WaPo's Kaplan Scolded For Demanding $300 From Student Trying To Sell One Of Its Books On eBay

from the let-me-explain-to-you-first-sale-rights dept

A recent NY Times article about the changes happening at the Washington Post noted that, for years, the company was boosted by its subsidiary, Kaplan, famous for its test preparation offerings. However, thanks to some new federal rules, that business has been shrinking. Apparently Kaplan’s lawyers are looking for other ways to pick up some spare cash — such as ignoring the First Sale doctrine that lets people resell legally purchased books without it being a copyright violation.

After sending a nastygram with a demand for $300 to a student who put up a used copy (which she had purchased used as well), a letter was sent to Kaplan’s lawyers from Paul Levy at Public Citizen explaining the law to Kaplan and refusing to give in to the crazy demands in the letter:

In fact, elisha8779 is a medical student who bought a used copy of the notes from another student. Regardless of whether Kaplan might have a contract action against that seller, Kaplan has no copyright claim against anybody, and it certainly has no claim against elisha8779. This issue was conclusively determined by the Supreme Court of the United States in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), a case that is still good law…. Consequently, in response to your “cease and desist,” elsiah8779 will not return any books in her possession and she is certainly not going to send you $300 dollars for having exercised her statutory first-sale rights.

Levy then goes on to directly scold Kaplan for this move and suggests that the company not pursue similar claims against others:

Beyond that, you and your client should be ashamed of yourselves for trying to intimidate students into giving up their first-sale rights. elisha8779 is not planning to file a class action for a declaratory judgment of non-infringement–she wants to get on with her life–but we are going to be looking for other clients who may not be so charitable toward Kaplan. I strongly suggest that you stop sending these frivolous demands.

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Companies: ebay, kaplan, washington post

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Comments on “WaPo's Kaplan Scolded For Demanding $300 From Student Trying To Sell One Of Its Books On eBay”

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Anonymous Coward says:

Only for monopolies

Of course, even WANTING to restrict resale only makes sense if you have a monopoly in the first place.

Imagine Ford telling people they can’t resell cars. Obviously, this makes Fords less valuable; so to avoid sales declines, they reduce the price a corresponding amount. If users of Fords want a new car they will have to throw out the old car instead of adding it to the overall used car market. With fewer used cars on the market, we would see an increase in the price of used cars… making the product of the OTHER car makers (who allow their customers to sell those used cars) even MORE valuable.

So, congratulations, you just managed to reduce the value of your product while increasing the value of your competitor’s products and without decreasing any of your costs – in fact, you now have the additional burden of monitoring the market to make sure nobody resells your stuff. Oh, and your salesmen hate you because they work on commission and since you’re selling the product for less money, they get less money per sale. Sure, the slight decline in the used market means more people need a new one – but the additional sales are as likely as not going to your competition. Unless, of course, you HAVE no competition – which is why I said that it only works for monopolies.

Not to mention the environmental impact. We’re better off if person A can resell the book/car to person B instead of person A and person B both buying the book/car and throwing it away (or even recycling it – that process isn’t 100% efficient) while it could still be useful to someone.

Anonymous Coward says:

Original Letter

From JustAnswer.Com what someone else received from Kaplan.

********* LLP is IP counsel to Kaplan, Inc. (?Kaplan?).
Your offer for sale of Kaplan USMLE Lecture Notes Step 1 (?Infringing Merchandise?), Auction No. ********** constitutes an infringement of Kaplan?s intellectual property rights and U.S. copyright laws.
Therefore, we demand that you immediately cease and desist from any and all offer for sale, sale, distribution and advertisement of Infringing Merchandise. We also demand that you:
1. Surrender all Infringing Merchandise in your possession.
2. Make payment to ?Kaplan, Inc.? by cashier?s check, certified check, or money order, for all damages and costs incurred by Kaplan in connection with your illegal transaction, in the amount of $300.00 to the undersigned at: *********************************************************
The deadline for your response is February 24, 2012.
This letter is sent without prejudice. Kaplan?s rights are hereby expressly reserved.

G Thompson (profile) says:

Original Letter

1. Surrender all Infringing Merchandise in your possession.


So they expect someone to Surrender any and all Infringing Merchandise that they have even if not at some stage owned or controlled by Kaplan, and lets not forget Infringing here is not specified as IP Infringement, could be Infringement of criminal law too. Hmmm They want all stolen goods as well.

This is like the old “we require all communication that has ever occurred regarding XXXXX” Its ambiguous, dumb, and pisses off everyone including courts. And is absolutely a good judge of whether the attorney/solicitor who wrote it is a complete moron who cannot understand law let alone the English language

Anonymous Coward says:

first sale and contracts

Can an author waive first sale doctine by contract? For example on the purchase page you have to agree to a contract that states you will not allow anyone to borrow or buy the test prep book you are purchasing (which costs several hundred dollars). In return the author provides a money back guarantee that you will pass the test the book prepares you for.

Chargone (profile) says:

first sale and contracts

… usually they try to tell you you either agree to it or must return the product to the place of purchase (which, here, thanks to laws pushed by the same industry who use said EULAs, you can’t do, save for a replacement copy of the exact same product if yours is somehow physically defective (something is wrong with the disk). )

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