Superrights for textbooks?

This past week there have been a lot of angry blog posts about the new “Connected Casebook” plan from Aspen Publishers (Wolters Kluwer Legal Education) that would attempt to deprive students of their rights under the First Sale doctrine in U.S. law to resell the books that they buy.  Aspen publishes case books — the textbooks made up largely of court decisions that are fundamental to the teaching in U.S. law schools.  With this new program they are “offering” students allegedly perpetual access to an online version of the book with digital tools, but attempting to require that the print version of the book be returned after the class is over, even if it is marked up and annotated.  The idea, of course, is to undercut the secondary market for print textbooks so that each student will have to pay $200+ for a new book package.

Many folks have already critically examined the plan, so I will just offer some links to those earlier posts — from law professors Josh Blackman and James Grimmelmann, from the Electronic Freedom Foundation and from the Washington Post.  It is worth noting that Professor Grimmelmann began a petition that includes a pledge from law professors not to assign Aspen casebooks.

Since these blog posts were posted, Wolters Kluwer has responded with a letter in which they clarify their intentions, stating that the Connected Casebook program will be an option for students, but that they will still be able to elect to buy a traditional print textbook in which they will have the right of first sale, meaning that they can resell the book once the class is over.

In spite of this plethora of words about the issue, I have several comments I want to make.

First, just a reminder that these attempts to undermine the right of first sale are an effort from publishers to gain a sort of “super” property right.  No other property owner expects to be able to sell their product and still be able to prevent the purchaser from making a resale.  To see the absurdity of this, imagine if Ford tried to shut down the market for used cars by including such a restriction in a purchase contract; it would be a quick way to go out of business.  If Aspen really cannot survive in a market where resale is an option — this has been the case in the U.S. for its entire history, as well as in the rest of the world for a long time — it is probably time for them to shut off the lights and go home.

At least I suppose we should be grateful that Aspen says this will be only an option, not the sole way in which textbooks can be obtained.  They are saying that the digital bells and whistles that they will offer with the Connected Casebook program are carrots intended to lure students into surrendering their first sale rights, not sticks that will coerce them.  In that light, it is interesting to consider if it will work.  Studies suggest that the included digital links and things associated with many textbooks do not get used very much.  I wonder if the price will be the same for the traditional textbook, with a resale option included, and the “Connected” casebook, which has outlining tools and allegedly lifetime access to the digital edition, but requires the renunciation of first sale rights?  As Professor Grimmelmann points out, “we know from sad experience that gerbils have better life expectancy than DRM platforms,” so lifetime access is really not very likely.  In any case, case books become outdated really quickly, and the large secondary market (that Aspen wants to curtail) indicates that students are not very interested in lifetime access.

Perhaps this new program should be a teaching moment for law professors.  Licensing and contract law are relevant to nearly every legal subject, after all, so any class in which an Aspen Casebook is assigned might begin with an opportunity for students to reflect on the decision they are asked to make and to explain their ultimate choice.  The interplay of price, features, expectations and rights would make for interesting reflections, and students could begin to try to decide if the restriction requiring return of the book is actually enforceable.

Enforceability does seem like a issue here.  The basic idea is to have students buy a package — print book and digital access — then use the license for the latter to curtail rights in the former.  But our courts have looked very unfavorably on licenses that attempt to curtail first sale, in cases as old as Bobbs-Merril v. Straus (1908) and as recent as Kirtsaeng v. Wiley (2012).  It is true that the Ninth Circuit recently did enforce a license restriction on first sale imposed on software CD-ROMs, but in that case (which seems dubious given the two Supreme Court precedents mentioned above) at least the license was for the same, singular product.  I am pretty confident that courts would be more skeptical of the Aspen license, which attempts to negate a long standing public right in a format that is not traditionally governed by licensing terms at all through the licensing of a different format.  A court challenge to this would be very interesting and would raise the issue, as the EFF notes, of what the boundaries of a sale really are.  Certainly if the scheme were ever imposed as the only option for obtaining these textbooks, it would cry out for an action on the part of law students seeking declaratory judgment on the issue of enforceability.

The biggest takeaway from this controversy should be a reminder of the opportunity to create open educational resources that can avoid all of these silly and desperate efforts from publishers to maintain control even after the sale of a book.  No field is more amenable to open textbooks than law, after all, where the large majority of the content, the cases themselves, are in the public domain.  The licensing problems for online casebooks are greatly reduced, and there are consequently already some excellent examples of open online law texts, including Grimmelmann on Internet law and Herbert Hovenkamp (himself the author of an Aspen casebook) on Innovation and Competition Policy.  I would love to see many of the over 300 law professors who have signed Grimmelmann’s petition commit to creating open online case books in their own fields of expertise.  If that happened, the problem would go away very quickly, and the cost of a legal education would be significantly reduced.

We need to remember that this model for textbook “sales” is likely to spread.  The various strategies that publishers have used to try to undermine the secondary market for textbooks are various and ongoing, as the recent Kirtsaeng v. Wiley case illustrates.  Although it is never put this way, this is part of an overall sense from academic publishers that they are entitled to a larger share of the money that students spend on education.  These strategies would always have the effect of making education more expensive, so we need to remain vigilant for the next such effort and resist it on behalf of the students we serve.