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?Â
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.
I’m surprised textbooks haven’t gone open access. But maybe I shouldn’t be so surprised since I haven’t written/arranged one yet.
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?)
“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.” This is an interesting question. Superficially, it sounds like the old eel skins chestnut from contract law. If I provide you eel skins, and you know the reason I’m providing you eel skins is for either payment or return, then your keeping them constitutes an implied contract. So, you would be liable for breach of contract if you resell the book, at least in theory.
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).
If one goes to a used CD or DVD store, one will often find review copies for sale. And yes, they are marked. I recall the CDs had a hole punched in the cover art and not for sale embossed on the jewel case. Review DVDs sometimes display REVIEW COPY; NOT FOR SALE or FOR REVIEW USE ONLY as subtitle script that appears every so often throughout the film. As Frank notes with the advent of more precise tagging (a sort of rights management) one might be able to track who never use the copy in a way different than desired. The Academy of Motion Picture Arts and Sciences use such a method but I think they also have a contract with the members regarding what they may do with the review copies. As for unsolicited material, Bruce’s point about consumer law and Mike’s point about gift law seem to undercut the method of giving the text and placing restrictions of this type.
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.
Frank — The RFID idea is a variation on marking that creates a different product. New books increasingly come with bar code tags glued to inside pages; RFIDs could be used as well, or instead. But would publishers find them cost-effective on such a small scale? And imagine the privacy implications of tracking these down!
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.
Ah cut LP covers, I remember the first time I saw one has no clue what was going on until a salesperson at Rhino Records in Claremont, CA told me what it was. In any event, I see your point about a clean slate and agree that today’s hyper-sensitive IP environment would support creating this new approach, but I wonder whether building it would work.
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.
I often come across these in thrift stores and I buy them – and the thrift store sells them to me. And then I sell them. Not on Amazon – not allowed (though many do it) but on some other sites that allow me to list them. The money I earn goes to my daughter so she can buy the over priced textbooks required for her college courses.
Mike,
Are you sure your library gives them away? I have heard that libraries sell excess copies they don’t want for their collections.
That’s what our librarian tells me. The books set out on a cart in the main public area, with a sign that indicates that they are free for the taking.
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