June 8, 2005

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.

UPDATE: Michael Madison has these comments.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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