• <b>Arader Galleries, March 25, 2017: Spring 2017 Auction</b>
    <b>Arader Galleries, Mar. 25:</b> Ruffed Grous, Plate 41. John James Audubon from <i>Birds of America</i>. Double Elephant Folio. First Edition Engravings with Original Hand Color. $45,000 – 60,000
    <b>Arader Galleries, Mar. 25:</b> Rosate Spoonbill, Plate 321. John James Audubon from <i>Birds of America</i>. Double Elephant Folio. First Edition Engravings with Original Hand Color. $110,000 – 150,000
    <b>Arader Galleries, Mar. 25:</b> American White Pelican, Plate 311. John James Audubon. First Edition Robert Havell Aquatint Engraving with Original Hand Color From <i>Birds of America</i> Double Elephant Folio.<br>$100,000 – 140,000
    <b>Arader Galleries, March 25, 2017: Spring 2017 Auction</b>
    <b>Arader Galleries, Mar. 25:</b> Jaguar, Plate 101. John James Audubon. $12,000 – 16,000
    <b>Arader Galleries, Mar. 25:</b> <i>Birds of Asia</i>. John Gould (1804-1881). London: Taylor and Francis for the Author, 1850-83. $80,000 – 130,000
    <b>Arader Galleries, Mar. 25:</b> <i>The Birds of Europe</i>. John Gould (1804-1881). London: by Richard and John E. Taylor, published by the Author 1832-37. $60,000 – 90,000
    <b>Arader Galleries, March 25, 2017: Spring 2017 Auction</b>
    <b>Arader Galleries, Mar. 25:</b> <i>The Birds of Great Britain</i>. John Gould (1804-1881). London: Taylor and Francis for the author, [1862]-1873.<br>$30,000 - 45,000
    <b>Arader Galleries, Mar. 25:</b> <i>The Natural History of Carolina, Florida and the Bahama Islands</i>. Mark Catesby (1682/83–1749). London: [1729-] 1731-1743 [-1747].<br>$275,000 – 350,000
    <b>Arader Galleries, Mar. 25:</b> <i>Dell’arcano del mare</i> [Books 1-4]. Robert Dudley (1573-1649). Firenze: Francesco Onofri, 1646. $50,000 - 70,000.
    <b>Arader Galleries, March 25, 2017: Spring 2017 Auction</b>
    <b>Arader Galleries, Mar. 25:</b> <i>Cartes Generales de Toutes les Parties du Monde</i>. Nicholas Sanson D’Abbeville (1600-1667). Paris: The Author and Pierre Mariette, 1658 [but 1659]. $20,000 - 30,000
    <b>Arader Galleries, Mar. 25:</b> <i>A Map of the Inhabited Part of Virginia, containing the whole of the Province of Maryland with Part of Pennsylvania, New Jersey and North Carolina.</i> Joshua Fry and Peter Jefferson.<br>$150,000 – 300,000
    <b>Arader Galleries, Mar. 25:</b> <i>Voyage dans l’Interieur de l’Amerique du Nord execute pendant les annees 1832, 1833 et 1834.</i> BODMER, Karl (illustrator) - Prince Maximilian zu Wied-Neuwied. $525,000 – 750,000
  • <b>Seth Kaller:</b> “America the Beautiful”
    <b>Seth Kaller:</b> George Washington, Tongue-in-Cheek, Writes James McHenry About His Wife or Mistress—But Funding the Continental Army is the Real Topic
    <b>Seth Kaller:</b> Young’s Map of the United States
    <b>Seth Kaller:</b> President Lincoln & His Most Profitable Client, the Illinois Central Railroad
    <b>Seth Kaller:</b> Lincoln Thanks Former Pro-Slavery and Newly Republican Congressman for a Fiery Anti-Slavery Speech at a Philadelphia Campaign Rally
    <b>Seth Kaller:</b> “A Visit From St. Nicholas” - great association copy inscribed by Clement C. Moore
    <b>Seth Kaller:</b> Einstein Agrees to Allow “a Short Book on the Hydrogen Bomb” to Use His Statement Made on Eleanor Roosevelt’s TV Show
    <b>Seth Kaller:</b> The Building Blocks of Albert Einstein’s Creative Mind
    <b>Seth Kaller:</b> A Unique Manuscript Map of Block Island Sound Including Fisher’s and Gardiner’s Islands, the Hamptons, and Montauk Point
    <b>Seth Kaller:</b> J.R.R. Tolkien Writes his Proofreader with a Lengthy Discussion of the Lord of the Rings, Including Criticism of Radio Broadcasts of his Work
    <b>Seth Kaller:</b> Six Benjamin Franklin Signed Receipts – Including his Earliest Obtainable Autograph — Acknowledging a Donation to the Famous Library Company He Founded, and Five Payments for His Pennsylvania Gazette
    <b>Seth Kaller:</b> Sherman Dishes on Lincoln & Thomas, Meade, Sheridan, Halleck & Grant
  • <b>Bonhams, March 9. Fine Books and Manuscripts, Including the Kennedy Years</b>
    <b>Bonhams Mar. 9:</b> BROWNING, ELIZABETH BARRETT. Autograph Manuscript Initialed ("E.B.B."), being the working notebook for the poems contained in <i>The Seraphim and Other Poems</i>. $400,000 to 600,000
    <b>Bonhams Mar. 9:</b> WILDE, OSCAR. Two leaves, pp 31-34, from the first appearance of <i>The Picture of Dorian Gray in Lippincott's Monthly Magazine for July, 1890</i>, with Wilde's autograph revisions. $40,000 to 60,000
    <b>Bonhams Mar. 9:</b> SHAKESPEARE, WILLIAM. <i>Comedies, Histories and Tragedies; Published according to the true Originall Copies. Second Impression. [THE SECOND FOLIO.]</i> $200,000 to 300,000
    <b>Bonhams, March 9. Fine Books and Manuscripts, Including the Kennedy Years</b>
    <b>Bonhams Mar. 9:</b> KENNEDY, JOHN FITZGERALD. Photograph Signed ("John F. Kennedy") and Inscribed, 8 x 10 inch gelatin silver print, of Senator Kennedy and Miss Barelli, at the swearing of the secretarial oath for Miss Barelli. $1,200 to 1,800
    <b>Bonhams Mar. 9:</b> COOPER, JAMES FENIMORE. Autograph Manuscript, being Chapter XXVII of <i>Afloat and Ashore</i>. $15,000 to 20,000
    <b>Bonhams Mar. 9:</b> IRVING, WASHINGTON. Autograph Manuscript, being Chapter 20 from Volume IV of <i>The Life of George Washington</i>. $20,000 to 30,000
    <b>Bonhams, March 9. Fine Books and Manuscripts, Including the Kennedy Years</b>
    <b>Bonhams Mar. 9:</b> VERNE, JULES. Autograph Manuscript Signed ("Jules Verne"), being the complete short story "<i>Une fantaisie de docteur Ox</i>". $100,000 to 150,000
    <b>Bonhams Mar. 9:</b> ALCHEMY. <i>[The Crowning of Nature, or Coronatio Naturae.]</i> Original alchemical manuscript on paper, ruled in red, with watermark of the arms of Schieland. $100,000 to 150,000
    <b>Bonhams Mar. 9:</b> DE JODE, CORNELUS. 1568 - 1600. <i>Quivirae Regnu, Cum Alija Versus Borea</i>. [Antwerp: Arnoldum Coninx, 1593]. $7,000 to 10,000
    <b>Bonhams, March 9. Fine Books and Manuscripts, Including the Kennedy Years</b>
    <b>Bonhams Mar. 9:</b> HOOKER, JOSEPH DALTON. <i>The Rhododendrons of Sikkim-Himalaya; Being an Account, Botanical and Geographical, of the Rhododendrons Recently Discovered in the Mountains of Eastern Himalaya</i>… $7,000 to 10,000
    <b>Bonhams Mar. 9:</b> CATLIN, GEORGE. <i>North American Indian Portfolio. Hunting scenes and amusements of the Rocky Mountains and prairies of America. From drawings and notes of the author, made during eight years' travel.</i> $20,000 to 30,000
    <b>Bonhams Mar. 9:</b> LINCOLN, ABRAHAM. HESLER, ALEXANDER. Platinum print, 8 3/4 x 6 3/4 in, of a beardless Lincoln, 1860.<br>$2,000 to 3,000
  • <b>Now in press: 19th Century Shop’s Catalog 170 Great Books and Photos. Please inquire for a copy.</b>
    <b>19th Century Shop.</b> <i>The First American Magna Carta. English Liberties.</i> Boston, 1721.
    <b>19th Century Shop.</b> Babbage presentation to Peel, the man who killed the Difference Engine 1832
    <b>19th Century Shop.</b> The Stamp Act. 1765
    <b>Now in press: 19th Century Shop’s Catalog 170 Great Books and Photos. Please inquire for a copy.</b>
    <b>19th Century Shop.</b> Central Park Photographs by Prevost 1862
    <b>19th Century Shop.</b> Salem Witch Trials. Wonders of the Invisible World 1693
    <b>19th Century Shop.</b> Mammoth print of Millie-Christine, "The Carolina Twins" c. 1868

Rare Book Monthly

Articles - November - 2011 Issue

Could Reselling Used Books Become Illegal?

Autodeskcase

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>Auction Pierre Bergé & associés in association with Sotheby’s: Important Books and Manuscripts from the Library of Jean A. Bonna from the 15th to the 20th Century. Sale on April 26, 2017. Exhibition in London March 28-30</b>
    <b>Pierre Bergé & Associés, Apr. 26:</b> Galileo, <i>Discorsi e Dimostrazioni matematiche.</i> Leyde, Elzevier, 1638. Original edition: only known copy of the first state. €700,000 – 900,000
    <b>Pierre Bergé & Associés, Apr. 26:</b> Fables illustrated by Benjamin Rabier. Paris, Tallandier, without date [ca. 1910]. Superb binding doubled in vellum decorated with painted and mosaic decors by André Mare illustrating four fables. €10,000 – 15,000
    <b>Pierre Bergé & Associés, Apr. 26:</b> Gustave Flaubert, draft for the preface of the <i>Memoir for the defense of Madame Bovary</i>, 15-30 January 1857. Exceptiona signed autograph manuscript. €40,000 – 60,000
    <b>Auction Pierre Bergé & associés in association with Sotheby’s: Important Books and Manuscripts from the Library of Jean A. Bonna from the 15th to the 20th Century. Sale on April 26, 2017. Exhibition in London March 28-30</b>
    <b>Pierre Bergé & Associés, Apr. 26:</b> Boccace, <i>The Book of Praise and the Virtue of the Noble and Cleric Ladies.</i> Verard, 1493. First edition of the French version attributed to Laurent de Premierfait. €40,000 – 60,000
    <b>Pierre Bergé & Associés, Apr. 26:</b> Exceptional set of 15 original bindings by Jean de Gonet, on rare editions illustrated by Picasso, Matisse, Miro or original editions of Bataille or Radiguet.
  • <b>Swann Auction Galleries Mar. 30: Printed & Manuscript African Americana</b>
    <b>Swann Auction Galleries Mar. 30:</b> Malcolm X, typed manuscripts for the <i>LA Herald Dispatch</i> column "God's Angry Men," 1957.<br>$200,000 to $300,000.
    <b>Swann Auction Galleries Mar. 30:</b> Frederick Douglass, Autograph Letter Signed to George Alfred Townsend, Washington, 1880.<br>$40,000 to $60,000.
    <b>Swann Auction Galleries Mar. 30:</b> Carte-de-visite album featuring a previously unrecorded image of Harriet Tubman, 1860s.<br>$20,000 to $30,000.
    <b>Swann Auction Galleries Mar. 30: Printed & Manuscript African Americana</b>
    <b>Swann Auction Galleries Mar. 30:</b> Collection of documents from the Montgomery Improvement Association, Alabama, 1955-63. $20,000 to $30,000.
    <b>Swann Auction Galleries Mar. 30:</b> Martin Luther King, Jr., working draft of the "Letter from Birmingham Jail," Alabama, 1963. $10,000 to $15,000.
    <b>Swann Auction Galleries Mar. 30:</b> <i>Benjamin Bannaker's Almanac</i> for 1795, Baltimore. $30,000 to $40,000.
    <b>Swann Auction Galleries Mar. 30: Printed & Manuscript African Americana</b>
    <b>Swann Auction Galleries Mar. 30:</b> Collection of 41 letters addressed to Rebecca Primus, 1854-72.<br>$20,000 to $30,000.
    <b>Swann Auction Galleries Mar. 30:</b> Abby Fisher, <i>What Mrs. Fisher Knows About Old Southern Cooking</i>, first edition, San Francisco, 1881.<br>$10,000 to $15,000.
    <b>Swann Auction Galleries Mar. 30:</b> Victor H. Green, <i>The Negro Motorist Green-Book for 1941</i>, New York, 1940. $8,000 to $12,000.
    <b>Swann Auction Galleries Mar. 30:</b> Toni Morrison, <i>The Bluest Eye, </i>reviewer's copy, New York, 1971. $4,000 to $6,000.
  • <b>Doyle, Apr. 26:</b> THE PAPERS OF BREVET MAJOR GENERAL JOHN GROSS BARNARD (1815-1882), Chief Engineer of the Army of the Potomac. Estimate: $75,000-100,000
    <b>Doyle, Apr. 26:</b> ALVIN LANGDON COBURN. London. With 20 photogravures by Coburn and text by Hilaire Belloc, London and New York: 1909. First edition. Est: $4,000-6,000
    <b>Doyle, Apr. 26:</b> WILLIAM FADEN, A Plan of New York Island, with part of Long Island, Staten Island & East New Jersey. London: 1776. Estimate: $5,000-8,000
    <b>Doyle, Apr. 26:</b> MAX BEERBOHM, Lord Curzon delivering an oration. Original drawing with collage. London, 1912. Est: $2,000-3,000
    <b>Doyle, Apr. 26:</b> AMERICAN REVOLUTION, Recueil des Loix Constitutives des Colonies Angloises. A Philadelphie, et se vend a Paris: Cellot & Jombert, 1778. First collected edition in French. Estimate: $500-800
    <b>Doyle, Apr. 26:</b> WILLIAM TECUMSEH SHERMAN, Confederate General Joseph Johnston's copy of Sherman's General Orders No. 65 announcing the final agreement of Surrender, 27 April 1865. Est: $4,000-6,000
    <b>Doyle, Apr. 26:</b> JOHN KEATS, Lamia, Isabella, the Eve of Saint Agnes and Other Poems. London: Taylor and Hessey, 1820. First edition of Keats’s third book.. Estimate: $5,000-7,000
    <b>Doyle, Apr. 26:</b> M. T. Cicero's Cato Major, or his discourse of Old-age: With Explanatory Notes. Philadelphia: Benjamin Franklin, 1744. Est: $5,000-8,000
    <b>Doyle, Apr. 26:</b> WINSTON S CHURCHILL, History of the English Speaking Peoples. London: Cassell, 1956-58. First editions. Est: $1,500-2,500
  • <b>Forum Auctions: Fine Books and Works on Paper. March 30, 2017</b>
    <b>Forum Auctions Mar. 30:</b> Potter (Beatrix). The Tale of Peter Rabbit, first edition, first issue, [1901]. Part of an extensive, private Beatrix Potter collection. £15,000 - 20,000
    <b>Forum Auctions Mar. 30:</b> Dodgson (Charles Lutwidge). The Hunting of the Snark, first edition, with original printed dust-jacket, 1876.<br>£7,000 - 9,000
    <b>Forum Auctions Mar. 30:</b> Buckland Wright (John). Pervigilium Veneris: The Vigil of Venus, number 1 of 100 copies (Christopher Sandford's copy), Golden Cockerel Press, 1939.<br>£2,000 - 3,000
    <b>Forum Auctions: Fine Books and Works on Paper. March 30, 2017</b>
    <b>Forum Auctions Mar. 30:</b> Kelmscott Press. Keats (John). The Poems, one of 300, orig. vellum, 8vo, Kelmscott Press, 1894. £1,800 - 2,200
    <b>Forum Auctions Mar. 30:</b> Greenhill (Elizabeth).- Morison (Stanley) and Kenneth Day. The Typographic Book, 1450-1935, bound in dark green goatskin by Elizabeth Greenhill, 1963. £6,000 - 8,000
    <b>Forum Auctions Mar. 30:</b> Fitzgerald (F. Scott). The Great Gatsby, first edition, first state dust-jacket, New York, 1925. £25,000 - 35,000
    <b>Forum Auctions: Fine Books and Works on Paper. March 30, 2017</b>
    <b>Forum Auctions Mar. 30:</b> Dionysius, <i>Halicarnassensis</i>. Antiquitates Romanae, Editio princeps, Treviso, Bernardinus Celerius, 24 or 25 February, 1480. £4,000 - 6,000
    <b>Forum Auctions Mar. 30:</b> Canon Law. [Laurentius Puldericus. Breviarum decreti], manuscript in Latin, on paper, [?Germany], [c. 1450].<br>£5,000 - 7,000
    <b>Forum Auctions Mar. 30:</b> Swimming. Percey (William) The Compleat Swimmer: or, the Art of Swimming, first and only edition, by J.C. for Henry Fletcher, 1658. £5,000 - 7,000
    <b>Forum Auctions: Fine Books and Works on Paper. March 30, 2017</b>
    <b>Forum Auctions Mar. 30:</b> Binding with silverwork by Anthony Nelme. The Holy Bible, containing the Old Testament and the New: : newly translated out of the original tongues, Oxford, John Baskett, 1716. £10,000 - 15,000
    <b>Forum Auctions Mar. 30:</b> George IV's copy. Nash (John, architect). The Royal Pavilion at Brighton, one of 10 copies, 1826. £8,000 - 10,000
    <b>Forum Auctions Mar. 30:</b> Blake (William, 1757-1827). "With Dreams upon my bed thou scarest me & affrightest me with Visions", 1825. £700 - 1,000

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