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.