• <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 7: John Blackbridge. <i>The Complete Poker Player.</i> New York, 1875. First Edition. $1,500 to $2,500.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 14: Garrett Brown. <i>How to Beat the Game.</i> New York, 1903. $100 to $200.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 22: Anthony Comstock. <i>Frauds Exposed.</i> New York, 1880. $300 to $500.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 35: S.W. Erdnase. <i>The Expert at the Card Table.</i> Chicago: Author, 1902. First edition. $6,000 to $9,000.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 41: [Gerritt Evans] “A Retired Professional,” pseudo. <i>How Gamblers Win.</i> New York, ca. 1870s. $250 to $350.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 54: Jonathan Harrington Green. <i>An Exposure of the Arts and Miseries of Gambling.</i> Cincinnati, 1843. First edition. $2,000 to $3,000.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 277: Phil Farley. <i>Criminals Of America Illustrated.</i> New York, 1876. $50 to $100.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 228: <i>The English Rogue: Described in the Life of Meriton Latroon, a Witty Extravagant: Comprising the Most Eminent Cheats of Both Sexes.</i> London, 1666; 1671; 1680. $3,000 to $5,000.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 219: Abraham De Moivre. <i>The Doctrine of Chances: or, a Method of Calculating the Probabilities of Events in Play.</i> London, 1718. First edition. $3,000 to $5,000.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 95: Barabbas Whitefeather, pseudo. <i>The Handbook of Swindling.</i> London, 1839. Presentation copy, inscribed. $900 to $1,300.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 134: <i>Poker Chips: A Monthly Magazine Devoted to Stories of the Great American Game.</i> New York, 1896. Five issues. $1,500 to $2,500.
    <b>Potter & Potter Auctions, Mar 30:</b><br>Lot 87: Harry Houdini. <i>The Right Way to Do Wrong.</i> Boston, 1906. $150 to $250.
  • <b>Swann Auction Galleries, Mar 28:</b> <i>The Negro Travelers' Green Book,</i> edited by Victor H. Green, New York, 1958. $2,500 to $3,500.
    <b>Swann Auction Galleries, Mar 28:</b> Phillis Wheatley, <i>Poems on Various Subjects, Religious & Moral,</i> London, 1773. $15,000 to $25,000.
    <b>Swann Auction Galleries, Mar 28:</b> David Ruggles, <i>The Mirror of Liberty,</i> first issue of the first magazine edited by an African American, New York, 1838. $8,000 to $12,000.
    <b>Swann Auction Galleries, Mar 28:</b> Lorraine Hansberry, <i>A Raisin in the Sun,</i> draft typescript, inscribed by the playwright, circa 1958. $3,000 to $4,000.
    <b>Swann Auction Galleries, Mar 28:</b> Pair of letterpress broadsides for Ira Aldridge’s historic first 2 performances at London’s Theatre Royal, 1833. $10,000 to $15,000.
    <b>Swann Auction Galleries, Mar 28:</b> Archive of letters to John Augustine Washington III at Mount Vernon, many of which discuss the lives of enslaved persons, 1837-61. $20,000 to $30,000.
    <b>Swann Auction Galleries, Mar 28:</b> Important archive of letters and photographs of Charles White and his spouse, Frances B. White, 1956-60. $4,000 to $6,000.
    <b>Swann Auction Galleries, Mar 28:</b> Papers of educator Sister Makinya Sibeko-Kouate, one of the leading popularizers of Kwanzaa, 1940-1975. $6,000 to $9,000.
    <b>Swann Auction Galleries, Mar 28:</b> Stock certificate of the Negro Factories Corporation, signed by Marcus Garvey, 1920. $3,000 to $4,000.
    <b>Swann Auction Galleries, Mar 28:</b> Benjamin Banneker, <i>Bannaker’s Maryland . . . Almanack and Ephemeris, for the Year of our Lord 1796,</i> Baltimore, 1795. $15,000 to $25,000.
    <b>Swann Auction Galleries, Mar 28:</b> Frederick Douglass, previously unknown carte-de-visite by Samuel M. Fassett, Washington DC, 1878. $3,000 to $4,000.
    <b>Swann Auction Galleries, Mar 28:</b> <i>First Annual Report of the New York Committee of Vigilance,</i> New York, 1837. $3,000 to $4,000.
  • <b>Koller Auctions: Books & Autographs. March 26, 2019</b>
    <b>Koller Auctions, Mar 26:</b> Jacques Gamelin. <i>Nouveau recueil d'osteologie et de myologie, dessine d'apres nature...</i> 2 parts in 1 vol., large folio, 82 copper plates. CHF 12,000 to 18,000
    <b>Koller Auctions, Mar 26:</b> Melchior Pfintzing. <i>Die geverlicheiten und einsteils geschichten des loblichen streytparen...</i> 118 woodcut engravings, first edition. CHF 30,000 to 50,000
    <b>Koller Auctions, Mar 26:</b> Book of hours. Handwritten Latin text on vellum. With 17 large miniatures, Flanders, c.1460. CHF 70,000 to 90,000
    <b>Koller Auctions, Mar 26:</b> Maria Sibylla Merian. <i> Dissertatio de generatione et metamorphosibus insectorum Surinamensium,</i> 72 copper plates, Den Haag, 1726. CHF 60,000 to 90,000
  • <b>Arenberg Auctions: Rare Books, Manuscripts, Maps, and Works on Paper. March 29 & 30, 2019</b>
    <b>Arenberg Auctions, Mar 29 & 30:</b> QUAST, Pieter Jansz. - [A Quack doctor on a market square.] €3.500 to €4.500
    <b>Arenberg Auctions, Mar 29 & 30:</b><br>"Il Callotto resuscitato. Oder Ne¸ eingerichtes Zwerchen Cabinet." €6.000 to €7.000
    <b>Arenberg Auctions, Mar 29 & 30:</b> MELLISS, Mrs. John Charles - 135 compositions of which 66 used to illustrate John Melliss' work on Saint Helena. €9.000 to €10.000
    <b>Arenberg Auctions: Rare Books, Manuscripts, Maps, and Works on Paper. March 29 & 30, 2019</b>
    <b>Arenberg Auctions, Mar 29 & 30:</b> LUCA, Ghérasim. - <i>Apostroph' apocalypse. Eaux-fortes de Wifredo Lam.</i> €3.000 to €4.000
    <b>Arenberg Auctions, Mar 29 & 30:</b> REDOUTÉ, Pierre-Joseph - <i>Les Roses. Décrites par C.A. Thory.</i> €3.000 to €4.000
    <b>Arenberg Auctions, Mar 29 & 30:</b> CORONELLI, Vincenzo - A magnificent pair of globes, terrestrial and celestial. €175.000 to €250.000
    <b>Arenberg Auctions: Rare Books, Manuscripts, Maps, and Works on Paper. March 29 & 30, 2019</b>
    <b>Arenberg Auctions, Mar 29 & 30:</b> BLAEU, Joan - <i>Le Grand Atlas, ou Cosmographie Blaviaene, en laquelle est exactement descritte la Terre, la Mer, et le Ciel.</i> €170.000 to €250.000
    <b>Arenberg Auctions, Mar 29 & 30:</b> GOULD, John - A century of birds from the Himalaya mountains. €10.000 to €12.000
    <b>Arenberg Auctions, Mar 29 & 30:</b> LEVAILLANT, François - Histoire naturelle des perroquets. €50.000 to €70.000
    <b>Arenberg Auctions: Rare Books, Manuscripts, Maps, and Works on Paper. March 29 & 30, 2019</b>
    <b>Arenberg Auctions, Mar 29 & 30:</b> MAXIMILIAN III JOSEPH - Patent of nobility. €800 to €1.000
    <b>Arenberg Auctions, Mar 29 & 30:</b> Manuale parochiale sacerdotum. €800 to €1.200
    <b>Arenberg Auctions, Mar 29 & 30:</b> LONGUS - Les amours pastorales de Daphnis et Chloé. €1.250 to €1.500

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

  • <center><b>Bonhams<br>Fine Books and Manuscripts<br>New York | June 11, 2019</b>
    <b>Bonhams, Jun 11:</b> Faulkner, William. <i>The Sound and the Fury.</i> New York: Jonathan Cape, [1929]. First edition in dust jacket. $10,000 to $15,000
    <b>Bonhams, Jun 11:</b> Trautz-Bauzonnet bindery. Shakespeare, William. Sonnets. 1901. 2 volumes. Printed on vellum and illuminated by Ross Turner. $12,000 to $18,000
    <b>Bonhams, Jun 11:</b> Thompson, Kay. <i>Eloise at Christmastime.</i> New York: Random House, [1958]. First edition. In custom binding by Asprey. $2,000 to $3,000
    <center><b>Bonhams<br>Fine Books and Manuscripts<br>New York | June 11, 2019</b>
    <b>Bonhams, Jun 11:</b> Beardsley, Aubrey. <i>The Birth, Life, and Acts of King Arthur.</i> 1893-94. 2 volumes. Contemporary painted vellum gilt by Chivers. $2,000 to $3,000
    <b>Bonhams, Jun 11:</b> Assisi, St. Francis. <i>The Canticle of Brother Sun.</i> Illuminated on vellum, for the Grolier Society. $6,000 to $9,000
    <b>Bonhams, Jun 11:</b> Taylor, Deems. <i>Walt Disney’s Fantasia.</i> New York: 1940. In custom binding by Asprey. $2,500 to $3,500
  • <b>Forum Auctions: Fine Books, Manuscripts and Works on Paper. March 28, 2019</b>
    <b>Forum Auctions, Mar 28:</b> Greco (Gioachino). <i>Primo modo del gioco de Partito…</i> Manuscript, France, 1624 or 1625. A collection of partiti, or 'chess problems' by one of the most important figures in the history of chess. £20,000 to £30,000.
    <b>Forum Auctions, Mar 28:</b> Herodotus. <i>Historiae,</i> translated into Latin by Lorenzo Valla and edited by Antonio Mancinelli. Venice, 1494. £15,000 to £20,000.
    <b>Forum Auctions, Mar 28:</b> Darwin (Charles). Autograph Letter signed to his cousin Reginald Darwin, Down, Beckenham, Kent, 27th March 1879. £12,000 to £18,000.
    <b>Forum Auctions: Fine Books, Manuscripts and Works on Paper. March 28, 2019</b>
    <b>Forum Auctions, Mar 28:</b> Nicolay (Nicolas de). <i>The Navigations, peregrinations and voyages, made into Turkie,</i> first edition in English, Imprinted at London by Thomas Dawson, 1585. £10,000 to £15,000.
    <b>Forum Auctions, Mar 28:</b> Saint-Exupéry (Antoine de). <i>The Little Prince,</i> number 66 of 525 copies signed by the author, 1943. £8,000 to £12,000.
    <b>Forum Auctions, Mar 28:</b> Catlin (George, 1796-1872). Tuch-ee, A Celebrated War Chief of the Cherokees, watercolour, [circa 1834]. £6,000 to £8,000.
    <b>Forum Auctions: Fine Books, Manuscripts and Works on Paper. March 28, 2019</b>
    <b>Forum Auctions, Mar 28:</b> Genetics.- A collection of c.300 pamphlets on genetics comprising many of the major contributions from the first half of the 20th century. £5,000 to £7,000.
    <b>Forum Auctions, Mar 28:</b> India.- Rajasthan.- Kota School (probably late 18th c.). Elephant in a landscape with chains around his feet, brush and black ink with opaque pigments. £5,000 to £7,000.
    <b>Forum Auctions, Mar 28:</b> Commelin (Caspar). <i>Horti medici Amstelaedamensis plantae rariores et exoticae,</i> first edition, 48 finely hand-coloured engraved plates, Leiden, F.Haringh, 1706. £4,000 to £6,000.
    <b>Forum Auctions: Fine Books, Manuscripts and Works on Paper. March 28, 2019</b>
    <b>Forum Auctions, Mar 28:</b> Plague-water and cookery & medical recipes.- Jackson (Mrs Sarah). Medical and cookery recipes, manuscript in several hands, title and 134pp., 1688-1755. £4,000 to £6,000.
    <b>Forum Auctions, Mar 28:</b> Vernet (<i>After</i> Joseph, 1714-1789). <i>[Vues des ports de France],</i> sixteen plates (of 18), etchings and engravings by Charles Nicolas Cochin fils and Jacques Philippe Le Bas, [c.1760-1780]. £4,000 to £6,000.
    <b>Forum Auctions, Mar 28:</b> Detmold (Edward Julius, 1883-1957). Parrots and Butterflies, watercolour. £2,500 to £3,500.

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