Is it illegal to resell consumable books? How the ‘First Sale Doctrine’ affects copyright law and resale

Is it illegal to resell consumable books? How the 'First Sale Doctrine' affects copyright law and resale // A detailed conclusion by Oaxcacaborn.com

[Q] Does it violate copyright law to resell consumable workbooks? 

[A] Since the First Sale Doctrine was handed down by the Supreme Court (1908) in Bobbs-Merrill Co. v. Straus [1], it‘s been perfectly legal to dispose of a book in any way you see fit, including via resale.

I see the following scenario on used book forums (and Facebook Buy/Sell/Trade groups) all the time: a well-meaning person lists the volumes he or she is offering for sale, and a commenter immediately pops up to let the original poster know it is illegal to resell books which have consumable portions. However, absent a one-time user license (this is key!), and despite what publishers sometimes print on the opening page, reselling books is completely legal.

The commenter’s argument usually goes something like this: “The publisher intended that book as a one-time use. It’s illegal for a second (or third, or fourth) person to use the book.” The seller may then reply that he or she purchased the book in question with the intent to consume it, but  ultimately never did — and is therefore selling the unused book. Or the seller may reply that the book is partially used — perhaps the consumable portion is missing a few pages, or has some writing in it — but the seller has since decided to no longer use the book, and is still offering the book for sale. None of that is sufficient for our commenter in this scenario, who insists that the resale of certain kinds of books  constitutes illegal activity. Before long, the forum thread or Facebook group post has spiraled downhill, and the seller is being accused of a copyright-defying pirating thief.

But in most instances, commenters aren’t upset just because the book may be resold. Generally, commenters are upset because there is an unverifiable possibility that the seller/original poster may have photocopied the entire consumable portion of the book and retained the photocopies before listing the volume for sale. Eager to save potential book buyers from participating in copyright fraud, they comment to warn others that purchasing the book is illegal.

Here’s the thing. Copying a book is illegal. But buying or selling a used book is not illegal, no matter what kind of book it is. There’s no copyright law against reselling or purchasing used.

Internet commenters like to play the copyright card, but here’s how it really works.

“The issue at hand involves possible conflicts within the copyright law. One side relies on one of the most basic of rules, handed down by the Supreme Court in 1908, and codified in the copyright law a year later. It’s called the ‘first sale doctrine.’ Before this court decision, [publisher] Bobbs-Merrill, in its copyright notice, added a limitation on reselling their books. In other words, if you tried to resell your copy of a book that you bought at a store, you might be violating their copyright. The court said no, and copyright law now includes the ‘first sale doctrine.‘ It says that after that first sale, the buyer may sell or otherwise dispose of that book however he or she sees fit without violating the copyright law. You (as an American) may safely sell or give away any book published in the United States without fear of violating the copyright law. The copyright law prevents you from copying a book, but not from reselling the copy you bought from the publisher.”  [2], [emphasis mine]

To put it another way, once a copyright holder sells the copyrighted volume to a consumer, the copyright holder’s rights have been exhausted, and the consumer has the right to dispose of (not copy, but dispose of) the book any way he or she sees fit.

Yes, copyright law protects authors and publishers by making it absolutely illegal for consumers to make copies of copyrighted books — the law is clear about that. And it’s this particular point that’s emphasized by most of the copyright infringement and theft articles out thereBut copyright law does not protect authors and publishers from consumers who wish to use a copyrighted book, then sell/give/trade the volume to another consumer.

This is an established right, first mentioned in the Supreme Court decision above, then codified in 1976 as 17 U.S.C. § 109 (see summary from Justice.gov here), when the U.S. Copyright Act was updated. A few years ago in Kirtsaeng v. John Wiley & Son (2013), the courts upheld the first sale doctrine and added that even if the book was published outside the United States, reselling used books still doesn’t violate copyright law. [3, 4]  This doctrine has more to offer the consumer than it does the publisher — publishing houses have not appreciated the enormous inventory of used books the e-commerce boom as made available to the consumer in recent years. The Boston Law Review [5*, page 590, footnote 45] even goes as far as to suggest that with the wide availability of used books on the market, and the first sale doctrine being as it is, publishers are finding it financially prudent to produce more and more consumable texts rather than non-consumable texts, in order to encourage the user to write in the volume, thus rendering it useless to the next consumer.

There’s a different set of  laws when we’re dealing with a book for which the consumer also purchases a non-transferrable user license, or a one-time use license, of course, but licensing and copyright are not the same. And frankly, most consumable workbooks simply don’t have a one-time use license attached. So unless you’re photocopying/scanning/otherwise reproducing books, merely buying/selling used books does not constitute  stealing from the publisher, stealing from the author, or violating copyright law. 

So, go ahead and sell that used book, consumable portions and all. You don’t need permission from the publisher. The Supreme Court already gave you that permission with the First Right Doctrine. “Once the good has gone through a legitimate first sale, the new owner may do with it as they please.” [6]

What’s your take on this hot-button issue?

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One thought on “Is it illegal to resell consumable books? How the ‘First Sale Doctrine’ affects copyright law and resale

  1. Really enjoyed this. It seems that so often people find themselves getting really worked up trying to control what others are doing instead of condemning ourselves with our own affairs.

    Like

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