Guest Post: Standing up for the First Sale Doctrine

By Meg Kribble, chair, AALL Copyright Committee

Last week saw great outcry over Wolters Kluwer Aspen Law’s new Connected Casebook program. Under the proposed program, new casebooks would come with access to Aspen’s Casebook Connect digital platform including promised post-term access to the ebook edition with note taking tools and other digital bells and whistles. The catch? Students would be required to return the print books to Aspen at the end of the term, even highlighted and marked up. The tradition of selling the book to another student to recoup some of the expense would not be allowed.

Although Wolters Kluwer has backtracked and says they will continue to offer a traditional print book that students may retain or dispose of how they wish, the Connected Casebook is still an option for students and remains problematic for many reasons, perhaps most of all because of its encroachment on the first sale doctrine.

As many of you know, the first sale doctrine—allowing purchasers of legal copyrighted works to re-sell, lend, rent, or give them away—has been an important part of U.S. copyright law since the Supreme Court recognized it in Bobbs-Merrill v. Straus. The Copyright Act of 1976 codified it as 17 U.S. Code § 109. It was re-affirmed by the court as recently as 2012 in Kirtsaeng v. Wiley, applying the doctrine to works lawfully made overseas. The first sale doctrine is an essential protection of libraries’ right to lend our materials.

Wolters Kluwer Connected Casebook is troubling because it involves an attempt to shift print copies of books from a traditional sale to a license agreement. Some have suggested the proposal was a purposeful experiment to see if consumers would accept it—or as the Electronic Frontier Foundation posits, “a cynical plot to destroy the secondhand market for books.” Duke’s Scholarly Communications Officer Kevin Smith compares the plan to Ford including a provision in its sales contracts to prevent resale of its cars. Joe Patrice at Above the Law observes that Wolters Kluwer’s actions should have been foreseeable in light of Bowman v. Monsanto, the case in which the Supreme Court held that farmers could not replant seeds obtained through planting and harvesting seeds patented by Monsanto.

Librarians have already seen some of the impacts of switching from sales to licensing models having rights to digital publications curtailed compared to print editions, including not being allowed to interlibrary loan licensed material. Perhaps the most newsworthy instance was HarperCollins’ plan to require libraries to purchase new copies of ebooks after 26 checkouts, even though ebooks don’t wear out.

So what can we do?

The AALL Copyright Committee monitors issues like these for copyright implications and will alert AALL membership when there are opportunities for action to support the rights of libraries and our patrons. Watch this space, the Washington e-Bulletins, our blog or Twitter for more alerts and news. Congress is becoming active on copyright issues, so the coming years promise to be interesting.

Be informed if faculty or students—or even librarians in other disciplines—ask about the issue. Although James Grimmelman’s Change.org petition to Wolters Kluwer has been closed, there may be other petitions to watch for and sign in the future. Closed or not, the “reasons for signing” left by signers are inspiring reading!

In addition, AALL’s Vendor Liaison Margie Maes and Committee on Relations with Information Vendors are monitoring these issues for trends in the legal information industry and its impact on AALL members.

Read more about the Connected Casebook issue at the Chronicle, EFF, or Scholarly Communications @ Duke.

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