Shrinkwrap Licenses for Books?
This post on LISnews asks about the enforceability of shrinkwrap licenses on books. The idea is that publishers can place restrictions over and above copyright restrictions by requiring the reader to agree to a contract before he or she can use the book.
In general, restraints on what buyers can do with copies they buy are preempted by the First Sale Doctrine, codified at section 109 of the Copyright Act. Whether a shrinkwrap on a book constitutes a valid contract that can allow publishers to sue users who violate its terms without infringing copyright is a question that has not been definitively answered.
However, in thinking about the question, it’s fruitful to look back at the case that gave us the First Sale Doctrine in the first place — Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908). That case, though decided almost a hundred years ago, presents a nearly perfectly analogous fact situation. Right under the copyright notice, Bobbs-Merrill inserted the following language:
The price of this book at retail is $1 net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright.
Looks to me like a primitive “browsewrap” license. Bobbs-Merrill didn’t involve a contract claim, but I suspect that’s because nobody really thought that you could form a contract just by opening and reading a book. (Now we know better. Ahem.)
The common law used to frown on restraints on alienation — situations where parties were bound to forego selling their own property just because someone else said so. Let’s hope that when this issue comes before a court, they keep in mind the spirit of Bobbs-Merrill — the idea that once a particular authorized copy of a work has entered the stream of commerce, the copyright holder no longer controls the later sale, modification, or disposal of that particular copy.
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Gratz on Shrinkwrap Licenses for Books
Yesterday, I blogged about reports of shrinkwrap licensed books (Shrink Wrap Licensed Books). Today, Joe Gratz writes the more cogent explanation of the issue that I was too lazy to write yesterday (Shrinkwrap Licenses for Books?)….
Trackback by Copyfight — June 8, 2005 @ 2:37 pm
Think of the coin TopCat palmed off on the maitre-d’ with the leetle string attached.
Talk about eating your cake and still having it.
Let’s sell our copyrighted works with a EULA that says “By breaking the seal on this product you accept our license terms which revert ownership of the product to the original publisher”. In other words when you buy the product you simply buy the privilege to own it, you don’t buy the privilege to use it. By using it, you relinquish ownership.
You have to wonder where the morons are. There is plainly a disconnect going on. The punter doesn’t give a toss, they buy the product and use it and believe they own it. If you send the lawyers round, the punter is completely baffled. The press has a field day. The next day nothing has changed.
This is aiming a sniper rifle at a shoal of fish. What’s the flipping point?
Comment by Crosbie Fitch — June 8, 2005 @ 3:19 pm
Well, a couple of things we do know. While the enforceability of ELUAs is still an open question, the ELUA is specifically not enforceable unless the full terms of the license are available to read before breaking the license seal.
I’d argue that the contract of the book can only be made at sale where a contractual situation occurs and that any subsequent restrictions added after the sale are unenforceable. This doesn’t negate the concept of the ELUA, only the time at which the license must be agreed to.
But, as Joe points out, there is precedent for the Doctrine of First Sale to supersede any subsequent license, otherwise there would be no Doctrine of First Sale, for all practical purposes, since all publishers could opt out of it by a “license agreement.”
Comment by Scote — June 8, 2005 @ 6:12 pm
[...] rdity, shrink-wrapped
Filed under: Copyright — Luke Brean @ 12:06 pm
Joe Gratz has an illuminating note on the enforceability of shrink-wra [...]
Pingback by redundant-info.info » Absurdity, shrink-wrapped — June 9, 2005 @ 9:07 am