• <b>Swann Auction Galleries Dec 5:<br>Maps & Atlases, Natural History & Color Plate Books</b>
    <b>Swann Auction Galleries Dec 5:</b><br>John Norman, <i>The American Pilot</i>, complete copy with 11 folding charts, Boston, 1810. $80,000 to $120,000.
    <b>Swann Auction Galleries Dec 5:</b><br>John Smith, <i>New England</i>, London, 1616. $20,000 to $30,000.
    <b>Swann Auction Galleries Dec 5:</b><br>Plancius Petrus, <i>Orbis Terrarum Typus de Integro Multis in Locis Emendatus</i>, Amsterdam, 1594. $10,000 to $15,000.
    <b>Swann Auction Galleries Dec 5:<br>Maps & Atlases, Natural History & Color Plate Books</b>
    <b>Swann Auction Galleries Dec 5:</b><br>Martin Waldseemüller, <i>Tabula Terre Nove</i>, woodcut, Strasbourg, 1513. $30,000 to $40,000.
    <b>Swann Auction Galleries Dec 5:</b><br>Forlani & Zaltieri, <i>Il Disegno del Discoperto della Noua Franza</i>, Venice, 1566. $30,000 to $50,000.
    <b>Swann Auction Galleries Dec 5:</b><br>Richard Hakluyt, <i>Novus Orbis</i>, first appearance of "Virginia" on a printed map, Paris, 1587. $40,000 to $60,000.
    <b>Swann Auction Galleries Dec 5:<br>Maps & Atlases, Natural History & Color Plate Books</b>
    <b>Swann Auction Galleries Dec 5:</b><br>Pieter van den Keere, <i>Nova Totius Terrarum Orbis Geographica</i>, Amsterdam, 1608. $8,000 to $12,000.
    <b>Swann Auction Galleries Dec 5:</b><br>Abraham Ortelius, <i>Theatrum Orbis Terrarum</i>, Antwerp, 1584. $25,000 to $35,000.
    <b>Swann Auction Galleries Dec 5:</b><br>George B. Goode & Samuel A. Kilbourne, <i>Game Fishes of the United States</i>, New York, 1879. $10,000 to $15,000.
    <b>Swann Auction Galleries Dec 5:<br>Maps & Atlases, Natural History & Color Plate Books</b>
    <b>Swann Auction Galleries Dec 5:</b><br>William Faden, <i>The Province of New Jersey</i>, London, 1777. $10,000 to $15,000.
    <b>Swann Auction Galleries Dec 5:</b><br>James Gillray, <i>The Plumb-Pudding in Danger</i>, hand-colored etching, London, 1805. $8,000 to $12,000.
    <b>Swann Auction Galleries Dec 5:</b><br>Pierre Belon, <i>L'Histoire de la Nature des Oyseaux</i>, with woodcut illustrations, Paris, 1555. $8,000 to $12,000.
  • <b>Les Collections Aristophil:<br>December 20, 2017</b>
    <b>Collections Aristophil, Dec. 20:</b> SAINT-EXUPERY, ANTOINE DE. Kodachrome Film (16mm) showing Antoine de Saint-Exupery and Consuelo on a boat, 1942. JOINED: Guestbook for the Boat, signed, with a drawing of the Little Prince. 15 000 to 20 000 €
    <b>Collections Aristophil, Dec. 20:</b> CANDEE, HELEN CHURCHILL. Autograph manuscript. TITANIC, 40 leaves. Original account of the most famous shipwreck, by a survivor of the ordeal. 300 000 to 400 000 €
    <b>Collections Aristophil, Dec. 20:</b> TITANIC. Collection of 7 documents relating to the shipwreck of the Titanic (14 April 1912). 20 000 to<br>30 000 €
    <b>Les Collections Aristophil:<br>December 20, 2017</b>
    <b>Collections Aristophil, Dec. 20:</b> DUPLEIX DE CADIGNAN, JEANBAPTISTE. Signed autograph manuscript. Thirty years of memoirs related to military services and important information on the American War of Independence.<br>40 000 to 50 000 €
    <b>Collections Aristophil, Dec. 20:</b> CURTIUS. Faiz et Conquestes d'Alexandre [Histoire d'Alexandre le Grand]. In French, illuminated manuscript on paper and parchment, 16 large miniatures. 300 000 to<br>500 000 €
    <b>Collections Aristophil, Dec. 20:</b> NELSON, HORATIO. Signed autograph letter, ‘Nelson & Bronte,” aboard the Amazon, 14 October 1801, addressed to Sir William Hamilton. 4 000 to 5 000 €
    <b>Les Collections Aristophil:<br>December 20, 2017</b>
    <b>Collections Aristophil, Dec. 20:</b> GIROLAMO FRANCESCO MARIA MAZZUOLI DIT LE PARMESAN. Le couple amoureux. Pen and brown ink. 80 000 to 120 000 €
    <b>Collections Aristophil, Dec. 20:</b> SADE, DONATIEN-ALPHONSE-FRANÇOIS, MARQUIS DE. Autograph manuscript. The 120 Days of Sodom, or the School of Libertinage, 1785.<br>4 000 000 to 6 000 000 €
    <b>Collections Aristophil, Dec. 20:</b> MIRÓ, JOAN. Signed autograph correspondence to Thomas and Diane Bouchard (1949-1976). 50 000 to 60 000 €
    <b>Les Collections Aristophil:<br>December 20, 2017</b>
    <b>Collections Aristophil, Dec. 20:</b> BALZAC, HONORÉ DE. Signed autograph manuscript, Ursule Mirouët, [1841]. One of only two manuscripts of novels by Balzac in private hands. 800 000 to<br>1 200 000 €
    <b>Collections Aristophil, Dec. 20:</b> LENOIR, ALEXANDRE. Essai sur l'histoire des arts en Egypte pouvant servir d'appendice au grand ouvrage de la Commission. autograph manuscript with numerous additions and corrections. 40 000 to 50 000 €
    <b>Collections Aristophil, Dec. 20:</b> SCHRÖDINGER, ERWIN. Autograph manuscript [Spring 1946, sent to Albert Einstein]. 1 500 to 2 000 €
  • <b>Bloomsbury Auctions: Books and Works on Paper, including Fine Photographs. December 14, 2017</b>
    <b>Bloomsbury, Dec. 14:</b> Rowling (J.K.). Hogwarts School of Witchcraft and Wizardry, original fine black pen and ink manuscript book by the author J.K.Rowling, with 31pp of text and illustrations. £80,000 to £120,000
    <b>Bloomsbury, Dec. 14:</b> Blaeu (Johannes). <i>Vierde Stuck der Aerdrycks-Beschryving, welck vervat Engelandt</i>, i.e. <i>Theatrum Orbis Terrarum</i>. vol 4, England & Wales. £10,500 to £12,500
    <b>Bloomsbury, Dec. 14:</b> Miró (Joan). L'Homme au Balencier, etching, aquatint and carborundum, printed in colours on Japan paper, signed in pencil lower right. £4,000 to £6,000
    <b>Bloomsbury Auctions: Books and Works on Paper, including Fine Photographs. December 14, 2017</b>
    <b>Bloomsbury, Dec. 14:</b> Steve McCurry (b.1950). Afghan Girl, 1984, pigment inkjet print, signed and numbered 48/250 in pencil on lower margin. £2,500 to £3,500
    <b>Bloomsbury, Dec. 14:</b> Keough (Pat and Rosemarie). <i>Antarctica</i>, no 228 of 950 copies, signed by the authors, many colour illustrations, original dark grey morocco. £2,800 to £3,200
    <b>Bloomsbury, Dec. 14:</b> Rowlandson (Thomas). Darby & Joan, the idyllically contended couple sit either side of a stove in a cosy domestic interior, ink and watercolour on wove paper. £1,000 to £1,500
    <b>Bloomsbury Auctions: Books and Works on Paper, including Fine Photographs. December 14, 2017</b>
    <b>Bloomsbury, Dec. 14:</b> Procktor (Patrick). Tiny blue-eyed goldfish, watercolour, 310 x 460mm., signed in blue crayon, lower right, titled and inscribed Muscat Jan 19. £1,000 to £1,500
    <b>Bloomsbury, Dec. 14:</b> Iouri Abramochkin (b.1936). Horsemen, Dagestan, 1968, Lambda print, printed later, signed, dated, editioned 1/8 and annotated in black ink verso. £800 to £1,200
    <b>Bloomsbury, Dec. 14:</b> Ravilious (Eric).- Shakespeare (William). Twelfth NIght, or, What You Will, number 79 of 275 copies , wood-engraved title. £800 to £1,200
    <b>Bloomsbury Auctions: Books and Works on Paper, including Fine Photographs. December 14, 2017</b>
    <b>Bloomsbury, Dec. 14:</b> Michelangelo.- Chastel (André). <i>The Vatican Frescoes of Michelangelo</i>, Photography by Takashi Okamura, 2 vol., one of 600 sets, colour plates. £500 to £700
    <b>Bloomsbury, Dec. 14:</b> Wyndham (John). <i>The Day of the Triffids; The Kraken Wakes; The Chrysalids;</i> together with 8 other volumes. All first editions. £400 to £600
    <b>Bloomsbury, Dec. 14:</b> Alfred Stieglitz (1864-1946). Goats Along The Seine, 1894. Photogravure, printed 1990s by Dorothy Norman, one from an edition of 40 published by Aperture. £400 to £600
  • <b>19th Century Shop:</b> Charles Darwin on sexuality and the transmission of hereditary characteristics: Autograph Letter Signed to Lawson Tait. Down, 17 January [1877].
    <b>19th Century Shop:</b> MILTON, JOHN. <i>Paradise Lost. A Poem written in ten books.</i> London: 1667. A very rare example with the contemporary binding untouched and with a 1667 title page.
    <b>19th Century Shop:</b> Hamilton secures the ratification of the Constitution: <i>The Debates and Proceedings of the Convention of the State of New-York, assembled at Poughkeespsie, on the 17th June, 1788.</i>
    <b>19th Century Shop:</b> The social contract “Man is born free, and everywhere he is in chains”: ROUSSEAU, JEAN-JACQUES. <i>Principes du Droit Politique [Du Contract Social]</i>. Amsterdam: Michel Rey, 1762
    <b>19th Century Shop:</b> “The first English textbook on geometrical land-measurement and surveying”: BENESE, RICHARD. <i>This Boke Sheweth the Maner of Measurynge All Maner of Lande…</i>

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>Sotheby’s New York: Fine Books & Manuscripts. December 11, 2017</b>
    <b>Sotheby’s NY, Dec. 11:</b> Wright, Frank Lloyd. An important collection of early letters from Wright to members of his family. 1909–1926. $60,000 to $80,000
    <b>Sotheby’s NY, Dec. 11:</b> Rand, Ayn. Ayn Rand's important first speech delivered at the Ford Hall Forum. $60,000 to $80,000
    <b>Sotheby’s NY, Dec. 11:</b> Tolkien, J.R.R. <i>The Hobbit or There and Back Again</i>. London: George Allen & Unwin Ltd., 1937. $50,000 to $70,000
    <b>Sotheby’s NY, Dec. 11:</b> [Flemish Flower Manuscript]. Lille, Spanish Netherlands: 1630. $50,000 to $60,000
    <b>Sotheby’s NY, Dec. 11:</b> García Márquez, Gabriel. Two drafts of an early short story, "Rosas Artificiales.” $40,000 to $60,000
    <b>Sotheby’s New York: History of Science and Technology. December 12, 2017</b>
    <b>Sotheby’s NY, Dec. 12:</b> Enigma M4. A Fully Operational Four-Rotor ("M4") Kriegsmarine Enigma Cipher Machine, 1944. $350,000 To $500,000
    <b>Sotheby’s NY, Dec. 12:</b> The "Polio" Nobel Prize. The 1954 Nobel Prize Medal for Physiology or Medicine Awarded to Frederick C. Robbins. $200,000 to $300,000
    <b>Sotheby’s NY, Dec. 12:</b> ENIGMA I. A Fully Operational Early Three-Rotor Enigma I Cipher Machine. Berlin, Heimsoeth Und Rinke, Early 1930s. $120,000 to $180,000
    <b>Sotheby’s NY, Dec. 12:</b> Bonestell, Chesley. "Saturn, Viewed From Titan, One of Its Satellites." A Mid 1950's Study for the 360° Titan Panorama. 1 ½ x 20’. $100,000 to $150,000
    <b>Sotheby’s NY, Dec. 12:</b> Descartes, René. <i>Discours de la Méthode pour Bien Conduire Sa Raison, & Chercher la Verité dans les Sciences... 1637. $80,000 to $120,000
  • <b>Christie’s Online, Dec. 5 – Dec. 12:</b> <i>John the Baptist</i>. initial 'H' cut from a choirbook [Lombardy or Siena, c. 1470s]. US$6,000–9,000
    <b>Christie’s Online, Dec. 5 – Dec. 12:</b> <i>Maharaja Ranjit Singh (1780–1839) seated on a terrace with Sikh noblemen</i>. [Punjab, North India, circa 1830-40]. Estimate: US$10,000–15,000
  • <b>Bonhams: History of Science and Technology. Wednesday, December 6, 2017. New York</b>
    <b>Bonhams, Dec. 6:</b> Lot 95. Turing. <i>Systems of Logic Based on Ordinals</i>. Offprint. London, 1939. Robin Gandy's Copy. $20,000 to $30,000
    <b>Bonhams, Dec. 6:</b> Lot 98. Zernike, Fritz. The 1953 Nobel Prize for Physics: The Invention of the Phase-Contrast Microscope. $100,000 to $150,000
    <b>Bonhams, Dec. 6:</b> Lot 111. Apple 1 Computer, operational, with exceptional provenance. $400,000 to $600,000
    <b>Bonhams: Voices of the 20th Century. Wednesday, December 6, 2017. New York</b>
    <b>Bonhams, Dec. 6:</b> Lot 1074. Bruce, Lenny. An unreleased 16 mm film by "Count" Lewis DePasquale featuring Lenny Bruce. $7,000 to $10,000
    <b>Bonhams, Dec. 6:</b> Lot 1254. Hirohito. Manuscript in Japanese, "The Emperor's Monologue," transcribed by Terasaki Hidenari. $100,000 to $150,000
    <b>Bonhams, Dec. 6:</b> Lot 1095. Goldman. Emma. Large archive of correspondence, much of it to Warren Starr Van Valkenburgh. $70,000 to $100,000
    <b>Bonhams: History of Science and Technology. Wednesday, December 6, 2017. New York</b>
    <b>Bonhams, Dec. 6:</b> Lot 109. Wozniak and Jobs. The First Digital "Blue Box", Berkeley, 1972. $30,000 to $50,000
    <b>Bonhams, Dec. 6:</b> Lot 46. Newton, Isaac. <i>Philosophiae naturalis principia mathematica</i>. 1st issue. London, 1687. $300,000 to $500,000
    <b>Bonhams, Dec. 6:</b> Lot 49. Newton. Autograph Manuscript in English, a portion of a draft of Newton's study on revelation. $15,000 to $20,000
    <b>Bonhams: Voices of the 20th Century. Wednesday, December 6, 2017. New York</b>
    <b>Bonhams, Dec. 6:</b> Lot 1027. Fitzgerald, F. Scott. The Great Gatsby. 1st edition, 1st issue. Scribners, 1925. $40,000 to $60,000
    <b>Bonhams, Dec. 6:</b> Lot 1042. Hemingway., Ernest. For Whom the Bell Tolls. Presentation copy, one of 15 copies. Scribners, 1940. $25,000 to $35,000
    <b>Bonhams, Dec. 6:</b> Lot 1215. A 48-star American Flag, flown from LCT-703, sunk on Omaha Beach, December 1944. $15,000 to $20,000
  • <b>Announcing a new Books for Sale platform hosted by Biblio!</b>
    <b>List your books simultaneously on Rare Book Hub and Biblio!</b>

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