Will aggregated textbook products shift more risk to authors?

In a post on October 20, I described decisions made by the Southern District of New York in a lawsuit between authors and Cengage. The authors had alleged breach of contract as well as bad faith dealings by Cengage in regard to their products Cengage Unlimited and MindTap. Read about it here.

This is more of a thought piece—generated in part by an aspect of the authors’ allegations—about what would constitute goodfaith in a publisher’s interactions with authors. I ask this not as a legal matter, about which I am not qualified to opine, but as an ethical one.

The authors’ allegations stem from an uncontested aspect of both the MindTap and Cengage Unlimited royalty allocation models. In both products, Cengage counts a portion of each sale as non-royalty-bearing income. In the case of MindTap, that non-royalty-bearing portion is called ‘ancillary materials’ encompassing “tests, studies guides, exercises”. For Cengage Unlimited, this portion is called ‘courseware’ but apparently includes the same ancillary materials as MindTap.