May 22, 2014
Law publisher angers law students by breaking law
by Sal Robinson
If you’re an academic publisher and you want to sell textbooks under a plan that violates the first sale doctrine (which guarantees that books, once bought by a consumer, can be resold, as well as loaned, rented, and given away), the number one wrong group of people to try and sell them to are law students. Legal publisher Aspen Law, part of academic publishing giant Wolters Kluwer, learned this lesson recently, much—one imagines—to their well-deserved chagrin.
As Ian Chant describes in an article for Library Journal, during the first week of May, Aspen Law debuted a new purchasing plan, called CasebookConnect, for its Aspen Casebook series, a plan that bundled print and electronic editions together for the original price of the print book. But, and it’s a big but, they told buyers that once the course was over, they’d have to return the physical book. In return, they’d retain “lifetime” access to the electronic version, as if that were not a bonkers promise in the digital age.
Law students and law professors immediately kicked up a furor, since this goes directly against the first sale doctrine, is clearly aimed at the used book market, and shifts book sales over to a licensing model. Plus, the situation was law-textbook-thick with irony. On Techdirt, Mike Masnick wrote:
Just the very fact that Aspen is undermining basic concepts of property on its “Property” casebook seems troubling enough—but it shows how desperate publishers are these days to undermine basic concepts of property to prop up obsolete business models, built entirely on the basis of monopolistic pricing.
In the following days, University of Maryland law professor James Grimmelmann started a Change.org petition, asking professors not to assign the Aspen casebooks. The Washington Post‘s influential law blog, the Volokh Conspiracy, covered it. Kevin Smith, Duke University’s Scholarly Communications Officer, weighed in on it on the Duke University Libraries blog, pointing out a way forward:
The biggest takeaway from this controversy should be a reminder of the opportunity to create open educational resources that can avoid all of these silly and desperate efforts from publishers to maintain control even after the sale of a book. No field is more amenable to open textbooks than law, after all, where the large majority of the content, the cases themselves, are in the public domain.
That’s right: Aspen was trying to lock down material that they didn’t even have the limited authority of copyright over in the first place.
This was not a situation they could defend indefinitely. A few days after CasebookConnect was launched, Aspen apologized. But not really. In the new and improved version of the plan, students can buy either the bundled edition, in which case they still have to return the print book, or they can buy just the print book, which they don’t have to return. While commentators across the blogosphere approved this as an ok solution to the crisis, to me it seems like nothing of the sort: it incorporates the old (legal) model of textbook sales, while giving no concessions to students who, quite reasonably, might be hoping to make use of digital and print resources side-by-side, on fair terms.
It also, inexplicably, as Grimmelmann points out, flips the current model of bundled editions, where access to a digital edition expires after a certain period of time, whereas the print book stays with the buyer. The Aspen model, he writes on his blog, “gives students first sale rights over neither version.” This non-change makes the CasebookConnect not only an entirely predictable red flag to the legal community, but also incredibly hard to enforce: can you imagine Aspen trying to bring a case against even one law student who hadn’t returned a $200 textbook after three years of paying of between $20,000 and $40,000 to graduate into a dubious economy? If I were that law student, I’d make it my job to eat them alive.
Intemperate, indebted choler aside, this is clearly an attempt to try out licensing models, which prevail in e-book sales, on print editions. The fact that it has failed may be — cautiously — cause for hope.
Sal Robinson is a former Melville House editor. She's also the co-founder of the Bridge Series, a reading series focused on translation.