EFF has been fighting for years for the principle that if you bought it, you own it. The first sale doctrine – the law that allows you to resell books and that protects libraries from claims of copyright infringement – is crucial to consumers. Unfortunately, first sale has been under threat in the digital realm.
EFF has been fighting for years for the principle that if you bought it, you own it. The first sale doctrine – the law that allows you to resell books and that protects libraries from claims of copyright infringement – is crucial to consumers. Unfortunately, first sale has been under threat in the digital realm, as copyright holders increasingly insist on saddling “sales” with onerous restrictions. You may think you are buying a product (like software, music and ebooks), but as far as they are concerned, you are just renting it, on their terms, whether you know it or not.
The latest attack on first sale comes from Aspen Publishers, and the target is the lucrative textbook market. Aspen is insisting that students who are assigned and purchase physical textbooks Aspen published cannot resell those books to recoup some of the expense.
Aspen announced its move in an email to professors. In the coming academic year, Aspen declares, its popular property law case book will only be available under a so-called ‘Connected Casebook’ program. Students will still pay full price (a cool $200) but will be required to return their casebooks at the end of the semester. Students will supposedly also receive “lifetime” access to a digital companion to the casebook. But, as Professor James Grimmelmann noted, “we know from sad experience that gerbils have better life expectancy than DRM platforms.”
The ‘Connected Casebook’ program is a cynical ploy to destroy the secondhand market for books. This is not a situation where Aspen is offering a cheaper rental alternative. Students still pay full price. And students can mark-up and highlight their books (meaning the books will likely be pulped after return to Aspen). The only real change is that students can’t sell their textbooks to next year’s class. With textbooks already adding enormous cost to education, this is a lose-lose deal for students.
What is worse, Aspen’s new program sets a dangerous precedent that flies in the face of long-standing first sale protections. Back in 1908, the Supreme Court ruled that a publisher could not prevent consumers from reselling legally purchased books. The Court reaffirmed this principle just last year in a case involving textbooks. Aspen appears to be hoping the some recent bad decisions involving first sale and software can be extended to the physical realm. We hope courts would not allow this. If Aspen’s ploy is successful, it could threaten used bookstores and even libraries.
Aspen is offering this outrageous deal because they think they can get away with it. The company is counting on professors being reluctant to change their syllabus. Once the casebook is assigned, students will feel forced to buy – sorry, license – the required text under unfair terms. But there’s still time to fight back. Professors: Refuse to assign casebooks that students can’t keep. Students: Ask your professors – now, before the semester ends – not to build their class plans around books locked down by such onerous restrictions. If the market rejects Aspen’s ploy, we won’t need to challenge it in court.
Finally, concerned professors and students should join our growing campus activism mailing list to learn more about how to engage in digital rights issues on campus.
UPDATE 5/8/14: It appears that Aspen has changed course. After a day of fierce criticism, it now says it will give students the option of buying the physical casebook or participating in its ‘Connected Casebook’ program. The program is still very problematic, however, as students who choose it will pay full price for a book they can’t keep or resell, and these books will likely be wastefully pulped. The requirement to return books still appears to be an unenforceable condition designed to defeat first sale. We’ll continue to monitor the situation – Aspen’s move looks like the first step of a longer campaign to keep students from exercising their right to resell textbooks and undermine the used book market.
