May 5, 2014

Posted in Uncategorized

Aspen Casebook Connect Textbooks Must Be Returned At End Of Class, Cannot Be Resold

Update (5/8/13): Aspen has updated their policy. Now, students now have a choice: they can buy a physical book to keep, or buy a digital version and print version, and return the latter. I’m not happy with the second option, but I’ll declare a partial victory and withdraw my petition. See more here.

Update: If you are a professor, please consider signing this petition to oppose Aspen’s policy.

I recently received a bizarre email from Aspen, the publisher of the Dukeminier/Krier/Alexander/Schill/Strahilevitz Property casebook I use. In short, the next edition of the book will be have to be returned at the end of the semester, and cannot be resold. This temporary usage comes with a permanent digital version. In effect, buying the textbook gives the student a license to use the book for a single class, as well as a digital version. And it’s the same price! Of course, students are not going to actually return the book (BarBri offers a payment to incentivize that), but the book stores will not be able to legally resell it. This will instantly dry up the reused market for casebooks.

This has shades of Amazon Kindle or iTunes. You do not actually own the title, and cannot resell it, and only use it at the discretion of the publisher.

What is bizarre, is that here, we are talking about an actual, physical book, rather than anything electronic. I suspect many (most) students will be entirely unaware of this until they attempt to resell the book. Adding to this irony is that this is a Property casebook! This would make for a fascinating case study by itself.

I was planning on switching to the new edition of Dukeminier, but I may stay with the previous edition (which is excellent!) for another year.

Here is the entire email:

Dear Professor,

Thank you for adopting Dukeminier/Krier/Alexander/Schill/Strahilevitz, Property text. We are pleased to announce that this title will be part of our new Connected Casebook program. The Connected Casebook program is intended to provide students access to a greater wealth of learning tools than offered previously, with no change in price. Under the Connected casebook program, your students will receive:

• A new, bound version of the casebook, which can be marked-up, highlighted, and kept through the length of the course, but which must be returned to us at the conclusion of the class.

• Lifetime access to CasebookConnect, a rich digital companion to the casebook, containing a full digital version of the casebook as well as selected proven learning accelerators, such as examples, explanations, and a collection of issue-spotting and hypothetical exercises.

The primary way that students will be able to purchase the Connected Casebook is through our website at www.aspenlaw.com/connectedPlease place this URL on your syllabus to notify your students of where to purchase the casebook. We are also connecting with your bookstore in the coming weeks to let them know how they can participate in the program. The ISBN for your title is 9781454837602.

 

To better support you, here are answers to some questions you may have. Please contact your sales representative with any additional questions.

 

1. Do I need to do anything different because this title is a Connected Casebook?

No, you do not need to do anything different as an instructor. Your students will have the same print casebook they have always had; they will just have additional online study resources they may choose to utilize.

 

2. Can students mark up the print books?

Yes, students can highlight or otherwise mark up the print books as much as they like. They simply need to return them at the end of the class. Students can also annotate and highlight the digital version of the book. These annotations will be available to them through the digital platform permanently.

 

3. Is the print edition of the Connected Casebook different from other print casebooks I’ve used?

No, the print casebook you and your students receive will be the same as print casebooks you have used in the past.

                       

4. Can the students sell their books back at the end of the semester?

The students will receive lifetime access to CasebookConnect, including the full digital version of their casebook, but they will need to return the print casebook to us at the end of the class.

 

5. Can my students purchase Connected Casebooks through our campus bookstore?

Your bookstore can participate in the program if they choose. We will be reaching out to your bookstore shortly to provide them with details.

We are confident you will find the new Connected Casebook version of your title to be easy to use and extremely helpful to your students as they seek to master the material in your class. If you have any questions, please contact your sales representative, or email our support team at ***. Thank you.

Update: James Grimmelman offers these thoughts:

There are serious questions about the binding legal force of the promise to return the casebook, serious questions about extending the licensed-not-sold cases to traditional books, and serious questions about the practical enforcement of these rules against thousands of individual law students and resellers. But whether Aspen intends to enforce these new terms vigorously or not, they are deeply troubling in two ways.

First, this is an obvious attempt to undermine the longstanding and firmly established first sale rights of book owners. Traditional online casebooks like West’s Interactive Casebook Series, at least, respected first sale for printed books: students retained their rights in the bound version, even when the digital companion went away at the end of the year. This new approach, by flipping the model and demanding that the physical book be returned, gives students first sale rights over neither version. Aspen promises “lifetime access” to the electronic versions, but we know from sad experience that gerbils have better life expectancy than DRM platforms.

Second, Aspen’s policy literally results in the destruction of knowledge. It seems most likely that the returned books will be pulped. (I suppose it is possible that Aspen itself could inject the returned books into the used book market, but since Aspen encourages students to mark them up freely, they aren’t going to be in good condition.) True, Amazon and B&N have been offering textbook rentals that require students to return books at the end of the semester. But those are built on first sale, and they promote the continued circulation of copies among the public: the books are rented so that they can be resold.

Casebooks are a noticeable part of the cost of a legal education. Aspen casebooks now frequently cost upwards of $200. A student who used one in each of four classes a semester for three years of law school would spend nearly $5000 on casebooks alone. Students have quite understandably responded by turning to used copies—a practice Aspen now appears to be trying to stamp out. If it succeeds, the added cost will hurt students, schools, professors, and the legal profession. I hope that Aspen will reconsider this ill-advised move.

 

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  • Disgruntled3L

    And they’re going to enforce this, how? While it may dry up resale markets on Amazon, etc., it will just push resales into the informal student-to-student market at individual law schools.

  • Matt Becker

    You say that bookstores wouldn’t be able to legally resell the books.
    Why? A contract is only binding between the parties that enter it, and
    it looks like Aspen will be contracting with the purchasers (the
    students). Perhaps Aspen will also try to get stores to agree not to
    resell the books in exchange for the right to sell their new editions, but
    even still, this separate contract would only apply to those stores
    foolish enough to trade away their rights like this. Plenty of used
    book stores, both terra firma and online, could still resell the books
    so long as they did not contract with Aspen.

  • BillStewart2012

    And are they planning to return the student’s money at the end of the class as well?
    If the students may longer use their books, they shouldn’t be using the money any more.

  • PaulAlanLevy

    Perhaps you and your colleagues should simply stop assigning that casebook.
    http://pubcit.typepad.com/clpblog/2014/05/should-aspen-publishings-casebooks-be-boycotted.html

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  • Deidre Keller

    Josh, glad to see the publicizing of this important issue.

    • http://joshblackman.com/ Josh Blackman

      Thanks for bringing it to my attention Deidre!

  • Gath Gealaich

    “Yes, students can highlight or otherwise mark up the print books as much
    as they like. They simply need to return them at the end of the class.”

    So, what are they going to do with the scribbled-over books? Put them in a warehouse?

  • Ryan Radia

    Setting aside the copyright law question about whether this new policy might bind individuals who are not parties to the initial casebook “sale” (such as resellers who unwittingly buy casebooks sold by students in breach of their contract with Aspen), what’s wrong with Aspen selling students a licensed digital copy that’s accompanied by a physical casebook on a rental basis?

    Assuming Aspen’s contract is otherwise valid under principles of contract law – assume Aspen informs students of its terms before finalizing each transaction – wouldn’t Aspen be free to charge students who fail to return their casebooks an agreed upon fee (say, $100)? As a business model, I fully understand why law professors oppose Aspen’s move, but as a legal matter, what exactly is bizarre or problematic about Aspen’s new policy?

    • FredInIT

      It’s conniving people like you as to why so many people are rather fed up with lawyers and politicians.

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  • A_Lior

    I am not a laywer, so can some explain the legal doubts about the ability of the manufacturer of a product (the textbook) to lend it to a customer for a fee instead of selling it? Nobody protests about being unable to resell their rental car.

    No professor should assign a textbook that the publisher is only willing to lend, but I don’t see how “first sale” would apply to a book that was never sold in the first place.

  • maxicchars

    This may be rather expensive for the publishers. Does the book come with a return postage prepaid slip or does the student simply wrap up the book in heavy paper, address it and then pop it in a postbox to a Freepost address? How much will it cost the publisher if the student happens to have moved to (say) Australia by the time he or she has to return it? No way is any student going to pay any postage to return a book. Might be fun to take it on holiday abroad and post it from there….

  • Robert

    I just emailed my Aspen rep and told him that if the Aspen text I have been assigning goes into the Connected program, I will be choosing a different publisher.

    I got back a non-substantive response, which referred me to the following page
    http://www.aspenlaw.com/pages/connected

    Which now seems to say that the “Connected” plan barring resale of the text will be optional.

    Perhaps Aspen / WK is beginning to understand this was not the great idea someone thought it would be.

    • Robert

      Got a second (substantive) email from the Aspen rep, specifically stating that the Connected plan is optional. Here is what I was told –

      “CC
      is optional and students aren’t locked in to buying only Casebook
      Connect. Students can purchase a print by itself if they want to. If a
      student feels
      value of CC is good for them, they can get that option. Stay tuned for
      continued updates concerning Casebook Connect always found at
      http://www.aspenlaw.com/connected

      My position is pretty simple. Text books are appallingly expensive. I will not select a textbook where students are barred from reselling their text or from purchasing a used text. I want my students to have that option. This is important to me.

      • Twinkie defense

        Tuition is appallingly expense. I wonder if you have any concerns with those student costs?

        • Robert

          Yes – I am deeply concerned about the cost of tuition. As an adjunct professor I have no practical ability to influence tuition. I can, at least, exercise some choice when it comes to textbook adoption for the classes I teach as an adjunct.

  • Mark

    I’m not sure why you’re against the revised policy. Students can buy the traditional casebook the way they always have. But now they’ll have the option to buy the Connected Casebook and tap into electronic features and supplemental aids (without buying the entire aid) in addition to having access to the hard-bound version of the casebook for the duration of the class–and pay less for these features. How is giving students the option to get more for less $$ a bad deal?

    • http://joshblackman.com/ Josh Blackman

      As I note in the linked post, I’m okay with the new policy, but I’m not crazy about it. The idea of forcing students who want a digital version to also destroy their print version seems unwise. But, because there is a choice, I withdrew my petition.

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  • Twinkie defense

    This first sale rights objection sounds like semantics – what if instead they didn’t “sell” the books at all, but only “rented” them? Would that address your complaint?

    Of course the reason the publisher is pursuing this path is to combat the “problem” of used books. Now I know used books aren’t a problem for consumers, but think about the implications to other stakeholders: authors put a lot of labor and love in these books, but don’t get a royalty for their work on any sale after the first. Publishers put a lot of money into the development of these books – paying editors, copy editors, artists, printers, etc., maintaining slim margins for their creative work. While sleazy buyers prowl around campus, offering faculty cash for their free review copies, and bookstores offer pennies on the dollar for students who sell back their books.

    I understand that we would like course materials to be cheaper, more accessible for students – hell, it is often overlooked, we might like to have TUITION be cheaper, more accessible to students. They aren’t taking on mountains of debt to buy course materials, they’re taking on mountains of debt to pay tuition, room, and board. But if you are looking for bad guys here, I think putting the outraged gaze on the creative side of the equation is misplaced.

  • Rb

    Looks like illegal price fixing to me. Basically Aspen is attempting to destroy or severely hinder the resale market. Check out 433 U.S. 36.

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  • Chuck Ditzler

    Some professors create their own casebooks. That’s what my criminal procedure professor did. Now that I’m teaching sociology and criminology, I try to assign materials that are free online, such as DOJ reports, PBS documentaries, and an OpenStax textbook. The latter is good, not great, but my students are happy that it is free and I can make up for the weaknesses in lectures, online postings, and additional materials.

    I wish that more law professors would get together to create cheap paperback (under $30) or free online casebooks, at least for the commonly taught 1L classes. Yes, the typical law school tuition these days is incredibly high, but it’s more within the power of a law professor to lessen the burden by not assigning expensive casebooks. Are the expensive casebooks so good that it is impossible for committees of law professors to compile casebooks that are even close in quality? Maybe what makes the difference in student outcomes is not the expensive casebooks but how the professor uses those cases.

    Thank you, Josh, for looking into this matter.

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