• <b>One of a Kind Collectibles<br>Now through Oct. 27: Rare Autographs, Books, Sports and Art</b>
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Important Aviation Archive w/The Contract For First Trans-Pacific Flight. Est. $30,000-$50,000.
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Albert Einstein Signed Photo. Est. $2500-$3500.
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Dodgson’s own copy of <i>The Hunting of the Snark</i>, signed and dated by the author the day after publication with original photo. Est. $10,000-$12,000.
    <b>One of a Kind Collectibles<br>Now through Oct. 27: Rare Autographs, Books, Sports and Art</b>
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Abraham Lincoln Early Legal Brief. Est. $3500-$4000.
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> The Beatles: Autographs of John Lennon, Paul McCartney and George Harrison and more 60's Groups. Est. $3000-$2500.
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Hector Berlioz Rare AMQS. Est. $4000-6000.
    <b>One of a Kind Collectibles<br>Now through Oct. 27: Rare Autographs, Books, Sports and Art</b>
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Renoir, Autograph Letter Signed. Est. $2700-3500.
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Ferdinand and Isabella, Manuscript Document Signed. Est. $6000-9000.
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Lincoln-Douglas Debates Signed by William Howard Taft. Est. $1400-$1600.
    <b>One of a Kind Collectibles<br>Now through Oct. 27: Rare Autographs, Books, Sports and Art</b>
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Stunning Vintage Amelia Earhart Signed Photo. Est. $2000-$2500
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Marilyn Monroe's Hair From her hair dresser. Est. $1200-$1800.
    <b>One of a Kind Collectibles<br>Now through 10/27:</b> Babe Ruth Signed Album with Others Sports and Entertainment Stars of the 20s. Est. $1800-2500.
  • <b>Seth Kaller:</b> Leaves from<br>George Washington's Own Draft <br>of His first Inaugural Address. An Extraordinary Rarity!
    <b>Seth Kaller:</b> Declaration of Independence: Benjamin Tyler 1818 - First Print with Facsimile Signatures.
    <b>Seth Kaller:</b> Thomas Jefferson Signed Act of Contress Authorizing Alexander Hamilton to Complete Famous Portland Maine Lighthouse.
    <b>Seth Kaller:</b> Emanuel Leutze. Silk Flag Banner designed by Leutze, created by Tiffany & Co., and presented to Gen. John A. Dix, 1864.
    <b>Seth Kaller:</b> The "greatest of early American maps … a masterpiece" (Corcoran). Thomas Holme.
    <b>Seth Kaller:</b> Lincoln Summons His Cabinet for a Historic Meeting to Discuss Compensated Emancipation.
    <b>Seth Kaller:</b> Albert Einstein. Autograph Letter Signed. Einstein Counsels His Son ... Meaning of Life.
    <b>Seth Kaller:</b> Normal Rockwell. Painting/Drawing Signed. Rockwell's "Barbeshop Quartet", 1936.
    <b>Seth Kaller:</b> Frederick Douglass. Autograph Letter Signed to unknown correspondent. Washington, D.C.
    <b>Seth Kaller:</b> Harry Truman. Autograph Manuscript Notebook for Kansas City Law School Night Class.
    <b>Seth Kaller:</b> Robert E. Lee. Autograph Letter Signed, June 11, 1782. Hours after the Battle of Culpeper Court House, Lee Escapes Again.
    <b>Seth Kaller:</b> George Washington. Letter Signed, as Commander-in-Chief, Continental Army, to Elias Dayton, Headquarters, [Newburgh, N.Y.], June 11, 1782.
  • <b>19th Century Shop.</b> (AMERICAN WEST.), Watkins, Taber, Savage, and others. <i>Magnificent Album of Mammoth Photographs of the American West, with other subjects various,</i> ca. 1865-1880s
    <b>19th Century Shop.</b> EINSTEIN, ALBERT. <i>The Meaning of Relativity,</i> signed by Einstein. London: Methuen, 1922
    <b>19th Century Shop.</b> CARTER, SUSANNAH. <i>The Frugal Housewife</i> (1772) 2d cookbook printed in America.
    <b>19th Century Shop.</b> SHAKESPEARE, WILLIAM. <i>Comedies, Histories, and Tragedies. Published according to the true originall copies.</i> The second impression. London: by Tho. Cotes, for Robert Allot, 1632
    <b>19th Century Shop.</b> (BROOKLYN). <i>An Act to Incorporate and Vest Certain Powers in the Freeholders and Inhabitants of the Village of Brooklyn, in the County of Kings.</i> Brooklyn: Printed by A. Spooner, 1816
    <b>19th Century Shop.</b> PAINE, THOMAS. <i>Common Sense</i> (1776) first edition sheets.
  • <b>Skinner Auctioneers and Appraisers: Fine Books & Manuscripts.<br>October 30, 2016</b>
    <b>Skinner Oct. 30:</b> Cook’s <i>Voyages</i>, 1773-1785, complete set with Atlas volume. $40,000-60,000
    <b>Skinner Oct. 30:</b> Henry Warre, <i>Sketches in North America</i>, 1848, first edition, hand-colored.<br>$40,000-60,000
    <b>Skinner Oct. 30:</b> Catlin’s <i>North American Indian Portfolio</i>, 1875. $40,000-60,000
    <b>Skinner Auctioneers and Appraisers: Fine Books & Manuscripts.<br>October 30, 2016</b>
    <b>Skinner Oct. 30:</b> John Torrey Morse’s <i>The American Statesman</i>, autograph edition, extra-illustrated with original signed documents.<br>$35,000-55,000
    <b>Skinner Oct. 30:</b> McKenney & Hall’s <i>History of the Indian Tribes of North America</i>, folio, three volumes, 1837-1844. $35,000-55,000
    <b>Skinner Oct. 30:</b> John Webber’s <i>Views in the South Seas</i>, 1820, hand-colored plates. $30,000-50,000
    <b>Skinner Auctioneers and Appraisers: Fine Books & Manuscripts.<br>October 30, 2016</b>
    <b>Skinner Oct. 30:</b> A Collection of Eight Signed Letters, Some Men of Fame Autograph Collection.<br>$35,000-40,000
    <b>Skinner Oct. 30:</b> George Washington Signed Letter inviting Senator John Laurance to John Adams’s Presidential swearing in ceremony. $30,000-40,000
    <b>Skinner Oct. 30:</b> Elizabeth, Empress of Russia Coronation Festival Book, St. Petersburg, 1744. $30,000-40,000

Rare Book Monthly

Articles - November - 2011 Issue

Could Reselling Used Books Become Illegal?


The Appeals Court came down on the side of restricting the sale of used items.

We recently received a message from a “Ken,” self-described “Overworked Lead Blogger” at Heroic Times, a blog website. You may have seen it too as he sent the message to numerous used and antiquarian book related sites. It has to do with a decision by the U.S. Court of Appeals for the 9th Circuit (west coast) that was effectively allowed to stand by the U.S. Supreme Court. The Supreme Court declined to hear an appeal of that decision, which is not quite the same as affirming it, but allows it to be almost the law of the land, and definitely the law on the west coast.

The case had to do with the reselling of computer software. The decision essentially prohibited people from reselling computer software where such is forbidden in the terms of the original “sale” (or perhaps “lease”). Computer software may not be a big item for sellers of used books, but Ken's concern is over what happens if book publishers start printing such prohibitions of resale in the books they publish. Can they now legally shut off the sale of used books going forward?

The issue of resale of copyrighted material goes back to a Supreme Court decision in 1908. Evidently, some publishers must have felt that since they held a copyright on a book, a purchaser of that book could not resell it to another without violating the copyright. The Supreme Court said no, developing something known as the “first-sale” doctrine. Essentially what it said is that once the copyright holder has made the “first sale” of a specific item, the buyer is free to do as he pleases with that item, including reselling it. He can't make copies of that book and resell them. That violates the copyright. However, he may resell the original copy for which he paid. A year later, Congress passed a statute that reaffirmed that court decision, and while it has been updated over the years, such as adding phonograph records, it basically maintains the “first-sale” doctrine as the law of the land.

Starting in the 1970s, and greatly expanding ever since, a new, ephemeral product began to be sold – computer software. It usually was placed on some type of physical object, like a floppy disk or later a CD, but it wasn't a physical object in quite the same way as a book. In fact, often it was meant to be copied, that is, copied from the disk or CD to a computer's hard drive. Makers of this software were concerned that the fact that people needed to copy the software to a hard drive to use it would allow them to share that software with their friends, who did not pay for it. You could buy one set, but then copy it onto an unlimited number of computers. Sure, you could share your books and records with your friends, but you couldn't both use them at the same time. With computer software, your friends could copy it to their computers and hundreds of people could use that one set of software at the same time. This, naturally, looked very unfair to the people who designed and sold software.

Their response was to create limitations – you could not resell the software to others. Since this appears a violation of the “first sale” rule, they came up with a better idea. They would not sell the software, or the disk on which it was placed. They would lease it. Now, it's more like the car or house you lease. You don't get to sell it when the lease is up. You have to return it to the owner.

What the software makers were attempting to accomplish was something of an end-run around the “first sale” rule. Since that only applies to sales, they would simply never sell software again. They would lease it. The protection they sought may well be appropriate for something as ephemeral as software, and maybe not. That isn't for us to say. What leasing would accomplish, if upheld, is effectively eliminate the consumer protection afforded by the “first-sale” doctrine. The transaction may essentially work like a sale – you keep the product, the lease never ends – but since it is called a “lease” rather than a “sale,” the manufacturer is able to skirt the protections of the “first-sale” doctrine.

This was how the trial court saw the “lease” - a sale disguised as a lease. At issue was a set of Autodesk software that an eBay merchant was offering for sale online. Autodesk argued that this product was only leased, not sold, so the possessor (as opposed to an owner) had no right to sell it. The trial court looked at the circumstances and decided this was really more like a sale, and so “first sale” applied. The transaction may have been described by Autodesk as a lease, but it smelled like a sale. There was no time limit on the lease, there were no ongoing payments like a typical lease (just an upfront price typical of a sale), and the “lessee” was never expected to return the disk or software to Autodesk when finished using it. It had all of the features of a sale, except that it was called a “lease.” The trial court ruled that the possessor/eBay merchant really was the owner and therefore had the right to sell the software/disk.

This decision was reversed by the 9th Circuit Court of Appeals. Along with the parties to this transaction itself, some heavyweights made arguments on appeal. The Software & Information Industry Association, which includes many of the largest software makers among its members, and the Motion Picture Association of America sided with Autodesk. Ebay and the American Library Association sided with the seller. While acknowledging that a sales-like nature of a transaction is a factor, the Appeals Court essentially concluded that where the language of the contract clearly stated that it was a lease, then a lease it was. So long as the manufacturer specified that it was only granting a license to use the product, specifically restricted the right to transfer the product, and imposed restrictions on the product's use, then the transaction will be recognized as a lease, not a sale. Effectively, it allows a manufacturer, so long as they place the right language in the fine print, to avoid the application of the “first-sale” rule and prohibit their customers from reselling their software when they no longer want it for themselves.

When the Supreme Court declined to hear the appeal, it let this ruling stand, and while it may decide to hear a similar case sometime in the future, and perhaps overturn it, that does not appear very likely.

So what does all this have to do with books? Well, more and more books are being offered as software now anyway. It is easy enough for those selling electronic books to “lease” them instead, saying the “lessee” has a right to keep their copy for life, never make any further payments, and never return it, but they are forbidden to transfer their electronic copy to anyone else. It would shut off the used electronic book trade. But, this is probably not Ken's major concern, since it's hard to imagine there will ever be a trade in collectible electronic books. The question is, why can't publishers place similar restrictions on printed books? They could simply print on each copy that it is available only for lease, and may not be transferred or sold to anyone else. Are words printed on paper somehow different from software imbedded in a disk in terms of the requirements of this decision? Not obviously. A lease is a lease by this decision, and it is not obvious why a publisher of printed books cannot avail itself of the benefits it provides any more than the software manufacturer.

Of course this would not apply to all of the old books out there now containing no such warnings, but books printed in the future could possess such limitations. Since most book buyers are probably not thinking of the eventual disposal/resale of their new books when they buy them, they just want to read them, they likely would accept the terms if a “lease” is all that is available. Years from now, the collector would be out of luck. The publisher could prevent the copy of the rare first edition, found in the attic of the long dead “lessee,” from ever being resold. The heirs could be forced to return it to the publisher, who would be the only one who could legally sell the book to a collector, and for a handsome price.

The court did add a note for those who are concerned about where this decision may lead. “These are serious contentions on both sides,” they pointed out, and “Congress is free, of course, to modify the first sale doctrine and the essential step defense if it deems these or other policy considerations to require a different approach.” That they are, but as the Google Books mess has shown, Congress is reluctant to do much of anything any more. It is Congress' job to debate the weighty issues and decide what is the right public policy, but there seems little indication that Congress will do much of anything that doesn't serve some lobbyist's special interest. Nor is there any guarantee that if they did, the Supreme Court wouldn't find a law designed to protect regular people “unconstitutional.” In 1908, when the “first-sale” doctrine first came down, Teddy Roosevelt was President, and the old Bull Moose made sure that government worked for all of the people. 1908 was a long time ago.

Rare Book Monthly

  • <b>Bonhams: Voices of the 20th Century. December 7, 2016</b>
    <b>Bonhams: History of Science and Technology. December 7, 2016</b>
    <b>Bonhams: Voices of the 20th Century. December 7, 2016</b>
    <b>Bonhams: History of Science and Technology. December 7, 2016</b>
  • <b>Swann Auction Galleries Nov 1: Autographs</b>
    <b>Swann Auction Galleries Nov 1:</b><br>Civil War-era album with more than 130 signatures, including 18 presidents, 1864-2010.<br>$60,000 to $90,000.
    <b>Swann Auction Galleries Nov 1:</b><br>Claude Monet, Autograph Letter Signed, to friend and art critic Gustave Geffroy, 1891.<br>$6,000 to $9,000.
    <b>Swann Auction Galleries Nov 1:</b><br>George Washington, partly-printed Document Signed as Commander-in-Chief, a military discharge, 1783. $7,000 to 10,000.
    <b>Swann Auction Galleries Nov 1: Autographs</b>
    <b>Swann Auction Galleries Nov 1:</b><br>Clarence Darrow, Typed Letter Signed, inviting attorney Frank Spurlock to join him during the Scopes Trial, 1926. $3,000 to $4,000.
    <b>Swann Auction Galleries Nov 1:</b><br>J.D. Salinger, Autograph Letter Signed, "Jerry," offering consolation, 1972. $4,000 to $6,000.
    <b>Swann Auction Galleries Nov 1:</b><br>Poster Signed by each member of The Beatles near the inkblot he most resembles, 1964. $4,000 to $6,000.
    <b>Swann Auction Galleries Nov 1: Autographs</b>
    <b>Swann Auction Galleries Nov 1:</b><br>Photograph Signed by The Three Stooges, additionally inscribed by Moe, 1930s. $2,500 to $3,500.
    <b>Swann Auction Galleries Nov 1:</b><br>Jules Verne, Photograph Signed and Inscribed, 1900. $3,000 to $4,000.
    <b>Swann Auction Galleries Nov 1:</b><br>Thomas Jefferson, Printed Document Signed as Secretary of State, admitting Vermont into the Union, 1791. $10,000 to $15,000.
    <b>Swann Auction Galleries Nov 1: Autographs</b>
    <b>Swann Auction Galleries Nov 1:</b><br>George Washington, lottery ticket signed "G:Washington," 1768.<br>$4,000 to $6,000.
    <b>Swann Auction Galleries Nov 1:</b><br>Muhammad Ali, Signed & Inscribed Photograph and Typed Letter Signed, 1967. $1,000 to $2,000.
    <b>Swann Auction Galleries Nov 1:</b><br>Lou Gehrig, Photograph Signed & Inscribed (lower signatures printed), 1931. $3,500 to $5,000.

Article Search

Archived Articles

Ask Questions