Are you sure your library gives them away? I have heard that libraries sell excess copies they don’t want for their collections.

The analog aspect of the book industry seems to track the LP and pre-ripped CD world such that attempts to build a no-resale norm would fail. The costs of reproducing the item are high and the costs of enforcing the not for resale claim are high if not impossible without tagging etc. Now when (and yes I mean when) a digital book becomes viable to read and mark, I think we will see the book industry go through a similar battles as the music, TV, and film industries. Only at that point the book industry will have some insight about how to overstate the harm and lobby for increased control over the product or access to the product. So the attempt to start such an ethos may be the sign of things to come (as I think you are indicating) and that probably does not bode well for books. I have yet to see such labels but will keep an eye out. For now I too give the extras away. Last, thanks for the cite; I’ll take a look.

Bruce — In the post, I deliberately avoided going through the doctrinal twists and turns that could be used, in theory, to find an obligation. It can be done, I agree. Somewhere in the distant past, I may have requested a review copy from the publisher and assented to reasonable implied terms disclosed to me at the time, which might have included a promise not to resell that copy or any future review copies. Or an implied contract might be constructed based on a “you don’t get to keep something for nothing” rationale when most of us, as authors, understand something of the publishers’ business. Personally, I get tired of doing doctrinal somersaults like these; I’d rather simply have the debate that acknowledges either that these things are OK because we like to protect the publishers (and implicitly, at least some authors), so let them go, or they’re not, because we’d rather protect consumers.

Deven — I thought of the record/CD examples after posting the note. Record companies have tried to do this sort of thing for a long time, though there is a subtle technical difference: punching a hole in the album cover or cover art (or cutting off the corner) isn’t the same thing as marking the IP item itself (as in the review DVD example). The album or CD can be repackaged in an unmarked cover or case. There are some older cases involving “limited label” records, with the limitation marked on the record itself, see especially RCA Manufacturing Co. v. Whiteman, 114 F.2d 86 (2d Cir. 1940) (Hand, J.), that holds, without putting a fine point on things, that the limitations can’t be enforced.

But that difference may not be important. Instead, the fact that there is a flourishing secondary market for “not for resale” records and CDs means, I think, that the record companies’ effort to generate an “observe the restriction” norm has failed. And it failed a long time ago. I remember seeing cut-out record albums in store bins in the mid-1970s. The Hand opinion suggests that I was seeing the tail end of a long-standing practice. Today, however, casebook publishers have the advantage of starting on a relatively clean slate (have you ever seen this kind of thing on a teaching text?), and starting in an anxiety-about-IP environment that creates a meaningful possibility of success.

What do I do? I give the extras to our law library, which gives them away. I toss out unneeded Teachers’ Manuals.

It appears that there is a difference between the person who asked for tax and then sells them and all the free marketing copies. Still the difference is small. In both cases, one could receive the book, review it, and choose one text. What to do with the rest? Sell them? Maybe give them away? The textbook companies are offering the text for the possibility of use. I doubt that the review copy market cuts into the sale-to-student market that much as such the do not use tagline seems more like someone infected with the protect all IP and can control all IP bug.

However, there’s consumer law out there to the effect that companies that send you unsolicited stuff in the mail can’t demand payment for it and can’t require you to return it. I’m not sure how that would apply to a “no sale” requirement, and I’m also not sure if you would constitute a “consumer” in this context under the relevant law or regulation (whatever it is).

Would the analysis change if they put an RFID “radio identifier” to indicate that that is Madison’s copy of the book? And, say, specified liquidated damages of $10,000 on the book cover if they found a student with it? (And, say, offered a $1000 bounty to students?)