Bad Scholarship Alert: Book Resale Embargoes

Today’s spectacularly bad idea is to bar selling used books for a period after a book’s publication:

This Note argues that the deleterious effect of online used book sales immediately following a book’s launch justifies expanding copyright holder control of secondhand sales. Copyright law currently provides minimal protection, but for a long time. This Note proposes that stronger protection should be granted to books when it matters most – during the first six weeks to six months after publication – so that copyright holders can get the reward they deserve from new book sales. . . . Next, it will evaluate potential solutions and ultimately argue that copyright holders should be able to prevent or control the resale of a used book within a limited time after its publication, thus ensuring that authors receive their deserved monetary reward. Further, it will argue that this could be accomplished either by increasing the copyright monopoly (via an exception to the first-sale doctrine), by creating an equitable servitude in a book or by allowing for a misappropriation-type remedy.

Sharon Billington, Relief from Online Used Book Sales During New Book Launches, 29 Colum. J.L. & Arts 497, 497-98 (2006).

The article does not use the words “library,” “review,” “reviewer,” “critic,” “criticism,” “ship,” “shipping,” “borrow,” or “lend.” It uses “share” but only in the sense that a copyright holder “shares” the work with the public. “Give” shows up once in a footnote, but otherwise appears only in the context of rights we could “give” to copyright holders. The article also does not use “ship” or “shipping.” Neither does it discuss “fair use.” There is no mention of “ebooks,” however punctuated or capitalized. “Business model?” Nope.

These are not small concerns. There are critically important issues here. Resale allows potential critics to obtain a book against the wishes of the copyright holder. Shipping costs prevent the Internet from being a truly frictionless medium. The publishing industry has been debating the potential shift to electronic distribution for years. Many authors have noneconomic motivations for publishing. Not all publishing models depend on sales of copies to recoup the first-copy cost. Individuals’ rights of alienation over their possessions are strong and intrusion on them raises substantial information cost issues. Libraries depend on first sale, as do book exchanges and everyday loans and gifts of books among friends.

Proposals such as these are not simply academic exercises in legal writing and research. They are dangerous suggestions that woud significantly curtail traditional individual intellectual and cultural freedoms. Those who propose and publish such suggestions have a responsibility to consider the consequences of their proposals and the objections to them. Sharon Billington and the Columbia Journal of Law and the Arts have failed in their duties to the public.