First Sale Doctrine

Reposted from the AALL Washington Blawg:

Guest Post: Standing up for the First Sale Doctrine

By Meg Kribble, chair, AALL Copyright Committee

Last week saw great outcry over Wolters Kluwer Aspen Law’s new Connected Casebook program. Under the proposed program, new casebooks would come with access to Aspen’s Casebook Connect digital platform including promised post-term access to the ebook edition with note taking tools and other digital bells and whistles. The catch? Students would be required to return the print books to Aspen at the end of the term, even highlighted and marked up. The tradition of selling the book to another student to recoup some of the expense would not be allowed.

Although Wolters Kluwer has backtracked and says they will continue to offer a traditional print book that students may retain or dispose of how they wish, the Connected Casebook is still an option for students and remains problematic for many reasons, perhaps most of all because of its encroachment on the first sale doctrine.

As many of you know, the first sale doctrine—allowing purchasers of legal copyrighted works to re-sell, lend, rent, or give them away—has been an important part of U.S. copyright law since the Supreme Court recognized it in Bobbs-Merrill v. Straus. The Copyright Act of 1976 codified it as 17 U.S. Code § 109. It was re-affirmed by the court as recently as 2012 in Kirtsaeng v. Wiley, applying the doctrine to works lawfully made overseas. The first sale doctrine is an essential protection of libraries’ right to lend our materials.

Wolters Kluwer Connected Casebook is troubling because it involves an attempt to shift print copies of books from a traditional sale to a license agreement. Some have suggested the proposal was a purposeful experiment to see if consumers would accept it—or as the Electronic Frontier Foundation posits, “a cynical plot to destroy the secondhand market for books.” Duke’s Scholarly Communications Officer Kevin Smith compares the plan to Ford including a provision in its sales contracts to prevent resale of its cars. Joe Patrice at Above the Law observes that Wolters Kluwer’s actions should have been foreseeable in light of Bowman v. Monsanto, the case in which the Supreme Court held that farmers could not replant seeds obtained through planting and harvesting seeds patented by Monsanto.

Librarians have already seen some of the impacts of switching from sales to licensing models having rights to digital publications curtailed compared to print editions, including not being allowed to interlibrary loan licensed material. Perhaps the most newsworthy instance was HarperCollins’ plan to require libraries to purchase new copies of ebooks after 26 checkouts, even though ebooks don’t wear out.

So what can we do?

The AALL Copyright Committee monitors issues like these for copyright implications and will alert AALL membership when there are opportunities for action to support the rights of libraries and our patrons. Watch this space, the Washington e-Bulletins, our blog or Twitter for more alerts and news. Congress is becoming active on copyright issues, so the coming years promise to be interesting.

Be informed if faculty or students—or even librarians in other disciplines—ask about the issue. Although James Grimmelman’s Change.org petition to Wolters Kluwer has been closed, there may be other petitions to watch for and sign in the future. Closed or not, the “reasons for signing” left by signers are inspiring reading!

In addition, AALL’s Vendor Liaison Margie Maes and Committee on Relations with Information Vendors are monitoring these issues for trends in the legal information industry and its impact on AALL members.

Read more about the Connected Casebook issue at the Chronicle, EFF, or Scholarly Communications @ Duke.

CRIV Advocacy Request Update – Lexis shipping and handling costs

CRIV received a request from an academic law librarian regarding Lexis shipping and handling costs. Lexis responded to this request and has followed up with additional information.

The following information is from Cindy Spohr at Lexis:

LexisNexis currently charges Shipping & Handling based on the cost of the product shipped. We do offer several choices for users who do not wish to pay for S&H, including eBooks and the Digital Library.
In addition, we are exploring new shipping options for our customers; we will be announcing these programs to the market in the 2nd quarter.

Thanks to Lexis for following up with additional information about shipping and handling charges.

 

Cynthia Myers, CRIV Chair

 

 

Lexis Advance adds Law360 materials

In the latest update to Lexis Advance, law school subscribers now have access to Law 360 materials. Law 360 is a tool that provides “breaking news” in over 30 practice areas, including corporate, tax, government contracts and securities law. According to Lexis, over 150 articles per day are released. The Lexis website provides instructions for setting up Law 360 alerts using your Lexis Advance account.

 

 

Request for Assistance – Lexis Nexis shipping and handling costs

CRIV received a request from a librarian asking how Lexis Nexis calculated its shipping and handling costs for print materials. CRIV would like to thank Cindy Spohr for addressing this issue and her response is below. Due to the response, CRIV is following back up on the issue to see if a more concrete explanation is available.

Several years ago, LexisNexis relied on US Media Mail to deliver books. As you know, this was more cost efficient for customers, however, it also caused many customer questions and complaints due to lack of tracking capabilities. As a result, we switched to UPS as a primary delivery vehicle. Our customers have been much happier with this solution and spend less time tracking lost or delayed packages. While we have considered offering media mail again (like other publishers do offer), we decided against it due to the negative customer experience.  Over the last three years, our S&H rate increases have been in line with UPS rate increases. 

We now offer several choices for users who do not wish to pay the S&H, including eBooks and the LexisNexis® Digital Library.  In addition, we are exploring new shipping options for our customers and will be announcing these programs to the market in the 2nd quarter.

If you need CRIV’s assistance, please email Cynthia Myers at cmyersj@gmu.edu.

Cynthia Myers, CRIV Chair

CRIV Request for Assistance – Titles transitioning from Thomson Reuters to West Academic

CRIV received a request for assistance from an academic law librarian regarding titles transitioning from Thomson Reuters to West Academic due to the sale of its Law School Publishing business. CRIV contacted Lori Hedstrom, National Manager, Library Relations and below is her response:

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 As you are aware, in early 2013 Thomson Reuters sold its Law School Publishing (LSP) business to Eureka Growth Capital. The new business is named West Academic.

 The divestiture included the West Academic Publishing, Foundation Press and Gilbert’s imprints. Products created for the law school market such as the American Casebook Series, the University Casebook Series, Hornbooks, Nutshells, Black Law Outlines and Gilbert’s were included in the sale. Black’s Law Dictionary, a reference product and a starting point for legal research, remains with Thomson Reuters. A complete list of divested West Academic titles can be found at http://legalsolutions.thomsonreuters.com/WAP.

 During the transition, we have worked closely with West Academic to provide information to customers regarding their individual accounts. Any new orders placed through Thomson Reuters for West Academic titles prior to Dec. 31, 2013 have been or will be fulfilled by Thomson Reuters. Orders placed on or after Jan. 1, 2014 have been or will be fulfilled by West Academic.

 We have spoken with Chris Parton, president and CEO of West Academic, and as the product owner, West Academic can answer the specific questions about their products, structure of accounts and any discontinuation of products. For questions related to West Academic, customers may contact their representative at (800) 782-1272 or inquiries@westacademic.com. For questions related to Thomson Reuters, customers may call us at 1-800-328-4880.

 Thomson Reuters’ relationships with law schools, faculty and law students remain critically important, and we will continue to offer WestlawNext to law schools for staff and student use. Please let me know if you have any further questions that I may be able to answer.

If you have a similar issue or any issue CRIV can assist with, please use our Request for Assistance form available at http://aallnet.org/main-menu/Advocacy/vendorrelations/request-assistance.html.

Cynthia Myers, CRIV Chair