In case you thought casebook publishers held students in anything but rank contempt, this will relieve your doubts. A major publisher has decided to alter its business model to exact more misery from students already paying thousands of dollars on textbooks that they will never again crack open after the semester. Because the only way to save money in the book game for law students is to (a) buy used books; (b) sell back your books; or (c) all of the above.
Aspen Publishers wants to rip those options away from students. Starting with their next editions, Aspen is banning resale of their books and trying to enforce the ban by making students return the books at the end of class.
Check out the full policy and what you can do to fight it….
UPDATE (12:10 p.m.): That was fast! Aspen has changed its policy. Full details below.
Thank you for adopting Dukeminier/Krier/Alexander/Schill/Strahilevitz, Property text. We are pleased to announce that this title will be part of our new Connected Casebook program. The Connected Casebook program is intended to provide students access to a greater wealth of learning tools than offered previously, with no change in price. Under the Connected casebook program, your students will receive:
• A new, bound version of the casebook, which can be marked-up, highlighted, and kept through the length of the course, but which must be returned to us at the conclusion of the class.
• Lifetime access to CasebookConnect, a rich digital companion to the casebook, containing a full digital version of the casebook as well as selected proven learning accelerators, such as examples, explanations, and a collection of issue-spotting and hypothetical exercises.
As Blackman notes, the fact that this is happening over a Property text is too rich. Personally, I’d be fine with an ebook — I hated lugging those casebooks around — but if I’m paying top dollar for a casebook, it should be my casebook to do with as I please. Professor James Grimmelmann points out what will inevitably happen when students fail to return the 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.
Professor Grimmelmann also points out the obvious — if the goal is to eliminate a resale market, every one of these books will get pulped at the end of the semester. A tremendous waste that he characterizes as the literal “destruction of knowledge.”
We should have seen Aspen’s assault on the first sale doctrine coming. In Bowman v. Monsanto, a unanimous Supreme Court held that farmers who buy seeds from Monsanto can’t plant the next generation of seeds because the seeds are Monsanto’s intellectual property and replanting the crop amounts to copying the original invention. Now the case for exhaustion is a lot easier with a physical textbook than bio-engineered seeds, but if you read the Monsanto decision cynically — which you should — it wasn’t about the vagaries of a self-replicating invention as much as it was about letting an industry giant maximize its control of intellectual property long after the first sale. At least for most of the justices.
If you want to stand up to Aspen’s policy — and you’re a professor — sign this petition. If you’re a student and want to take action, consider starting a petition of your own. Email us at firstname.lastname@example.org and we’ll update this story with a link to spread the word.
UPDATE (12:10 p.m.): Aspen has changed its policy, as noted by Josh Blackman: “In short, students can choose to buy the textbook the old-fashioned way, and keep it. Or they can choose to buy the digital version and the paper version, and send the book back. I think this latter option is unwise, and should be abandoned altogether, but I appreciate that Aspen has changed their policy. I will declare a partial victory, and withdraw my petition.”
Aspen Casebook Connect Textbooks Must Be Returned At End Of Class, Cannot Be Resold [Josh Blackman's Blog]
Aspen Doesn’t Want You to Own Your Own Casebooks [The Laboratorium]