or future reports”, as “CoSN Intellectual Property”, and also to tell EDUCAUSE not to abuse their trademark.

A few thoughts: as I’ve said elsewhere, EDUCAUSE is doing a very good thing here by saving Horizon and the other reports from either disappearing or being bought by a bad actor.  Bravo!

CoSN’s filing: I don’t know enough about that collaboration to assess the claim’s merits.  I can imagine the Horizon heritage splitting into two parts, now, with K-12 owned by CoSN (should they purchase it, or just successfully assert they own it already) and post-secondary being in EDUCAUSE’s domain.  I don’t know if other entities will follow suit to carve up other Horizon domains, such as nations or professions.

Shrinkage: it looks like the ed tech world’s professional development sphere is down one organization.  A few years ago, it lost another when NITLE (where I once worked) died.  Possibly we’re following the arc I wondered about in December, whereby the number and scale of professional organizations shrinks.

FOECast: we’re still working.  I will have an announcement about an exciting event on this front shortly.

Oh, I should probably add these disclaimers, based on some rumors going around, and on potential whispers:

  • I am not a lawyer.  I have consulted with law schools and researched the profession as part of my futures work, but have not attended a law school.  I do seek legal advice from around a dozen smart lawyers. I do know some brutal lawyer jokes. In following this story, I’m doing the best I can, and welcome all input, criticism, and advice.
  • I learn about these things through the open web, and by poking around the official PACER court documents site (which does charge me copying fees for every pdf page I examine).  This is the research anyone can do.
  • The CoSN move doesn’t connect with me, as I never worked on the K-12 reports.  I did work on Horizon for many years, and also helped produced some of the other documents now named in the suit, like the 2017 digital literacy briefing.
  • I am not an NMC employee (which would be hard to do in any case, since they’re being liquidated), nor do I attempt to represent the NMC organization or its staff or board members. (Here’s my repeated disclaimer.)

That’s all for now.  More updates as things progress.

What do you make of it all?

(via Taylor Kendall)

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10 Responses to Updates on the New Media Consortium bankruptcy: a purchase, an intervention, and possibilities

  1. I can’t help viewing both extreme shrinkage and a possible K-12/higher ed split with concern. One big major ed tech research / media organization can start to feels like a monopoly. A number of public education advocacy groups (e.g. NPE, BATS, EdBlogNet) are already concerned about EDUCAUSE’s corporate and foundation supporters — and the potential for undue influence. In the times, public education needs more and better K12 and higher ed connections, not fewer.

  2. Michael Berman says:

    Collaboration between K-12 and higher ed is both essential and difficult. In NMC’s case, K-12 participation was more of an aspiration than a reality.

    • Bryan Alexander says:

      Agreed on “essential and difficult”.
      Do you think we’ll see EDUCAUSE and CoSN divvy up the Horizon legacy, or will they throw bridges across that gulf?

      • Michael Berman says:

        That’s up to EDUCAUSE now. I do believe that the current leadership of EDUCAUSE is more open to collaboration across organizations and sectors than ever before, so we shall see.

  3. Joe Murphy says:

    Interesting – the 2017 NMC/CoSN K-12 Horizon Report includes both a copyright statement (to NMC) and a CC-BY-4.0 license. It seems like this could be an important precedent regarding CC licensing. (Which I know you’ve said before, but now the court has an actual claim to evaluate. And since we’re doing this, I am also not a lawyer.)

    Regarding the fact that you’ve been paying per page for these PACER results, I’m just going to point out RECAP, a project which tries to collect those PACER findings and contribute them to a collection at the Internet Archive. Every little bit helps. https://free.law/recap/faq/

    • Michael Berman says:

      Joe, I’m not sure it’s a contradiction. CC licenses are granted as part of a copyright, so NMC (and now EDUCAUSE as its successor) owns the copyright and grants a broad range of uses using the CC template. Or am I missing something? MB

      • Joe Murphy says:

        Maybe “precedent” is the wrong word, Michael. Maybe it’s an opportunity for explanation or understanding. It’s been my impression that the community which uses CC doesn’t have a good sense of what happens when licenses are changed or change owners. Of course you’re right that the legal community will have a standard answer on file.

        In part, this potential confusion feels related to the way some of us have talked about CC as an “alternative” to copyright and not as a subset of activity within it. Or maybe it’s just me.

        • Bryan Alexander says:

          People have always spoken of CC as an alternative to copyright, and with reason. CC licenses offer different ways to structure intellectual property than offered in normal copyright.

          It looks like CC isn’t playing a role in this case (so far). I did raise it with the trustee.

        • Michael Berman says:

          I understand CC as a specific tactic for working *within* existing copyright law, at least as it’s understood in North America. And my understanding is that it’s intended to be an irrevocable license – so a subsequent owner of IP that has a CC license cannot then attempt to revert the content to make it less available. Has this ever been tested in a court of law? Not to my knowledge. But that’s the goal.

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