No First Sale doctrine outside the USA?

No First Sale doctrine outside the USA?

Update: thank you to several readers who pointed out something I had missed. I’ll comment on that after the original post.**

I finished reading

Wool Omnibus Edition (Wool 1 – 5) (Silo Saga) (at AmazonSmile: benefit a non-profit of your choice by shoppiing*) by Hugh Howey

when I was work today, and had quite a long drive back in front of me.

I decided to listen to

Theodore Boone: Kid Lawyer (at AmazonSmile*) by John Grisham

with text-to-speech in the car on the way back.

This is a childrens’ book by the famous legal thriller author…my Significant Other read it a while ago, and I figured I’d try it. I as in the mood for something light.

In this case, the TTS actually did read me the rights statement in the beginning of the book.

I do tend to read those (I usually read all the words in a book…acknowledgements, index, and so on).

Something in this one caught my eye…er, ear.😉

It said:

“Except in the United States of America, this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser.”

Penguin says what?😉

According to this, it sounds like you couldn’t sell your copy (obviously, not of your e-book…I assume they just copied this from the p-book…paperbook) of Theodore Boone in England without first getting permission from the publisher (Puffin, an imprint of Penguin).

Not in a used bookstore…not at a garage sale…and you couldn’t even lend it to somebody in your family, from the way I read it.

I was curious, so I did a search for this book on

http://www.usedbooksearch.co.uk/

Limiting the results to the UK, there were plenty of copies available.

Gee, it must have been hard for all of those people to get permission to sell theirs from Penguin.😉

Publishers are not allowed to do this in the USA, thanks to something called the “First Sale doctrine”.

It basically dates back to 1908, and a case where Macy’s discounted a book (I’m simplifying things here, legal scholars). The publisher had put a statement in the book that it couldn’t be sold for under a dollar. Macy’s did, and the issue got all the way to the Supreme Court.

The Court essentially said that the copyright only covered the first sale of the copy of the book (in this case, from the publisher to Macy’s), not subsequent sales.

That was codified in 1976.

Section 109 (a) of U.S. copyright law says:

“Notwithstanding the provisions of section (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”
http://www.copyright.gov/title17/92chap1.html#109

Without that, you would legally be under the same restrictions as the rights statement I quoted suggests.

With e-books, I’ve seen people up in arms because they can’t resell them.

That’s not a “natural right” that’s always been true (in practice)…it’s a specifically granted right.

It’s possible at some point that it would be taken away, of course. Not likely (it’s survived more than a century), but not impossible.

I wonder if Penguin actually expects anybody to follow this, and if they ever try to enforce it.

People say a lot of things just hoping it scares people into compliance…but they might not want the issue to get into court and have some precedent decided that doesn’t benefit them going forward.

For a birthday, I gave my SO a parachute jump (this was some time back).

My SO is in insurance claims, and laughed at the release they had to sign…and let them know it would never hold up.

One provision was that nobody in your family could sue if something happened to you.

Of course, my SO doesn’t have the authority to sign away my rights! That paper would never have had legal standing to stop me from suing.

However, I would guess it works as intimidation…and to impress upon people how serious the activity is, which is a good thing.

Anyway, if you are outside the USA (and I have readers all over the world), I’m curious: do you have used bookstores? Are you aware of any kind of restriction like this, or an equivalent of  the First Sale doctrine? I’m especially interested in hearing from you if you are an intellectual property lawyer outside the USA. Feel free to let me and my readers know by commenting on this post.

** Thanks to Dragi Raos, Denis, and Harold Delk (so far)😉 who pointed out that I had missed this part of Penguin’s statement: “… in any form of binding or cover other that in which it is published”. I had incorrectly took that as “or in any form of binding or cover…” In other words, I understood it as saying that even if you put it in a different cover it wasn’t okay to resell it, when it actually reads as the injunction being against putting it in that other cover and selling it, not selling the original.  This may be an example of how we process differently when using text-to-speech…I do think I perhaps fill in more gaps with TTS than when sight-reading. That said, this still raises some questions for me. Why is it okay to put it in another cover in the USA, and not in the rest of the world? If you can turn books into art and tsotchkes (which always makes me shudder…do you really want to eat off a serving platter made up of books which have been torn to pieces for that purpose?), what’s wrong with creating your own cover for a book when you resell it? If I understand this correctly, if I put a book into a library type binding (putting a clear, strong layer on the original cover), I might not be able to sell it? Anyway, this is one of those cases where I will openly admit to having been wrong…I misheard what the statement said, and then didn’t re-read it when I put it into the article. Thanks again to the readers who helped make this blog more accurate!

Join hundreds of readers and try the free ILMK magazine at Flipboard!

* I am linking to the same thing at the regular Amazon site, and at AmazonSmile. When you shop at AmazonSmile, half a percent of your purchase price on eligible items goes to a non-profit you choose. It will feel just like shopping at Amazon: you’ll be using your same account. The one thing for you that is different is that you pick a non-profit the first time you go (which you can change whenever you want)…and the good feeling you’ll get. :) Shop ’til you help! :) 

This post by Bufo Calvin originally appeared in the I Love My Kindle blog. To support this or other blogs/organizations, buy  Amazon Gift Cards from a link on the site, then use those to buy your items. There will be no cost to you, and a benefit to them.

6 Responses to “No First Sale doctrine outside the USA?”

  1. Dragi Raos Says:

    “Except in the United States of America, this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser.”

    Bufo, note “…in any form of binding or cover other that in which it is published…”

    That clause has been in almost every book I ever bought. You must not “re-package” it for resale. It is there mainly to prevent retailers continue selling “remaindered” books the covers of which they have returned.

    • Bufo Calvin Says:

      Thanks for writing, Dragi!

      I can see that point about not remaindering books, in the case of paperbacks. When I managed a brick-and-mortar bookstore, we were instructed to tear the covers off books we were returning for credit because they hadn’t sold, and just mail the covers back as proof.

      It seems like rebinding those to fool the public would have been more trouble than it would have been worth.🙂 That doesn’t mean it doesn’t make sense to try to curtail the practice, though. I could see how someone might buy up all the “strips” to rebind them…or “dumpster dive” for them. One of my employees used to tear the strips in half, which would have taken care of that issue.

      Thanks for pointing this out! I’ve updated the post, and credited you (and a couple who followed you).

  2. Denis Says:

    I think you missed the part that says “in any form of binding or cover other that in which it is published”. As long as the book in in the original cover you can sell, lend etc., with impunity. What you can’t do, legally, is remove the cover and add one of your own.

    • Bufo Calvin Says:

      Thanks for writing, Denis!

      I appreciate that clarification! Yep, I had missed that…I’ve updated the post.

  3. Harold Delk Says:

    I think perhaps you have overlooked one of the salient elements in the statement: “in any form of binding or cover other that in which it is published”, which I interpret to mean the book may be sold, lent, etc. in its original cover or binding.

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