DISQUS

RSG · 1 year ago

Discuss? Um, yeah it can.

Plaid Rabbit · 1 year ago

Good luck enforcing that - first sale doctrine under Copyright would cover that, correct? I mean, if the RIAA is having trouble enforcing "no sales allowed" notices on promotional CDs, this probably isn't going to stand up real well either.

ohwilleke · 1 year ago

If it was never sold in the first place, does the first sale doctrine apply?

Allowing potential publishers to review a manuscript, for example, does not allow them to resell even their copy, under the first sale doctrine, even if there is no demand that the copy be returned.

esqmarty · 1 year ago

I appreciate the point that an entity could distribute a copyrighted work in
a non-sale contest and impose various conditions. In the WSJ article it
indicates that the students are buying the book.

Holfax · 1 year ago

I believe transfer of title constitutes a "first sale" even if no money changes hands.

joegratz · 1 year ago

Correct -- that's pretty well-established, via the Basmajian case in SDNY and the UMG v. Augusto decision we just got in CDCal about promo CDs.

I see no reason why it would be copyright infringement for a potential publisher reviewing a manuscript to sell the particular copy they were given. It's a copy owned by the recipient (absent some contract or other promise saying otherwise), and is freely alienable. As we saw in the UMG v. Augusto case, just asserting that industry practice requires the recipient to act in a certain way doesn't affect the first sale analysis.

As for the original question regarding A Writer's Reference, I think it presents an even easier case than Augusto. The student owns the book, and can sell it; the label notice does not affect who has title to the physical object, and thus doesn't affect first sale.

If the book was sold underneath a shrinkwrap license containing a term prohibiting resale, the story would be only a little different. In that case, if a student resold the book, I think the publisher would have a non-frivolous breach of contract claim against the student (though I think such a contract term should probably be voided on public policy grounds). But they would not, in my view, have a copyright claim against the student, since the sale would be shielded by the first sale doctrine.

Joe Gratz
(counsel for Augusto, but speaking only for himself)

T. D. Ruth · 1 year ago

Hogwash. First sale doctrine applies and I would be tickled to represent the student who gets sued for selling the book used. This is even more outrageous than UMG arguing against the resale of promo CDs.

Michael · 1 year ago

Setting aside the interesting thoughts on enforceability from a preemption perspective (i.e., first sale), I sincerely doubt there's a contract formed here just by virtue of printing such a claim on the back of the book. So, we'd probably never get to the more interesting question of first sale doctrine.

Michael · 1 year ago

By the way, the interesting question isn't whether first sale applies in the absence of a contract, it's whether it's a right that's waivable by contract. One could argue there's nothing in the statute to prevent it from being a waivable right, but on the other hand if it were that easy to waive it seems to make it an illusory right and to undermine the reason for it being there. Which, of course, goes right to the heart of the argument for those who are offended at licensing practices in software -- Why even have a copyright law if contract can totally abrogate it in an instant?

Al Labama · 1 year ago

Maybe the university is merely trying to bully students and local bookstores, to deter them from selling used copies. The students might be cowed by the threat of expulsion, or some such penalty, and local bookstores would probably not want to defy the university. The statement on the book gives the University a pretense for complaining about re-sales.

What if the University wrapped the book in plastic, and used a wrap-license that prohitibed re-sale? I.e., the "buyer" was only buying a license, not a copy?

Michael · 1 year ago

Re: the comment on use of the clause for 'bullying' purposes: In terrorem clauses have a long history. There's a serious ethical question though of their use when one essentially knows for certain that the clause is not enforceable and is used purely for fear purposes (particularly when it's a card played by a player in a position to ruin the lives of the ones being scared). As my grandmother might say, that's called 'lying.'

But, they are generally accepted as ethical if the underlying clause is more or less enforceable even if the drafter actually doesn't really think he or she would ever want to go to the trouble of enforcing it.

Gordon Firemark · 1 year ago

Sounds like the University is trying to treat this like a "click wrap" or "Shirnk wrap" license, as with software. Would the analysis be any different if the material was provided through a pass-word protected online database? e-book? email newsletter? on CD-Rom.

Does the first-sale doctrine only apply to hardcopies of copyright protected works?

I personally abhor the notion of "licensing" something which is inherently a "sale".

Interestingly, a very similar issue has recently arisen in my own practice... where a producer (of a play), wants to provide the actors copies of their performances on DVD, but wants to prohibit them from selling or giving the DVD to others. I've concluded that once a copy leaves the copyright holder's control, it can be sold, transferred, etc., but not copied, displayed, performed, or used as source for a derivative work.

joegratz · 1 year ago

Interesting issue! What's really fun there is that the actor has a decent claim to be a co-author of the DVD, and thus might be privileged to make and sell all the copies she wants (subject to an accounting to the other co-authors).

Consider contract rather than copyright as the means of enforcing the theater company's norms.

(And consider whether the theater company's license to produce the play permits videotaping and distribution of copies to actors at all. Many such licenses don't.)