• <center><b>Arader Galleries<br>Fall 2019 Auction<br>September 28, 2019</b>
    <b>Arader Galleries, Sep. 28:</b> AUDUBON, John James. Snowy Owl, Plate 121. Aquatint Engraving with original hand color. London: Havell Jr., 1827-1838 from <i>Birds of America.</i> $225,000 to $300,000.
    <b>Arader Galleries, Sep. 28:</b> JEFFERYS, Thomas. <i>The American Atlas...</i> London: Sayer and Bennett, 1776. $65,000 to $90,000.
    <b>Arader Galleries, Sep. 28:</b> RACKHAM, Arthur. Original Illustrations for <i>Jack and the Beanstalk.</i> Pen and ink with watercolor on paper. C. 1913. $60,000 to $80,000.
    <b>Arader Galleries, Sep. 28:</b> AUDUBON, John James. Ruffed Grous, Plate 41. Aquatint Engraving with original hand color. London: Havell Jr., 1827-1838 from <i>Birds of America.</i> $50,000 to $70,000.
    <b>Arader Galleries, Sep. 28:</b> ROESSLER, A. R. Latest Map of the State of Texas. Lithograph with original hand color. New York: Mittendorfer, 1874. $50,000 to $65,000.
    <center><b>Arader Galleries<br>Fall 2019 Auction<br>September 28, 2019</b>
    <b>Arader Galleries, Sep. 28:</b> AUDUBON, John James. American Bison or Buffalo (Male), Plate 56. Lithograph with original hand color. New York, 1845-1848 from <i>Viviparous Quadrupeds of North America.</i> $18,000 to $25,000.
    <b>Arader Galleries, Sep. 28:</b> HOOKER, Sir William Jackson & FITCH, Walter Hood. Victoria Regia. Lithograph with original hand color. London: Bradbury & Evans, 1851. $20,000 to $30,000.
    <b>Arader Galleries, Sep. 28:</b> AUDUBON, John James. Pin Tailed Duck, Plate 227. Aquatint Engraving with original hand color. London: Havell Jr., 1827-1838 from <i>Birds of America.</i> $15,000 to $20,000.
    <b>Arader Galleries, Sep. 28:</b> LEWIS, Meriwether and CLARK, William. <i>Travels to the Source of the Missouri River and Across the American Continent...</i> London, 1814. $7,000 to $10,000.
    <b>Arader Galleries, Sep. 28:</b> AUDUBON, John James. American Black or Silver Fox, Plate 116. Lithograph with original hand color. New York, 1845-1848 from <i>Viviparous Quadrupeds of North America.</i> $18,000 to $25,000.
  • <b>Bonhams, Sep. 17:</b> EARLY AVIATION PHOTOGRAPHY ARCHIVE. Chronicling 20th century aviation from the earliest Wright Brothers images through commercial and military applications. $50,000 to $70,000.
    <b>Bonhams, Sep. 17:</b> SPUTNIK-1 EMC/EMI LAB MODEL, 1957. Full scale vintage test model of the Sputnik-1 satellite, Moscow, [February, 1957]. $400,000 to $600,000.
    <b>Bonhams, Sep. 17:</b> FIRST TELEPHONE CALL TO THE MOON. Partial transcription signed by Apollo 11 astronauts and President Nixon. $20,000 to $30,000.
    <b>Bonhams, Sep. 17:</b> Apollo 11 Beta cloth crew emblem, SIGNED BY THE ENTIRE APOLLO 11 CREW. $8,000 to $10,000.
    <b>Bonhams, Sep. 17:</b> GEMINI 1/8 SCALE MODEL. Rarely seen large-scale contractor's model. $3,000 to $5,000
    <b>Bonhams, Oct. 23:</b> SMITH, CHRISTOPHER WEBB. 1793-1871. <i>Indian Ornithology.</i> [Patna, India]: 1828. $50,000 to $80,000.
    <b>Bonhams, Oct. 23:</b> DUPRÉ, LOUIS. 1789-1837. <i>Voyage à Athènes et à Constantinople, ou Collection de portraits, vues et costumes grecs et ottomans.</i> Paris: Dondey-Dupré, 1825. $60,000 to $90,000.
    <b>Bonhams, Oct. 23:</b> ADAMS, JOHN. Autograph Letter Signed ("J Adams"), [to Dr. Perkins?] while recovering from his small pox inoculation, [late-April, 1764]. $30,000 to $50,000.
    <b>Bonhams, Oct. 23:</b> AUSTEN, JANE. Autograph Letter Signed ("J. Austen"), to her sister Cassandra, 4 pp, "Thursday – after dinner," [September 16, 1813,] Henrietta St. $80,000 to $120,000.
    <b>Bonhams, Oct. 23:</b> AUDUBON, JOHN JAMES. 1785-1851. <i>The Birds of America, from Drawings Made in the United States and Their Territories.</i> New York & Philadelphia: J.J. Audubon & J.B. Chevalier, 1840-1844. $20,000 to $30,000.
    <b>Bonhams, Oct. 23:</b> DODWELL, EDWARD. 1767-1832. <i>Views in Greece.</i> London: Rodwell and Martin, 1821. $20,000 to $30,000.
    <b>Bonhams, Oct. 23:</b> JAMES, JESSE. Autograph Letter Signed ("Jesse W. James"), to Mr. Flood demanding Flood retract spurious accusations, 3 pp, June 5, 1875. $200,000 to $300,000.
  • <center><b>Chiswick Auctions<br>Books & Works on Paper<br>September 25, 2019</b>
    <b>Chiswick Auctions, Sep. 25:</b> Rowling (J.K.) <i>Harry Potter and the Philosopher's Stone,</i> FIRST EDITION, first issue, 8vo, 1997. £15,000 to £20,000
    <b>Chiswick Auctions, Sep. 25:</b> Bible, Italian.- Malermi Bible, woodcut illustrations, folio, Lazaro de Soardi & Bernardino Benali, Venice,1517. £8,000 to £12,000
    <b>Chiswick Auctions, Sep. 25:</b> Germany.- Homann (Johann Baptist). <i>Atlas von Deutschland,</i> engraved half title, hand coloured, 87 double page engraved maps, [folio, Erben, Nuremberg, 1753]. £8,000 to £10,000
    <center><b>Chiswick Auctions<br>Books & Works on Paper<br>September 25, 2019</b>
    <b>Chiswick Auctions, Sep. 25:</b> [Mirk (John)].- <i>Liber festivalis et Quatuor sermons</i> [bound with], [Le Roy (Pierre)] <i>A Pleasant Satyre or Poesie,</i> first edition in English, Widdow Orwin for Thomas Man, 1595, 8vo. £1,500 to £2,000
    <b>Chiswick Auctions, Sep. 25:</b> Antoninus Florentinus (Saint Archbishop of Florence). <i>Confessionale: Defecerunt…,</i> 8vo, Pietro Quarengi, Venice, 15 February 1499. £1,000 to £1,500
    <b>Chiswick Auctions, Sep. 25:</b> Jesuit Letters.- [Froes (Father Luigi) & et al.)] Avvisi del Giapone de gli anni 1582, 1583, 1584…, 1586 [bound with] Avvisi della Cina et Giapone…, FIRST EDITIONS, Rome. £1,000 to £1,500
    <center><b>Chiswick Auctions<br>Books & Works on Paper<br>September 25, 2019</b>
    <b>Chiswick Auctions, Sep. 25:</b> Plutarch & Probus (Aemilius). <i>Plutarchi Cheronei et Aemilii Probi Illustrium,</i> folio, Nicolas de Pratis for Jean-Petit, Paris, 1521. £1,000 to £1,500
    <b>Chiswick Auctions, Sep. 25:</b> Bible.- English. <i>The Byble in Englyshe of the Largest and Greatest volume,</i> elaborate woodcut border, text vignettes, folio, 1541. £1,000 to £1,500
    <b>Chiswick Auctions, Sep. 25:</b> Fore-edge Painting.- Lord George Byron, The Giaour, a Fragment of a Turkish Tale, bound with 10 other titles, 4 plates marked 'Proof.', 1813. £800 to £1,200
    <center><b>Chiswick Auctions<br>Books & Works on Paper<br>September 25, 2019</b>
    <b>Chiswick Auctions, Sep. 25:</b> Manson (John). Twelve by Sixteen Papers of John Mason, a collection of 50 sheets of paper, some watermarked, 12 x 16”, c.1978. £800 to £1,200
    <b>Chiswick Auctions, Sep. 25:</b> Fleming (Ian). <i>Dr. No,</i> FIRST EDITION, original boards, dust-jacket, 8vo, 1958. £700 to £900
    <b>Chiswick Auctions, Sep. 25:</b> Eliot (T.S.) <i>Four Quartets,</i> NUMBER 121 of 290 COPIES, signed by author, 1960. £400 to £600

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>Forum Auctions: Fine Books, Manuscripts and Works on Paper. September 26, 2019</b>
    <b>Forum Auctions, Sep. 26:</b> Joyce (James). <i>Dubliners,</i> first edition, signed presentation inscription from the author, 1914. £100,000 to £150,000
    <b>Forum Auctions, Sep. 26:</b> The Beatles.- Baker (Geoffrey.) 3 Autograph Letters and 1 Autograph Card signed to Ann Gosnell, addtionally sgn’d by George Harrison, John Lennon, Cynthia Lennon and others, 1968. £5,000 to £7,000
    <b>Forum Auctions, Sep. 26:</b> Pilgrim Press.- Dod (John). <i>A plaine and familiar exposition of the tenne commandements ...,</i> [Leiden], [William Brewster], 1617. £15,000 to £20,000
    <b>Forum Auctions: Fine Books, Manuscripts and Works on Paper. September 26, 2019</b>
    <b>Forum Auctions, Sep. 26:</b> Automaton Chess Player & Mechanical Illusion.- Reynell (H., printer). “The Famous Chess-Player, No.14, St.James's-Street, next Brooks's,” broadside advertisement for "The famous Automaton", [1784]. £2,000 to £3,000
    <b>Forum Auctions, Sep. 26:</b> Clemens (Samuel Langhorne). <i>Life on the Mississippi,</i> first English edition, signed presentation inscription from the author, 1883. £8,000 to £12,000
    <b>Forum Auctions, Sep. 26:</b> Arctic Sledge Flag.- Fulford (Reginald Baldwin). Sledge flag... HMS Discovery, 1875. £4,000 to £6,000
    <b>Forum Auctions: Fine Books, Manuscripts and Works on Paper. September 26, 2019</b>
    <b>Forum Auctions, Sep. 26:</b> Rowling (J.K.) <i>Harry Potter and the Philosopher's Stone,</i> first edition, first printing, 1997. £20,000 to £30,000
    <b>Forum Auctions, Sep. 26:</b> Piranesi (Giovanni Battista). <i>Le Antichità Romane,</i> 4 vol., 1756. £20,000 to £30,000
    <b>Forum Auctions, Sep. 26:</b> Canaletto (Giovanni Antonio Canal, called). <i>Urbis Venetiarum Prospectus Celebriores,</i> 3 parts in 1, Richard Ford's copy, Venice, Giovanni Battista Pasquali, 1751. £10,000 to £15,000
    <b>Forum Auctions: Fine Books, Manuscripts and Works on Paper. September 26, 2019</b>
    <b>Forum Auctions, Sep. 26:</b> Atlases.- Speed (John). <i>A Prospect of the Most Famous Parts of the World,</i> bound with <i>The Theatre of the Empire of Great Britaine,</i> 1631-27. £12,000 to £18,000
    <b>Forum Auctions, Sep. 26:</b> Anatomical illustration.- Aselli (Gaspare). <i>De lactibus sive lacteis venis... dissertatio,</i> first edition, Milan, Giovanni Battista Bidelli, 1627. £20,000 to £30,000
  • <b>Swann Auction Galleries Illustration Art:</b> Eric Carle, <i>The Very Hungry Caterpillar,</i> hand-painted collage. Sold for a record $20,000.
    <b>Swann Auction Galleries Illustration Art:</b> Charles Addams, <i>Couple passing a giant bird house,</i> watercolor cartoon for <i>The New Yorker,</i> 1948. Sold for $16,250.
    <b>Swann Auction Galleries Illustration Art:</b> Miriam Troop, <i>Rain on Laundry Day,</i> oil on canvas, cover for <i>The Saturday Evening Post,</i> 1940. Sold for $40,000.
    <b>Swann Auction Galleries Illustration Art:</b> Rockwell Kent, <i>To All Fascists,</i> ink broadside for The League of American Writers, circa 1937. Sold for $6,500.
    <b>Swann Auction Galleries Illustration Art:</b> Jo Mielziner, <i>Pet Shop Drop,</i> backdrop design for <i>Pal Joey</i> on Broadway, 1940. Sold for a record $55,000.
    <b>Swann Auction Galleries Illustration Art:</b> Lee Brown Coye, acrylic cover illustration for the 25th anniversary of <i>Weird Tales,</i> 1944. Sold for $18,750.
    <b>Swann Auction Galleries Illustration Art:</b> Virgil Finlay, <i>The Outsider & Others,</i> pen & ink dust jacket illustration for H.P. Lovecraft's book, 1939. Sold for $5,500.
    <b>Swann Auction Galleries Illustration Art:</b> Al Hirschfeld, <i>Paul Robeson as Othello,</i> illustration for <i>The New York Times,</i> 1942. Sold for $68,750
    <b>Swann Auction Galleries Illustration Art:</b> Frederic Remington, pen & ink illustration for <i>A Scout with the Buffalo Soldiers</i> in <i>The Century</i> magazine, 1889. Sold for $17,500.

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