Publisher 'DRMs' Physical Legal Textbook About 'Property,' Undermines Property And First Sale Concepts

from the because-that's-what-publishers-do dept

We’ve talked in the past about just how badly certain industries would love to expand the restrictions created by DRM onto physical goods. And that’s because, unlike what copyright system defenders like to claim, DRM allows companies to put restrictions on content that go way beyond what kind of restrictions can be placed on physical goods. For example: the right to resell something. In the copyright space, we’ve long had the first sale doctrine, which makes it possible for you to resell a physical book you own, without having to first get permission from the copyright holder. Of course, first sale has long been under attack, especially by academic publishers who absolutely hate the idea of a resale market. That’s because they are monopoly providers — professors assign the textbooks, and students need to buy them, leading to ridiculously inflated prices. Of course, what publishers still don’t seem to grasp is that a healthy used market actually increases the value of the primary market, since buyers are more comfortable knowing they can at least make back some of the money at the other end.

But, the attack on first sale continues. Somewhat ironically, the next front in this battle is coming from the publisher Aspen, which publishes a very popular (in law schools) casebook on Property. It has started informing professors that with its next version, students will be required to give the book back at the end of the semester, and that the book cannot be resold. In “exchange” for this, it will grant students “lifetime” access to a digital version.

Law professor James Grimmelmann has explained what’s going on here: Aspen is trying to do away with first sale rights. Basically, relying on a terrible appeals court ruling in Vernor v. Autodesk (which the Supreme Court refused to hear on appeal), Aspen is seeking to claim that you’re merely licensing the textbook, rather than buying it:

The obvious goal is to dry up the used book market by draining the supply of used copies. But as Josh points out, it seems unlikely that every student will return the physical book. Rather, reading between the lines, Aspen may argue that the physical book is “licensed” rather than “sold” under the reasoning of cases like Vernor v. Autodesk. The result would be that first sale (the right of the owner of a book, or a DVD, or any other copy of a copyrighted work to resell it freely) would never attach, since the students wouldn’t be “owners” of their physical copies. If Stan Second-Year sells his copy of the new Dukeminier to Fran First-Year, he’d be a copyright infringer in the eyes of Aspen. So too might be Half.com or Barnes and Noble, if they participated in the transaction. Just to make sure that students know they’re only borrowing Aspen’s books and “agree” to those terms, it appears, students will have to purchase Connected Casebook access through Aspen’s website or a participating campus bookstore.

Grimmelmann goes on to point out that not only will this undermine the important and useful concept of first sale (and the resulting used market in these works), it will “result in the destruction of knowledge” in that it’s likely that Aspen will simply destroy these books, rather than set up any sort of resale market itself. As for the claim that “well, at least they have ‘lifetime’ access to a digital version,” Grimmelmann points out that given that such access is dependent on Aspen continuing to provide such access, the lifetime guarantee is not much of a guarantee at all.

Aspen promises “lifetime access” to the electronic versions, but we know from sad experience that gerbils have better life expectancy than DRM platforms.

He has also set up a Change.org petition, trying to get Aspen to reconsider its decision to ban the resale of textbooks, and basically “DRM” their physical books, wiping out first sale. Just the very fact that Aspen is undermining basic concepts of property on its “Property” casebook seems troubling enough — but it shows how desperate publishers are these days to undermine basic concepts of property to prop up obsolete business models, built entirely on the basis of monopolistic pricing.

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Comments on “Publisher 'DRMs' Physical Legal Textbook About 'Property,' Undermines Property And First Sale Concepts”

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69 Comments
That One Guy (profile) says:

Good idea, wrong method

Forget the petition, the schools just need to tell the company that thanks to their actions, the school will now be looking for other sources for their course books, and then follow through with it.

Suddenly going from decent profits to none will get their attention much better than some pathetic petition(‘Looks like a whole bunch of people signed the petition asking us to re-consider out choice regarding the book licensing.’ ‘Did they still purchase the books?’ ‘Yes.’ ‘Then why should we care?’), as well as serve as a pointed lesson to any other companies considered following their example.

That One Guy (profile) says:

Re: Re: Actually it IS the right method

Still, the idea remains the same, refuse to do business with them and go with a different company. The petition will only work after all if the ones signing it follow through, as if they sign, yet buy anyway, then it was nothing more than a waste of their time.

Unless the professors are getting some sort of kickback, or provided another reason to only get books from that one company, not having to deal with any bureaucracy in making that decision would, if anything, seem to make it easier.

Mason Wheeler (profile) says:

Monopoly economics are not market economics

Of course, what publishers still don’t seem to grasp is that a healthy used market actually increases the value of the primary market, since buyers are more comfortable knowing they can at least make back some of the money at the other end.

In a free market, yes, that’s absolutely true. But you just got done explaining how this is 1) a monopoly publishing system and 2) required by the professor, which means that the student does not have the choice not to buy the product. (Especially if the class is a required class for them and therefore “just don’t take the class” isn’t an option.)

Free market economic principles are only valid in a free market. When monopolistic conditions exist, the market is not free, and free market principles go out the window, replaced by an entirely new set of rules: monopoly economics. And under these principles, a secondary market does nothing to improve the willingness of a student to buy your product, because they aren’t buying it willingly in the first place; they’re buying because they have no choice.

Pragmatic says:

Re: Monopoly economics are not market economics

Free market economic principles are only valid in a free market. When monopolistic conditions exist, the market is not free, and free market principles go out the window, replaced by an entirely new set of rules: monopoly economics.

What Mason Wheeler said. Read and heed it, people.

The same goes for oligopolies, monopsonies, cartels, and other distortions. Which is why I am currently blue in the face from declaring that there’s no such thing as a free market.

Trevor says:

Recent Law School Grad (Dec. 2012)

Can Confirm. have YET to look at any law school case books since taking the bar. LexisNexis and Westlaw are so much better. I have been practicing for 11 months now.

Therefore, lifetime access to a book I never need again is not an adequate replacement of the potential money I could recoup by reselling it.

Anonymous Coward says:

Re: Recent Law School Grad (Dec. 2012)

Can Confirm. have YET to look at any law school case books since taking the bar. LexisNexis and Westlaw are so much better. I have been practicing for 11 months now.

Therefore, lifetime access to a book I never need again is not an adequate replacement of the potential money I could recoup by reselling it.

I kept all of my law books, and I reference them frequently–even reading cases that weren’t assigned. But I’m not practicing as you are, so our experiences aren’t necessarily comparable. I’d be bummed if I couldn’t keep my books since I annotated and highlighted them.

G Thompson (profile) says:

Re: Re: Recent Law School Grad (Dec. 2012)

This!!!

actually since I highlighted and wrote in margins (sometimes doodling..but thats another story) and I know nearly all other Law students have, are, and will always do this then this becomes an interesting legal conundrum..

Does the act of highlighting and annotating then create a transformative work? Have I by the sweat of my brow slogging through the boredom that is property law contributed to creating a new and wondrous work from my usage of this ‘licensed’ (what a load of twaddle) physical thing?

That One Guy (profile) says:

Re: Re: Re:

I believe the point being made is that if the books are mandatory purchases, as they would be for a collage course, and it’s also mandatory that you return them after a period of time(Why? Because ‘screw you’, that’s why), then they better be offering to refund some of the purchase price in exchange for getting the book back.

However, unless I missed something, that is not part of the offer. Rather, in exchange for a perfectly good text-book, you get nothing more than a ‘lifetime’ access pass to an ebook version of it, which will undoubtedly be rendered useless for any future courses you might take on the same subject due to the frequent shuffling of the exact same content to force people to buy the ‘updated’ versions, and which will be lost as soon as they decide they don’t want to support the servers hosting it anymore sometime down the line.

Anonymous Coward says:

It’s kind of like how home owners don’t actually own the land their house sits on. All they really do is lease that land from the state, and if they don’t keep up with their lease payments (taxes), the state reclaims that land and anything sitting on top of it. Which includes your house.

Just another attempt to strip people of their right to own property.

tebee (profile) says:

Two questions occur to me

What happens if I lose the book or have it stolen ? Do I get sued for breach of my licence conditions for not returning it ?
If I mess up my ear and have to resit it, do I have to buy the textbook a second time the next year ?

But it seems a monumentally bad idea to try to do this to bunch of people who are studying property law, I presume this book will touch on the first sale doctrine it some point. When they read that will they not question the basis on which they where sold it ?

Andrew D. Todd (user link) says:

Re: Creating Free Textbooks: Most of the Work Has Already Been Done (to Anonymous Coward, #10)

A legal casebook is not like other textbooks. Perhaps it is closer to a course packet. A casebook consists, overwhelmingly, of copies of judicial opinions, in court cases, which have their own unique citations. There is no copyright in judicial opinions, because they are government documents. Casebooks exist because it was not expedient to have a hundred or two hundred law students all chasing after the same page of the same volume of the same law report series in the law school library. People would begin using razor blades to slice out pages, and similar pleasantries.

In smaller disciplines, such as Anthropology, where I started, where there are fewer students chasing after the same book, it is normal to send students out to find and photocopy their basic reading for the week. It’s good training to make students find stuff where it is, and look around to see what else is there, rather than narrowing their compass to a purchased textbook. Of course, in such fields, the students rapidly specialize to the point that a professor only has one student every five years or so who is interested in reading a given text. When I had to get a long-out-of-print book via interlibrary loan, I made one copy for myself, and a second copy for my professor, nd the professor said, regretfully, that it was a pity we couldn’t just deposit a third copy in the university library.

However, in the case of Law, with the internet, the limitation of numbers does not apply, and the opinions are widely published on government websites, Findlaw, Cornell University Law School’s site, etc. The publisher is not allowed to change around what, say, Judge Learned Hand, said, fifty to a hundred years ago.

http://en.wikipedia.org/wiki/Learned_Hand

A new edition of a textbook has new cases, but there are never very many of these. I don’t see why someone couldn’t learn law with a really old casebook, twenty or thirty years old, a brief outline/syllabus, and access to the internet. All a law professor has to do is to write a standard citation code on the blackboard instead of a page number, and stand back and let Judge Learned Hand speak for himself. As a trained academic scholar, I taught myself copyright law from an old textbook which I found for about four dollars in a Salvation Army store.

Pragmatic says:

Re: Re: Creating Free Textbooks: Most of the Work Has Already Been Done (to Anonymous Coward, #10)

As a trained academic scholar, I taught myself copyright law from an old textbook which I found for about four dollars in a Salvation Army store.

As a Pirate Party supporter, I taught myself copyright law for free via the internet – mostly Techdirt. I actually started out on the side of the maximalists because their view was more prevalent and they still own the narrative. It was only through reading TD and Pirate Party ebooks and websites that I learned that there’s another side to the story and that the **AAs are the bad guys.

I changed my mind when I realised the importance of the public domain, that it is being robbed by extending copyright length, and that artists and creators aren’t always the copyright holders.

What really swayed me was the sure and certain knowledge that copyright is not for the little people, it’s for the big corporations. We’re given the illusion that enforcing it more harshly will benefit us. As I pointed out yesterday, it doesn’t. We ourselves have no long-term investment in this and receive no dividends from it.

The best we can expect from increased copyright terms is double-digit sequels to crappy movies because we’ve finally run out of public domain stuff to utilize and the studios can’t use anything else due to licensing issues.

RE: the article, Kirtsaeng was a terrifying case because it would have raised the specter of perpetual copyright. These guys are committing theft by claiming that you’re buying their book when believe me, they’ll yank it right back by forcing you to pay for updates or continued access at the first opportunity. If you’re only renting, you should be allowed to pay rental prices.

Roger Strong (profile) says:

Lifetime Access...?

It’s normal to see college textbooks become obsolete after just two or three years. Students aren’t allowed to use a calculus or Latin text book from the year before, because math or language has changed too much.

Anyone want to bet that Aspen’s “lifetime” access is only to the revision the students paid for, with upgrade fees for revisions published later during that “lifetime?”

Anonymous Coward says:

Re: Lifetime Access...?

It’s normal to see college textbooks become obsolete after just two or three years. Students aren’t allowed to use a calculus or Latin text book from the year before, because math or language has changed too much.

What is much more common is that the contents and examples are shuffled about a bit, so that the same content is presented in a slightly different fashion, requiring that students have the same edition so that when an instructor refers to a page or example in the book, they are all looking at the same thing.

Anonymous Coward says:

Re: Re: Lifetime Access...?

What is much more common?

I recall only a few classes where the professor was writing the textbook, and each new quarter had to get the latest draft bound by the copy shop.

Curiously enough, 300-level Multivariable Calculus was one of those classes. I still own that book. It’s spiral-bound, with a clear plastic cover.

That One Guy (profile) says:

Re: Lifetime Access...?

‘Calculus or Latin‘? Math and a dead language are probably not the best examples of ‘changing’ subjects, as those are usually fairly solid, the reason for ‘needing’ new books is generally as the AC above notes, where the publisher will shift the exact same content around so that books/teacher’s manuals from different years won’t be compatible.

Roger Strong (profile) says:

Re: Re: Lifetime Access...?

Math and a dead language are probably not the best examples of ‘changing’ subjects, as those are usually fairly solid,

Good point. Wheelock’s Latin is only on their 7th edition in the last 50 years. Three editions since 1992. The Cambridge Latin Course is only on it’s fifth edition since 1970. Latin for Americans is on only its 9th edition. Other subjects are replaced much more often.

I forget which edition my Calculus book was, but it was nowhere near the first, and we couldn’t use the previous year’s edition.

Anonymous Coward says:

Re: Re: Re: Lifetime Access...?

I forget which edition my Calculus book was?

How much computing power were students expected to use? In class? In the math lab? At home?

Good grief, did your university even have a computing center? Did they let undergraduates anywhere near the mainframes?

Roger Strong (profile) says:

Re: Re: Re:2 Lifetime Access...?

Sharp PC-1401s. 4K RAM. 0.0005Ghz clock speed. 16 character display.

We were doing circuit design using Nodal analysis and Mesh analysis. Each problem could take three full pages of scribbled calculations to get a result. Which in turn meant a high probability of a mistake at some point. And little chance of finishing an exam before the deadline.

And so it was strongly suggested to us – after the course started – that we all buy Sharp PC-1401s from the college book store. We copied a BASIC program around to do the analysis.

After that exam they taught us calculus. The same questions could be solved with about 1/20th the work and time. Which raised the question, “Why didn’t you just teach us calculus to begin with?”

Anonymous Coward says:

Re: Re: Re: Lifetime Access...?

It’s well known that even with subjects where the material doesn’t change, publishers rearrange the book every few years simply so that none of the page references match anymore making it a different book on the same material where it would be very difficult for a student to use an older edition in the class that was different than what everyone else had even though it may contain exactly the same material.

DB (profile) says:

As noted above, taking their claimed “licensing” at face value could prove interesting in the case of theft, loss or simply misplacing the text.

Presumably the publisher intends to sue Amazon/FleaBay/seller for selling stolen property if a used copy comes up for sale. But not every used copy will be stolen property, and not every locale has laws that support such a suit.

One situation is that insured personal property is lost, the insurance company pays off the claim, and the property is later recovered. In most states insurance companies have clear title to the property. Sure, they’ll often work with the insured to sort things out, but long ago they put laws in place to protect their interests. They paid for the property. It’s now theirs. Sure, it might have some ridiculous text inside. But that’s not their problem. It looks like a book, smells like a book, and quacks like a book. It’s a book. They know how to liquidate books. Just like stolen furniture, or paintings, or silverware that was recovered: you sell it.

Anonymous Coward says:

‘you’re merely licensing the ********, rather than buying it’.

now who started this piece of crap and why has nothing been done to stop it spreading?
i suggest it was another section of the ‘entertainments industry’ and was allowed to continue, unchallenged, because of the usual ‘i’ll scratch your back, if you’ll scratch mine!’ meaning that if the industries were allowed to carry on with this, before long it would become the norm, meaning that nothing that was bought, was actually only licensed or leased, not purchased. if this thinking/practice is extended to everything, as i am sure other industries/services will want/try to do, it will be fine until one of the original starters gets caught up with it and doesn’t like it. could be interesting!!

Kronomex (profile) says:

What’s next, microchipping all books like they do with dogs and cats? How about printing books with ink that after the allotted usage time frame fades of self combusts. This greed by corporations is now beyond a joke and nothing will be done, except for polite tut-tutting from sock puppet governments, to reign them in. I have to go now a book I purchased twelve months ago to the day is starting to smoke.

That One Guy (profile) says:

Re: cool story bro

Ah the good old elitist idea of ‘Only the rich and well off deserve the opportunity to better themselves with education, the rest of you peasants deserve only to obey your betters’.

Oh yeah, that mindset will get you so much sympathy from the general public and those with basic decency… /s

Removing first sale right is in no way an ‘enforcement of copyright’, in fact it’s showing a pretty healthy contempt for the law by bypassing it using private contracts, but hey, I suppose you just can’t get that warm and fuzzy feeling without at least one strawman and/or ad hom in your posts, now can you?

Cody Jackson (profile) says:

Don't really see the difference

How is getting a lifetime subscription to the electronic version any different than just keeping the book?

Assuming the student wants to keep the book rather than sell it, especially if they highlighted it or made notes in it, then how is the electronic version any better? Unless the ebook is updated on a regular basis but, if it’s a casebook, I can’t see a lot of changes being necessary.

Plus, I don’t really see how this is enforceable. It’s a physical book. If you don’t give it back at the end of the year, there is nothing the publisher can do about it. And if the student sells it personally, i.e. not through the campus book store, who’s going to know that it even occurred?

Basically, it’s not going to stop the used-book sales but it makes the publisher look like a buffoon and lose any respect they may have had.

Pragmatic says:

Re: Don't really see the difference

I hope someone does this and it goes to court. The publisher will be forced to admit that the students don’t own the book so there was no sale; they were duped into paying through the nose for a temporary license and an ebook that they probably can’t copy for use in other formats.

Needless to say, any updates will have to be paid for.

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