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Monday, February 16, 2009

What do you say to the book buyer?

What is the upstanding law professor's proper response to the book buyer who periodically darkens our doorway?  Is there something unethical (or even illegal?) about selling review copies of casebooks that we never asked for and cost us nothing?  If there's nothing wrong with selling them, should we at least feel some sort of obligation to give the proceeds to some worthy law school-related cause?

Posted by Rob Vischer on February 16, 2009 at 11:49 AM | Permalink


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Complimentarily yours: free examination copies and textbook prices

Article Abstract:

The argument by textbook publishers that the sale of free examination copies by teachers effectively increases the textbook prices to students, is investigated by modeling the impact of the sale on publishers' edition life decision. The decision affects the average price because it specifies the mix of new and used books in the market. Findings indicate that the sale of complimentary copies lengthens edition life and therefore decreases mean textbook prices.
author: Foster, James E., Horowitz, Andrew W.
Publisher: Elsevier B.V.
Publication Name: International Journal of Industrial Organization
Subject: Business, international
ISSN: 0167-7187
Year: 1996

Posted by: R Dex | Aug 4, 2009 7:52:55 PM

Scott, your aggravation at unsolicited books for some reason reminds me of the famous hotel soap story:


Posted by: Bruce Boyden | Feb 20, 2009 9:28:57 PM

Yes, Edward - donating to book buyers would do a better job of driving down prices in the used book market. But how many profs would bother? Also, when I've dealt with book buyers, my calculus is, "it might be somewhat useful to keep this book on my shelf, but the odds are fairly low I'll need it, so I'll take the $10." Had I felt bound by a norm against selling to book buyers, I'd probably have kept those marginal books. I'm guessing that you don't disagree, given your caveat that a donations model would be better "in the short-term" -- I'm assuming you were implicitly agreeing that in the long run, fewer books would reach the book buyers if the book buyers had to rely on charitable donations, rather than market-incentivied sales, to their for-profit businesses (I apologize in advance if I'm mis-assuming your meaning).

And I agree that in concept, selling used books could incentivize profs not to "turn off the spigot" -- though my experience is that the spigot's "off" knob doesn't work. In my first year of teaching I actually did send several unsolicited books back "RETURN TO SENDER" (the ones outside my field(s)), and I since have had conversations with publishers about my specific interests -- none of which has stopped the flow of books that are at best tangential to my interests....

Posted by: Scott Moss | Feb 20, 2009 5:43:19 PM

Re: "Selling books to the book buyers supports a market in used books that saves students money."

Perhaps this is so, but it's not the best way, unless others are not so purely motivated -- you need to come up with another explanation as to why permitting professors to sell is required. *Donating* the books to the used book buyers would be even more market-supportive, at least in the short-term; lowering the marginal costs might generate savings that would be passed on to the students, or at the very least increase the sector's profitability and keep it sailing along. So long as used booksellers are not inhibited by whatever restrictions are in controversy, no problem -- and I think the only question on the table is whether professors should feel free to sell.

Not incidentally, donations support the market without creating the hazard that a professor receiving unwanted books, but capable of reselling them, may be too slow to turn off the spigot.

Posted by: Edward Swaine | Feb 18, 2009 10:26:06 AM

Selling books to the book buyers supports a market in used books that saves students money. I'm all in favor of moral arguments that certain market transactions are bad -- but I feel very good about reselling books sent to me by publishers who wastefully mail me books unsolicited that they otherwise charge my students $150 for. Is our anti-market outrage really well-spent on markets for used books for our students???

And "Anon": I hope you're not a law student, because there's zero argument that it's "theft from the publisher and the authors, since you are deliberately undercutting their market": (1) there's no "theft" law against "deliberately undercutting [someone else's] market"; and (2) publishers spam me with their books unsolicited without my agreement not to put unused copies back into market circulation. When they email me about their new books, I sometimes ask for copies, but usually don't -- and I find it annoying when I'm sent books I never requested.

Posted by: Scott Moss | Feb 17, 2009 10:37:07 PM

I have no opinion about the legal or ethical implications of selling unsolicited review copies of books (although I never got any with a "not for resale" legend or any communication that the book wasn't mine to re-sell if I wanted). But I would like to comment on the tax implications. There's a great case that we're talking about today in my Federal Income Tax class (if I get to it) about unsolicited books donated to charity (Haverly v. U.S., 7th Cir. 1975). The 7th Circuit found that unsolicited books do not constitute income just because you use them (which would be a reasonable interpretation of the law) but if you sell them or take a deduction for donating them to charity, they're income to you then. I doubt that failing to report that income is "tax fraud," but if you do sell them you should report income in the amount of the sale proceeds. This is true, by the way, even if you have no right to sell them and are in effect "stealing" them.

Posted by: Ben Leff | Feb 17, 2009 2:02:42 PM

As a technical matter, I think the answer depends in part on whether there is a complete absence of solicitation (e.g., no prior general expression of interest by the professor in receiving complimentary copies from that publisher, at least in that field) and book-specific state law (I believe NY was enacting a law that indirectly prohibited selling complimentary textbooks).

Personally, I never sell them, irrespective of the technicalities, because I don't like violating the spirit in which they are given. That said, I'm not sure that spirit is best characterized as "generous" -- the unambiguous objective is to get one to consider using the book, even at the cost of a sale. Think of it like the free tubelet of toothpaste that comes in the mail or with the Sunday newspaper -- nice, yes; generous, no -- but this time, offered knowing you can compel hundreds of others to brush with that brand.

Posted by: Edward Swaine | Feb 16, 2009 10:14:11 PM

I agree with Viva that reselling doesn't violate copyright law. (To the extent that's what "Anon" means by "theft," I disagree.) The publisher could try to argue that the book is being "licensed" without ownership being transferred, but the reality of the situation is that the publisher never asks for the book back.

But there could be an implied or possibly even express contract, with acceptance by performance (accepting the book). I believe there was a post over on Madisonian.net on exactly this issue about a year ago. In any event, I agree with David Levine's assessment of the practicalities of the situation.

Posted by: Bruce Boyden | Feb 16, 2009 6:46:31 PM

Prison libraries can use them too.

Posted by: Ethan Leib | Feb 16, 2009 3:24:16 PM

Over the years, the law book publishers have been very generous in supplying us all with complimentary copies. They are far more generous than in other academic fields. If we make a practice of selling off the complimentary books, we will lose this privilege.

Give them to your library.

Posted by: David Levine | Feb 16, 2009 3:08:27 PM

I think the answer is clear: (1) you may sell books you paid for, but not books given to you as a courtesy for reference or possible course adoption. (2) A prof should explain this principal to the book buyer. (On the other hand, if you wish to sell the books you used in law school, then book buyers perform a convenient service.)

If you have books you don't want, donate them to your library.

Posted by: Vladimir | Feb 16, 2009 1:15:25 PM

I've noticed that some books are now arriving with a "not for resale" legend on the cover, though I haven't (yet) gotten one with a contract purporting to limit resale. Selling the books to book buyers (or students or anyone else) is perfectly consistent with copyright's first sale doctrine. As for what one should do with the proceeds, I suppose that is left to the realm of the conscience.

Posted by: viva moffat | Feb 16, 2009 12:55:34 PM

For most, it's likely tax fraud since few people claim the money on their return (or claim the books in income when received from the publisher).

It's also theft from the publisher and the authors, since you are deliberately undercutting their market.

Posted by: Anon | Feb 16, 2009 12:49:55 PM

Here's what I say: "When it comes to books, this office is like the Roach Motel."

Posted by: Michael Froomkin | Feb 16, 2009 12:12:02 PM

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