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Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

First sale

The US Supreme Court is going to be discussing the legal doctrine of first sale today, in a case that has something to do with school textbooks but will ultimately have further repercussions. Your right to first sale means that you are allowed to sell on books and DVDs that you bought. However publishers are attempting to license, rather than sell, such materials, and these end user license agreements seek to prevent such selling on.

I find it hard to agree with either side in the debate. On the one hand, if you want to sell on a book that you bought in a book shop, this should not be answered with violence. On the other hand, if you write a book and want to sell it on the condition that the buyer does not then sell it on to someone else, this should not be answered with violence. What if you attempt to make this agreement and the buyer then breaks it? Refuse to deal with that buyer again and tell all your friends. Not practical? Consider alternative business models. The state should neither uphold nor prohibit specific business models, and I suspect it should not be involved in contract enforcement either.

For a publisher there are plenty of non-violent solutions, such as encryption, digital rights management, watermarking, subscription services or being so awesome that everyone wants to throw money at you.

16 comments to First sale

  • To me making conditions that are manifestly unenforceable is just pointless political and philosophical masturbation.

    Students are going to sell their overpriced second hand books and it does not matter what the law has to say on the subject. It. Does. Not. Matter.

    Yes, the libertarian position is if you buy under licence, then you agree to the licence and must dutifully not resell them.

    Meanwhile back in the real world…

  • Mose Jefferson

    If a silly law like this is enacted, it will dry up some of the used textbook supply. Intelligent students who buck the law will then get more dough for their old books, and once again prohibition will reward the lawbreakers with increased profit. Sounds genius.

    Do let me know if this goes through. I have about 200 pounds of old medical texts that might soon be worth something.

  • Rhukatah

    So-called “international editions” labeled “not for sale in the United States” are already widely available from online retailers. They retail at a 30-80% discount relative to editions intended for the domestic market.

    Whatever the court decides will have no effect on those students who can’t or won’t pay full price for textbooks.

  • Alsadius

    Textbook makers already use the dodge of printing a new edition every couple years, with just enough changes that you can’t use an old one to take the class, and then take the old ones out of print so profs can’t guarantee a supply and have to make their students buy new. It seems pretty effective, really.

  • Should you be prevented from reselling something you have been given as a gift? Should you be prevented from giving it to someone else? Customarily, contract law talks about a “consideration” – you may not be bound by the contract unless you have agreed to pay money, or do something in return, so you cannot bind someone to a contract by giving them a gift. Unless we are going to outlaw giving textbooks as gifts, then it seems very difficult to make any such restriction stick. And given that a huge percentage of all the books that are sold are given as gifts, one can’t imagine that the publishing industry would want this. I think one reason we actually have copyright law is precisely because this situation is impossible to enforce using contract law.

    “Don’t attempt to legislate things that are impossible to enforce” seems good advice here, so I think I favour retaining the right of first sale.

  • Sigivald

    TL;DR version: The EFF is either incompetent or lying deliberately. [Neither outcome would surprise me, given their track record on accuracy.]

    That case is not about the first sale doctrine, at least not in a way that could involve weakening it for “your stuff”.

    As usual, the EFF can’t be bothered to report anything accurately*, being more concerned with getting attention and support for EFF than reporting what’s actually happening.

    It’s about the law (see end of post for citation) that prohibits imports without the permission of the trademark/copyright holder (apart from a personal use/private property exception which is also not at issue in the case); the First Sale doctrine is only involved in that the court has to decide which law wins when they’re in conflict.

    For anyone who did not import the thing they’re selling in violation of the statue in question, there can’t be any effect at all on the Doctrine based on the outcome of Kirtsaeng.

    (Per the Court’s docket: How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?)

    * Eff says “Second, if the Supreme Court rules in Wiley’s favor, U.S. copyright holders will likely ensure that as many of their works as possible are manufactured outside the United States, so that they, too, can escape that pesky first sale doctrine.” – which means that whoever wrote that has no idea what they’re talking about; the issue is not “manufactured abroad”, but “imported without permission“.

    If Company A manufactures Article X abroad and imports or authorizes the import it for sale in the US, the question in Kirtsaeng does not apply; the First Sale Doctrine unequivocally applies to the purchaser no matter how the case here is decided, precisely because the importation was completely legal under 602(a)(1), and thus there’s no conflict in the statutes.

  • bradley13

    Exactly right: the state should not be involved at all. If someone breaks a contractual agreement, this is surely a civil matter, not a criminal one.

    If someone violates a contract, and you feel justified, take the person or company to (civil) court. If so many people violate your contracts that you can’t keep up, this is an indication that your contract terms need to be re-thought.

  • Ted

    Students are now getting their textbooks off illegal torrent sites anyway these days

  • I guess this a last-ditch effort on the part of publishers before textbooks go digital and become passed from Kindle to iPad to Kindle willy-nilly.

  • Dave Walker

    “For a publisher there are plenty of non-violent solutions, such as encryption, digital rights management, watermarking, subscription services or being so awesome that everyone wants to throw money at you.”

    Of these, only the last one is something that can’t be readily circumvented by a would-be illegitimate user, who knows a legitimate user :-).

    It takes maintenance, though.

  • Julie near Chicago


    “TL;DR version”–translation please?

    From the Wikipedia article on the EFF:

    “Barlow … [and Mitch Kapor] … agreed that there was a need to defend civil liberties on the internet. … [T]he pair contacted New York lawyers Rabinowitz, Boudin, Standard, Krinsky and Lieberman about defending several computer hackers….”

    I don’t like this start to things (although, note, this would have been clear back in 1990). Victor Rabinowitz was a former president of the Communist-backed National Lawyers Guild and a former member of CPUSA; Leonard Boudin continued his family’s tradition of leftism/Marxism, if not outright Communism.

    For more on Rabinowitz (in particular) and the National Lawyers Guild, see


    I’m only half-awake, and being even less coherent than usual. This association just raises a red-flag warning for me, that’s all. And this is not a court of law….

    By the way–in case anybody’s wondering, I certainly agree that even Communists (and even Mohammedans!) are legally entitled to defense if accused of crimes, and that our entire system would be a mockery if they were denied said defense.

    I also think that any attorney who takes on the defense of such people is a lowlife scumbag, unless he is (1) convinced that the accused is indeed innocent of the particular crime in question, or (2) acting as a Public Defender assigned to the defense by the Court (or whomever makes such assignments).

  • Bruce

    I think the problem is that we conflate a government granted limited-term monopoly, copyright, with property. Eliminate the monopoly and the problem resolves itself.

    Or, if we are going to permit the monopoly, it should be of short duration and not prevent further resale of goods incorporating copyrighted work. The justification given for the monopoly is to encourage creative endeavor, not to substantially hinder downstream commerce.

  • Dyspeptic Curmudgeon

    Sigivald: Wiley would *like* this to be about s602, but the Judges kept hoofing the question back to section 106 (and 109 which is first-sale). The question resolves to parsing “lawfully made under this title”. There is a subsidiary question involving ‘consent’ hiding in s109.
    Wiley copyrighted the text and had it printed. I haven’t seen any mention of it, but there is a fair chance that Wiley’s publication by printing, in Thailand was not separately copyrighted as a distinct item, but sheltered under Berne Convention extension of the US copyright. Even if separately copyrighted, there is no doubt that the books were “lawfully made” at the time of printing.
    Wiley wants ‘under this title’ to mean that the US copyright owner must do it directly. But of course, not that the US copyright owner’s consent to the lawful doing, OUTSIDE the US, is a lawful making. This is the Achilles heel of Wiley’s argument, as the same owner’s consent is involved.

    Wiley wants to sell under its copyright, but use that same copyright to restrict further sale. This is using copyright not to protect the right of publication, but to institute a commercial monopoly. This is the same sort of competition breaking use of IP that we saw in Omega v Costco.
    The dissenting 4 in Omega saw that problem. But for Kagan having to recuse herself, it may well have been 5:4 against Omega’s position. (I base that on the reported excerpts of questions by Kagan at the hearing: she did not want to hear about s602. She wanted to understand Wiley’s position on s106 and 109. Of course, that may be a complete misread. Judges play devil’s advocate all the time.)

    I have my fingers (metaphorically) crossed.

  • Rich Rostrom

    bradley13: Exactly right: the state should not be involved at all. If someone breaks a contractual agreement, this is surely a civil matter, not a criminal one.

    If someone violates a contract, and you feel justified, take the person or company to (civil) court.

    Civil courts are just as much an arm of the state as criminal courts, and civil court judgements are enforced by the coercive power of the state.

    For example, if I file a suit for eviction against Smith in Housing Court, that’s a civil action in a civil court. If I win, and Smith refuses to vacate the premises, I can have sheriff’s deputies forcibly remove him. (In fact I am required to have it done by state agents rather than by private operatives.)

    Enforcement of contract is a necessary power of the state. Without it, commerce beyond simple barter and trade is impossible.

    And it is therefore necessary for the state to lay down definite rules about what contractual provisions are enforceable.

  • Laird

    “Enforcement of contract is a necessary power of the state. Without it, commerce beyond simple barter and trade is impossible.”

    That’s a common perception, but I’m not convinced that it’s accurate. It’s certainly true that in modern society we have delegated most contract enforcement to the state, but that wasn’t always the case (long-distance trade existed and flourished long before the existence of modern nation-states and their judicial systems), and in some respects we are now moving away from that model (mediation and arbitration provisions, “private courts”, etc., are becoming more common as people’s frustrations with the quality and pace of government courts grows). So I challenge you to provide some proof of that assertion.

  • Paul Marks

    Canon Law (and it was not just used for the Church) and Law Merchant (private law) existed when “states” were just hairy Warlords.

    By the way Canon Law (and Law Merchant) deals with limited liability and corporations – you know the things the “libertarian” left tell you that “the state” invented.