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Professor Review Copy, Not For Sale

Like most law professors, I get books in the mail.  That is, I get promotional or “review” copies of law school casebooks from all of the major legal publishers.  I get copies of books that I teach from.  I get copies of their competitors.  I don’t have to request the books; because I’m on certain mailing lists kept by the publishers, a review copy of a new book shows up when it is published.  And I pay for none of them.  The problem, and a new solution, after the jump.

The problem is that there is a resale market for these casebooks.  Students pay $100 or more to buy a new copy, and my review copy is almost always exactly the same version as the one offered to students.  Third party book buyers troll the hallways of law schools looking for faculty interested in making a bit of pocket money.  I assume that some of these things show up on eBay.

The same problem — resale markets for teachers’ copies — exists in other academic disciplines, and in some respects, I’m told, it’s worse.  In some fields, teachers’ manuals come with exams that teachers can use in class, and they also include the answers.  At times, there is even a resale market for the teachers’ manuals.  Either some teachers are really foolish, or some teachers are desperately underpaid.

Contracts scholars can (and have) debated whether a formal contract law argument can be constructed that binds the teacher to a promise not to resell a review copy.  Remember that the usual situation is receiving an unsolicited review copy in the mail.  The usual analysis is that under these circumstances, the book should be treated as an unconditional gift, which the recipient can dispose of any way s/he likes, because the recipient hasn’t assented to any conditions or terms that purport to limit resale.  (Copyright lawyers will note the likely applicability of the first sale doctrine, Section 109(a) of the Copyright Act.)  Voluntary action may keep review copies out of the resale market; social norms or ethical constraints may apply.  I’m an author, too, and feeding the resale market with review copies potentially undermines both publishers and authors.  But in either case, even with a formal contract claim, enforcement is all but impossible.

Here’s one possible solution.  What if publishers wrapped review copies in cellophane shrinkwrap, binding faculty to a promise not to resell the copy?  The promise would be assented to and made enforceable by the recipient’s opening the wrapper?  (I’m skimming through Secrets of the Wholly Grill these days, a lawyer’s novel premised on a shrinkwrap license that accompanies a software-powered barbeque.  And yes, I know that certain book publishers in other fields have tried this sort of thing.)  The agreement is possibly enforceable, or possibly preempted by copyright law, but in either case enforcement remains a problem.  If the teacher breaches the agreement and resells the book, how can a court or the marketplace differentiate between books sold to students, and lawfully resold, and books subject to the review-copy-shrinkwrap?  It likely can’t be done.

So in this morning’s mail, I received a review copy of a casebook that solves the problem in a different way.  It’s the Third Edition of Lange, LaFrance & Myers, Intellectual Property: Cases and Materials, published by Thomson West, and on the front cover, in large bold letters, the following phrase is embossed: “PROFESSOR REVIEW COPY / NOT FOR SALE.”  Is this a legally binding constraint?  That is, if I sell the book to the book buyer who emailed me the other day, am I liable for damages?  I’m not certain, but I doubt it.  But is the book buyer likely to buy that book at all?  That’s where the difference may lie.  Maybe; maybe not.  Is the book buyer going to be able to resell the book — to students?  Online?  To a dealer that supplies student bookstores?  That, I suspect, is where the trail may end.  Not because the law has intervened, but because the book publisher has split the market, by differentiating the marketable thing from the unmarketable thing.  It’s a bit like stamping “do not duplicate” on certain keys.  To my knowledge, there’s no legal impediment to copying the keys, but the notice creates enough doubt that many locksmiths will not copy them anyway — and many consumers won’t try to have them copied.

Let me turn this around, lest I come across as an unambiguous endorser of what Thomson West is doing.  I assume, along with most people, that how a publisher binds a book is entirely up to the publisher.  The law does not constrain that discretion — for the most part.  But to the extent that the “NOT FOR SALE” notice is not legally enforceable, and to the extent that these review copies are (or should be, legally speaking) as freely marketable as copies sold originally to students, then the notice may be misleading — and even (in theory) actionable in its own right under consumer protection statutes, or under some innovative application of the doctrine of copyright misuse.  I’m assuming for now that the content of the review copy is identical to the content of copies sold to students.  If Thomson West split the market by doing more than using a different cover, the notice might not be misleading.  That raises some interesting questions analogous to antitrust claims surrounding bundling and unbundling and market dominance.  I won’t pursue them here.  But — Microsoft and browsers and media players, anyone? 

I have no idea whether the authors of this casebook participated in the decision to label the book.  I do want to praise them, however, for the dedication that appears in the front of the book:  “The authors dedicate this edition to Tom Blackwell / 1961-2002 / Gladly wolde he lerne, and gladly teche.”  Very classy.  Well done.