Textbook Kickbacks and the First Sale Doctrine

Today’s Wall Street Journal reports another infuriating example of universities betraying their key role in the dissemination of knowledge and becoming just another greedy content provider. (The converse of this, I guess…)

Apparently some universities now cut deals with publishers to sponsor “custom” versions of textbooks and then require their students to purchase those special editions. I certainly don’t see anything wrong with teachers assembling custom coursepacks of materials for their classes (sometimes it can even save students’ money if it replaces a costly textbook). But this is something else entirely — the books may not be significantly different from the standard edition and the school gets a kickback (er, I mean “royalty”) from the publisher for each book sold. The Journal opens the article with an especially offensive example (because the Journal has not yet fulfilled earlier hopes that it would make articles permanently available online, I will quote this key passage for you — it’s fair use after all!):

The University of Alabama, for instance, requires freshman composition students at its main campus to buy a $59.35 writing textbook titled “A Writer’s Reference,” by Diana Hacker.

The spiral-bound book is nearly identical to the same “A Writer’s Reference” that goes for $30 in the used-book market and costs about $54 new. The only difference in the Alabama version: a 32-page section describing the school’s writing program — which is available for free on the university’s Web site. This version also has the University of Alabama’s name printed across the top of the front cover, and a notice on the back that reads: “This book may not be bought or sold used.” …

The publisher of the Alabama book — Bedford/St. Martin’s, based in Boston — pays the Tuscaloosa school’s English department a $3 royalty on each of the 4,000 copies sold each year. And though the prohibition on selling the book used can’t be legally enforced, the college bookstore won’t buy the books back, making it more difficult for students to find used copies.

Incredible! Universities conspire to inflate students’ book bills, take a cut for themselves, and help publishers strangle the used-book market (which of course has flourished on the internet) — all without disclosing their role in it. It’s especially offensive for a writing program, of all things, to participate in something so contrary to its mission.

The Alabama program has made $20,000 this way. Believe me, I understand finances in higher education are tight. But this is not an acceptable way to earn extra cash. As the article suggests but does not fully explain, copyright law’s first sale doctrine makes the prohibition on resale entirely unenforceable. For one thing, by making the book less desirable for resale at other schools and adding that bogus legal-sounding notice, the University is aiding and abetting an extralegal attempt to expand the scope of the publisher’s IP rights. Heaven help us if this practice becomes entrenched and the century-old first sale doctrine is threatened once more.

The Alabama professor who ran the writing program that engaged in this shameful behavior told the Journal she has rejected other offers for “custom” books because “I feel bad enough getting $3.”

I’d say: not quite bad enough, Professor.

5 Responses to “Textbook Kickbacks and the First Sale Doctrine”

  1. I still have the Bedford handbook for writers that I was required to purchase in 1996, during my freshman year of college. I’m the latest edition is still a good resource for the first year college student. However, use of English language, at least in academics, has not changed enough to warrant such a high price tag. This is the most blatant use of the college book monopoly scam that I have heard of to date.

  2. With all due respect to the author of this article, I have to strongly disagree with the David and Goliath picture being painted here. I used to work for Bedford/St. Martin’s, and I was paid $30,000 a year as an associate . Assistants there make $27,000. bedford/St. Martin’s is a company that publishes educational materials to help writers. Most editors there are writers, and i you want to encourage writers, isn’t it logical to conclude that you would eventually want to create an environment in which they have opportunities to profit off their skills? If books are going to be so cheap, how will writers ever make any money? Why not attack the Paris Review for charing $11 for their magazine, or Harper’s for charging $5. People make so many assumptions about textbook publishers being these big evil giants, but they’re not.

  3. After reading over my comment, I realize that it is riddled with punctuation and spelling errors. My apologies! And here I am trying to represent myself as an editor. My opinion still stands I hope. 🙂

    (see, this is why people need grammar books!)

  4. Kathleen–having worked for publishers on a freelance basis, and knowing a number of well-selling authors of writing handbooks, I can assure you that precious little of that $59 is going to the author.

    Furthermore, in this situation, whoever profits is not doing so because of the author’s skills. They are profiting by establishing a monopoly. The students have no choice about the product. I have taught with Hacker’s book, and it’s fine, but so are many cheaper books, and certainly any used volume of it is just as good.

    That the university is taking a cut from this scam is appalling, but serves to highlight the dreadful funding situation for most writing programs at American universities–and the generally dismal funding situation for public education in general. That the university’s legal department sanctioned the “this book may not be bought or sold used” nonsense really takes the cake.

  5. […] faculty do not come out unscathed in this discussion either, as this post about the practice of professors commissioning “custom” textbooks and receiving “royalties,” which William McGeveran of the University of Minnesota Law […]