Fight Fiercely, Harvard!

Princetonian Howard Feld properly takes the Harvard Coop to task for a bizarre, over-reaching application of unspecified intellectual property law.  As a Yalie, I’m happy to pile on.

For many years, the Coop has been the default supplier of textbooks to students enrolled in Harvard courses.  Now, in the face of competition that offers the same books at lower prices, the store has decided to expel students who take notes that consist of book prices or ISBN numbers.

From the Coop’s point of view, is this any different from “No shoes, no shirt, no service”?  I don’t think so, and this isn’t the first store to try to manage access to the prices on its shelves.    If the store wants to eject prospective customers for misbehavior, it has the presumptive right to do so (unless Massachusetts law says otherwise for some reason).  From a competition point of view, and if we take the problem out of the IP context — as we should — below, even the Supreme Court recognizes that both manufacturers and retailers have something valuable at stake here.  Last term, the Court decided Leegin v. PSKS, which overruled the proposition that minimum price resale price maintenance agreements between manufacturers and retailers are per se aniticompetitive for antitrust purposes.  Few retailers want to pay to supply high-end marketing and service to customers who buy the same products from discounters.

But there’s no need to confuse the issue with an assertion of unspecified “intellectual property rights” in book prices or ISBN numbers.  There is no plausible reading of any IP doctrine that gives the Coop a right in the ISBN numbers.  [Updated 9/22:  Or in the collection of ISBN numbers that correspond to books assigned for a specific course; any alleged copyright in that collection would belong either to the teacher or to the University.]   A handful of (wrongly decided) cases create copyright interests in prices, but even a generous reading of those cases shouldn’t help the Coop.  Textbooks are commodities sold in large quantities via a retailer’s shelves, not the kinds of subjectively-valued things sold in negotiated transactions (collectible coins and used cars) that are at the bottom of the best-known pricing cases.  The Coop doesn’t engage in the remotest copyrightable “originality” or “creativity” when it sets the price of a Physics text.  There is no secret pricing process that the students are appropriating when they record book prices.  There is no IP-related unfairness inherent in a book-buyer collecting price information and shopping for the best price available.

I can appreciate the Coop’s fear that it can’t survive in a competitive bookselling world.  The Coop should simply come clean about what’s at stake, instead of hiding behind the IP facade.   Post a large, clear sign at each entrance to the store that says:  No customers will be allowed to exit the bookstore unless they purchase a book.  Fight fiercely, Harvard!