Monday, March 06, 2006

eBay and First Sale of Educational Books

Law students are aware that some of the casebooks they so carefully study come in a "Teacher's Edition." That edition is not for sale to students. The teacher's editions of casebooks run the gamut from perfunctory to works of art. The Holy Grail of Teacher's editions is the one for the Dukeminier & Krier property casebook; it is a book of its own: not only does it have the answers to all of the questions posed, it has explanations of them, as well as historical material, everything a neophyte professor needs to come across as an expert, and everything a student would need to ace the course.

Many other fields of education have teacher's editions too, and the same inhibitions on them falling into students' hands apply. That's where eBay comes into play. Just as book reviewers have historically sold to second hand bookstores copies sent by publishers, and disk jockeys the albums they are given, some professors have taken to selling the teacher's editions they receive. eBay now provides a vast market of eager students and perhaps others. Educational publishers don't like such sales, and are reported to be trying to prevent sales on eBay of them.

There are no special rules for the sale of teacher's editions. To begin with, the first sale doctrine doesn't require a sale; other countries more accurately describe it as the "exhaustion" doctrine: once the copyright owner has parted with title to the physical object, the copyright owner's rights over that copy are "exhausted" and anyone who lawfully possesses that object can do what they want with it in terms of distribution and display. So, if an educational publisher gives a teacher a teacher's edition rather than selling it, that fact doesn't matter. The teacher can sell it on eBay or wherever.

But what if the copy says, "Not for sale"? Many copies sent to book reviewers and to disk jockeys contain similar legends and can be found in second hand stores; I own a few myself that I have purchased. One would have to ask whether there is a contract under such circumstances to determine whether there is a breach of it, since the first sale doctrine does not apply to licensed only uses. There are reasons to be skeptical there is a license only in such a situation (it is, for example, highly unlikely the publisher has an expectation of getting the copy back in the event of a breach), but if there is a contract, it is only between the book publisher and the original teacher, not a reseller.


Michael Eisenberg said...

In light of your comment that:

..since the first sale doctrine does not apply to licensed only uses..

I'm not sure I completely agree. 109(a) says that any copy lawfully made under 17 USC may be disposed of in spite of the copyright holder's lack of permission.

So if the copy was made lawfully, ie with the copyright holder's permission, that copy maybe disposed of without any violation of 17 USC.

On whether the "Not for sale" would afford the owners any protection under 17 USC, I would look to the shrinkwrap cases. Although I think some have gone contrary (I can't think of any off hand), many hold as follows:

Novell, Inc. v. Network Trade Ctr., Inc., 25 F. Supp. 2d 1218 (D. Utah 1997). where the court stated:

This Court holds that transactions making up the distribution chain from Novell through NTC to the end-user are ''sales'' governed by the U.C.C. Therefore, the first sale doctrine applies. It follows that the purchaser is an ''owner'' by way of sale and is entitled to the use and enjoyment of the software with the same rights as exist in the purchase of any other good. Said software transactions do not merely constitute the sale of a license to use the software. The shrinkwrap license included with the software is therefore invalid as against such a purchaser insofar as it purports to maintain title to the software in the copyright owner.

William Patry said...


Good clarification, I was only speaking to the publishers'potential argument that it was a license. Clearly there would be no fair use under those circumstances.

HowGreatADebtor said...

This issue has surfaced in the home education community, as many of us parents purchase (and sell) secondhand texts and teacher's editions through online auctions, message boards, bookstores, etc. Of course, we aren't talking about the Dukeminier & Krier property casebook here, but elementary and high school teacher's editions. It's hard to see how reselling those books would jeopardize anyone/anything--except the publishers' profits.

Colleen M.

Corinne said...

Amen to that Howgreatadebtor! This entire situation has made it next to impossible to buy affordable books to teach my children with. The publishers are trying to force those that choose to home school their children, to purchase directly from them, and eBay is aiding them in this endeavor with their rediculous policy they have enacted. We are talking about elementary text books here, not college level. Children under eighteen cannot buy on eBay. The whole situation saddens me greatly.