An email was making the rounds last week from Aspen publishers, a Wolters Kluwer Law imprint.
This publisher sent the email to law professors to tell them about changes that were coming with the new edition of certain casebooks, including both a new website and the requirement that students return the casebook at the end of the semester (a violation of the First Sale Doctrine).
Naturally this caused a ruckus on this blog as well as among the law professors who received the email,and a couple days later Aspen responded to the protests with a clarification. They insist that their attempt to take rights away from students was merely one of the options a student will have for buying the next edition:
Students will have a choice as to which of these two options to purchase.
1) Through the traditional option, students can purchase any of the 11 titles as individual print casebooks, as they have in the past.
2) Through the Connected Casebook option, instead of purchasing only a print casebook, students can now receive:
- A print casebook for the duration of the class term (to be returned by students at the conclusion of the term), and
- Access to our new CasebookConnect digital platform. Through this platform students will have:
- A fully functional ebook version of the casebook, with note taking and highlighting capabilities, to which students will retain access after the class term has concluded
- A digital study companion to the casebook, giving students opportunities to better understand difficult concepts and conduct self-assessments
- An outlining tool that allows students to efficiently develop outlines based on their reading of the casebook
That’s all well and good, but it doesn’t change the fact that Wolters Kluwer is trying to cut into the resale market and deprive students of the rights they have over their property.
I have to agree with Kevin Smith when he criticized Wolters Kluwer:
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.
You can find other examples of publishers trying to gain a “super property right” without having to look beyond digital content, but one particularly egregious example was Kirtsaeng v. Wiley. This case, which was decided by the Supreme Court in March 2013, began when the technical publisher John Wiley sued a student for copyright infringement over Wiley textbooks which had been legally purchased and imported.
Wiley lost that case, but the important point here is that Wiley initially sued for the same reason that Wolters Kluwer is launching the Connected Casebook service. Both publishers want to try to control a textbook after it no longer belongs to them.
The publishers are concerned about having to compete with cheaper copies of their own work, and they’re not the only ones. You need look no further than minimally revised but frequently updated textbooks to see that many textbook publishers are doing their best to limit students’ resale options.
Luckily for us both Kirtsaeng v. Wiley and the older Bobbs-Merril v. Straus were decided in favor of the consumer and not the publisher, otherwise most textbook publishers would be following in Wiley’s and Wolters Kluwer’s footsteps.
image by velkr0