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Thread: Copyright infringement vs. "First Sale Doctrine"

  1. #1
    Publishing Mentor dsieg58 is a Premium Member
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    Copyright infringement vs. "First Sale Doctrine"

    Here's a good one. Someone contacts me and says "Hey Dave, did you know that your books are being sold from a campus textbook rental store?" I say no, because I'm very well aware of all my sales channels, and renting them out isn't one of them. So I amble (Click) on over to the store, and sure enough 10 of my books are being sold/rented there. Not only that, but they are being "rented" for roughly twice my price for six months. He has an entire website full of just about every textbook you can think of. He even has my fiction up there. I'm amused now so I do a whois lookup, then scour my records for the buyer. No sale that I can find going back to 2006.

    I contact the website owner, and tell him he is infringing on my copyright, and to take the books down.

    He replies back that he operates under the "First Sale Doctrine" and is allowed to do whatever he wants with a legally purchased copy of my work. Not being one to quibble with the Supreme Court, and completely amused at his cheekiness, I reply that I applaud his entrepreneurial spirit and please produce the receipt for the "first sale" if that is the case.

    (The "First Sale Doctrine" in the US states that a person can do whatever they want with a legally purchased copy of a copyrighted work, except reproduce it.)

    Well...that's a problem. He doesn't have any because he waits until someone purchases the book, then he buys it, then he rents it out. So far, no one has bought any. Now, my (Nonfiction) books ARE used as textbooks at over 100 universities, so it is very possible he's doing a brisk little business. Now keep in mind, I'm more amused by his audacity than offended by the legal transgression. I've given away 100's of copies to students who couldn't afford them when they contact me. He replies back (politely) that he's taken down all my books and wishes me a good day.

    I go to check the pages in question and there is a banner that says "Wow! Man, we already ran out of this title. The response to this book has been crazy huge! Check back though as we have new titles coming in every day!"

    So what he is doing is, he buys the book once, (If he can be believed) then rents it out over and over, for a limited period of time, (90 days, 180 days) for twice the retail cost. Gets it back, then rents it out again. Strictly speaking, he is following the First Sale Doctrine, although using it in a way it was never intended, which therefore would make it technically illegal.

    I'm still laughing. What does everyone think of his "business plan?"

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    Chabrenas (26 August 2014), Clinton (26 August 2014), Kay (26 August 2014)

  3. #2
    Moderator Kay is a Premium Member
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    Great posting, but I don't get how he rents it out for twice the retail cost. What did I misunderstand? Why don't people just buy at retail cost themselves?
    British Expat - helping people to live and work abroad since the year 2000.

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    Publishing Mentor dsieg58 is a Premium Member
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    Exactly!!! That's the hilarious part of the whole thing. Why would someone rent a textbook for $400, when they can buy it for $200? It doesn't make the slightest bit of sense. It didn't have the courage to tell him his business model might lack a certain forward momentum. He's a kid...what can you say?

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    Moderator Kay is a Premium Member
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    Confucius says: He who laughs last is slow to get the joke.

    I just couldn't comprehend it. (No sense of humour.)
    British Expat - helping people to live and work abroad since the year 2000.

    The joy of Internet delivery - the cartoon illustrating this will make you laugh!



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    Publishing Mentor dsieg58 is a Premium Member
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    I just searched under your name but it only has those bodice-rippers you penned.

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    Just curious here, is the a physical book (ie, hardcover or paperback?), or are we talking an electronic copy like a pdf or kindle book? AFAIK, the laws are very different depending on ths, but of course IANAL.

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    Publishing Mentor dsieg58 is a Premium Member
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    Just curious here, is the a physical book (ie, hardcover or paperback?), or are we talking an electronic copy like a pdf or kindle book?
    I'm assuming paperback. (I don't have hardcovers, and I don't sell eBooks, (anymore) unless someone contacts me directly.) Oh, it's illegal. No question. But nothing I'm going to get worked up over. Business reality will do that for me. Legally speaking, this wouldn't be a case worth pursuing, at least not to me. I wouldn't be able to keep a straight face in court.

    It sort of reminds me of back in the day when Sony got fed up with Napster for all the illegal downloads so they decided to make an example of someone and screw them to the wall. They chose the person with the most illegal downloads (Something like 25,000 of them) and went at them full force legally with plenty of media power to show they weren't going to stand for it anymore. Turns it it was a 12 year old girl whose main defense was "I didn't know it was illegal...they were offering them for free." (Her parents apologized and that was the end of it)

    Not exactly the career criminal they were hoping for. This would end up similar. Of course, there are differences, but the bottom line is I doubt he has any money, or is making any money, or is going to make any money, anyway.

    I'm not sure what IANAL stands for, but it sounds kinky.

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    Is it the renting bit you're saying is illegal? Selling used books certainly isn't illegal, at least in the USA, and in pretty much every other country I've ever visited there are well established markets for used books.

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    Moderator Kay is a Premium Member
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    I just searched under your name but it only has those bodice-rippers you penned.
    I am deeply insulted by this. You think that if I wrote those things, I wouldn't have the sense to use a pen name? Shame on you!

    Come to think of it, I wonder if any of the other Kay McMahon's readers are deeply disappointed if they buy one of my books by mistake. I can just imagine it. There they are, tucked up in bed, with a cup of cocoa on the bedside cabinet, looking forward to some steamy romance, and they're treated to a treatise on how to avoid online scams or the like. Aye, maybe I would be better off writing some bodice-rippers. I might just do it as a challenge if I can ever clear my desk. Right now I'm still working on stuff so I can launch my next business-related book.

    I'm not sure what IANAL stands for, but it sounds kinky.
    It's when you take the first person nominative pronoun and add it to someone's rear end. It's almost as good as banal, when a bee is added. Having a bee up the jacksie is not an attractive proposition. Therefore I suggest that we interpret IANAL as meaning I Am Not A Lawyer.
    British Expat - helping people to live and work abroad since the year 2000.

    The joy of Internet delivery - the cartoon illustrating this will make you laugh!



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  14. #10
    Publishing Mentor dsieg58 is a Premium Member
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    Is it the renting bit you're saying is illegal?
    No, not per se. Selling used books isn't illegal. But renting the same book over and over, and creating a profit center around them, without paying the author royalties, is stretching the definition of "first sale" to an extreme. The intent of the law was so that publishers/manufacturers couldn't go after someone selling his legally bought property second-hand. (At least as I understand it) Not someone creating a for profit business around selling your work.

    Put it this way, if I buy a book (1 copy) and sell it to you, then it's perfectly legal. If I buy a book (1 copy) and sell it to multiple people, creating a for profit business and profiting from the work of another, without giving the author royalties, then yeah, I would say that is illegal. But is it illegal in the eyes of the law? That would be a question for the courts to decide. I'm not a lawyer, maybe DavidS could weigh in. But it seems to me, you're heading into the territory of, or the spirit of reproduction for profit. I could be wrong.

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