April 18, 2018

Law Profs Revolt after Aspen Casebook Tries to Get Around First Sale Doctrine

Aspen CasebookOn May 5, a number of law professors around the country received an email from publisher Wolters Kluwer regarding the 11 books in the Aspen Casebook series they assign to their students. The email informed the educators that the casebook, which combines lessons about the legal system with documents from cases in which those principles were applied or set, would now be sold as a physical copy bundled with an ebook edition. There was just one catch: once the course was over, students would be required to ship their physical copies back to the publisher, rather than hanging onto them for reference or reselling them on the used book market.

The policy didn’t sit well with many of the professors who use the Aspen Casebook in their courses. The idea violates the first sale doctrine, long applied to books and other physical media, which prohibits publishers or other rights holders from placing restrictions on the transfer of legally obtained, copyrighted objects after those works have been sold to a consumer. If a consumer has purchased a copy of a work, they are free to resell it as they wish. While a debate continues to rage about whether first sale does, should, or could apply to digital works, which are usually licensed rather than sold, the Supreme Court upheld its application to print textbooks as recently as last year.

Josh Blackman, an assistant professor at the South Texas College of Law in Houston who wrote about the situation on his blog, said the new policy seemed closer to the Amazon and Apple model of licensing content for use by consumers, rather than actually selling it to them outright. “Journal publishers are trying to find ways to make more profit,” Blackman told LJ. “And one of the ways they can do it is by transitioning from people owning books to people licensing books.”

The shift in policy, which Blackman said took him and other professors completely by surprise, resulted in a backlash against the publisher, with hundreds of professors and students signing on to a petition begun by University of Maryland law professor James Grimmelmann. (Grimmelmann may be best known to readers as a commentator on the Authors Guild’s long running court cases against Google Books and the HathiTrust.)

Within days, Wolters Kluwer had reversed course—to a degree. Rather than offering only the bundled book and ebook, the company will offer students the option to buy the bundle, in which case they’ll still be required to return the printed edition, while retaining access to their digital version in perpetuity. The students will also be offered the option to buy just the print version of the casebooks, which they can keep or resell as they please, but a digital copy won’t be included.

In a statement on the Aspen Law website, Wolters Kluwer vice president and general manager for legal education Vikram Savkar said, “While we are very excited about the Connected Casebook program, and believe that this option provides greater value for students, the choice of which option to purchase remains entirely with each student.”

While it’s not a perfect solution, Blackman said that the choice is an important one. Which choice is a good idea for students, he told LJ, will depend on the student, as well as on the cost attached to the different options. Wolters Kluwer representatives failed to respond to requests for comment.

Grimmelmann, who still has his physical casebooks from his law school days, told LJ ,. “Their new policy is not a complete answer to the problem of rising casebook costs,” he said. “But it’s absolutely the right thing on the particular issue that sparked this protest.”

He also pointed out that casebooks, which are largely made up of extant records from court proceedings, require less author input than other traditional textbooks, meaning that keeping them affordable for students could allow for different strategies. He has authored a DRM free casebook, offered as a PDF under a pay-what-you-can model, and pointed to projects like the Harvard-based H2O model, which takes an open source approach to crafting course readings and was launched with casebooks as its ‘beta’ example, as other potential long-term fixes.

While casebooks may be an odd duck, though, he said the lesson from recent kerfuffle is one that all textbook publishers should pay attention to, telling LJ that “the general point that first sale is not to be taken away is a particularly relevant one.”

Blackman was less sure that this flare up would convince publishers to abandon the attempt to shift physical textbooks to a licensing model entirely, but also said that it will at least make publishers more transparent about their policies and offer educators more time to prepare for changes in policy. “It will make publishers leery about trying something like this without consulting professors first,” he said.

Such a shift would likely make libraries even less likely or able to collect textbooks for student use. Since libraries rely on the first sale doctrine for their right to lend books, as well as to deaccession their weeded copies to raise funds, they are some of its staunchest defenders.

Ian Chant About Ian Chant

Ian Chant is a former editor at LJ and a freelance journalist whose work has appeared in Scientific American and Popular Mechanics and on NPR.

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  1. Tony Greiner says:

    This is good news. Now can ALA take on film-makers who require the purchase of public performance rights, or who ‘license’ their DVDs to higher-education at rates higher than the general public?

  2. knownever says:

    Kaplan and other test prep companies make similar restrictions (banning their resale) on the study materials provided during their courses. For example, the multi-volume workbooks for preparatory classes for the LSAT and other exams.