Aspen Doesn’t Want You to Own Your Own Casebooks

WoltersKluwer’s Aspen imprint is a leading publisher of law school casebooks. Over the years, it’s built a reputation for high editorial and design standards. Some of its casebooks, like Property, by the late Jesse Dukeminier et al., are perennially popular. I like to tell new Property professors that no one ever got fired for assigning Dukeminier.

Unfortunately, Aspen has chosen to use Dukeminier’s Property in launching a disturbing new program: the “Connected Casebook. The official website isn’t live yet, but law professor Josh Blackman blogged about an email he received from Aspen describing the program. My account follows his.

In brief, students, will be required to “buy” a Connected Casebook, which consists of two pieces. First, there is “lifetime access” to a digital version of the casebook, together with various supplementary materials. Second, there is a bound physical version of the casebook, which students can highlight and mark up freely, “but which must be returned to us at the conclusion of the class.”

The obvious goal is to dry up the used book market by draining the supply of used copies. But as Josh points out, it seems unlikely that every student will return the physical book. Rather, reading between the lines, Aspen may argue that the physical book is “licensed” rather than “sold” under the reasoning of cases like Vernor v. Autodesk. The result would be that first sale (the right of the owner of a book, or a DVD, or any other copy of a copyrighted work to resell it freely) would never attach, since the students wouldn’t be “owners” of their physical copies. If Stan Second-Year sells his copy of the new Dukeminier to Fran First-Year, he’d be a copyright infringer in the eyes of Aspen. So too might be or Barnes and Noble, if they participated in the transaction. Just to make sure that students know they’re only borrowing Aspen’s books and “agree” to those terms, it appears, students will have to purchase Connected Casebook access through Aspen’s website or a participating campus bookstore.

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.

(Disclosure: I am the author of a casebook sold as a DRM-free pay-what-you-want download that competes with several Aspen titles. None of them, to my knowledge, is currently part of the Connected Casebook program.)