• Old World Auctions (Nov 6-20):
    Lot 51. Ortelius' Influential Map of the New World - Second Plate in Full Contemporary Color (1579) Est. $5,500 - $6,500
    Old World Auctions (Nov 6-20):
    Lot 165. Reduced-Size Edition of Jefferys/Mead Map with Revolutionary War Updates (1776) Est. $4,750 - $6,000
    Old World Auctions (Nov 6-20):
    Lot 688. Blaeu's Superb Carte-a-Figures Map of Africa (1634) Est. $3,000 - $3,750
    Old World Auctions (Nov 6-20):
    Lot 105. Striking Map of French Colonial Possessions (1720) Est. $2,750 - $3,500
    Old World Auctions (Nov 6-20):
    Lot 98. Rare First Edition of the First Published Plan of a Settlement in North America (1556) Est. $3,000 - $3,750
    Old World Auctions (Nov 6-20):
    Lot 181. Important Map of the Georgia Colony (1748) Est. $2,750 - $3,500
    Old World Auctions (Nov 6-20):
    Lot 547. Ortelius' Map of Russia with a Vignette of Ivan the Terrible in Full Contemporary Color (1579) Est. $1,400 - $1,700
    Old World Auctions (Nov 6-20):
    Lot 85. Homann's Decorative Map of Colonial America (1720) Est. $1,600 - $1,900
    Old World Auctions (Nov 6-20):
    Lot 642. Blaeu's Magnificent Carte-a-Figures Map of Asia (1634) Est. $3,000 - $3,750
    Old World Auctions (Nov 6-20):
    Lot 748. The Martyrdom of St. John in Contemporary Hand Color with Gilt Highlights (1520) Est. $1,000 - $1,300
    Old World Auctions (Nov 6-20):
    Lot 298. Scarce Early Map of Chester County (1822) Est. $2,750 - $3,500
  • Bonhams, Nov. 2-12: AUDUBON, JOHN JAMES. Red-Shouldered Hawk. London: R. Havell, Jr., 1829. $2,000 - $3,000
    Bonhams, Nov. 2-12: STEWART, WILLIAM DRUMMOND, SIR. Altowan; or, Incidents of Life and Adventure in the Rocky Mountain... New York, 1846. PRESENTATION COPY. $800 - $1,200
    Bonhams, Nov. 2-12: WILLUGHBY & RAY, JOHN. The Ornithology of Francis Willughby in three books... London, Martyn, 1678. $800 - $1,200
    Bonhams, Nov. 2-12: SUSAN B. ANTHONY. Autograph Quotation Signed, on equal rights "for men and women," Rochester, 1898. $1,000 - $1,500
    Bonhams, Nov. 2-12: FRANKLIN, BENJAMIN. Autograph Letter Signed integrally to Le Comte de Milly arranging a meeting with M. Broignard, Passy, 1778. $10,000 - $15,000
    Bonhams, Nov. 2-12: FRANKLIN, JEFFERSON, & ADAMS. Mansucript Signed by all three architects of the American ideal, requesting a Treaty of Amity and Commerce. $750,000 - $1,000,000
    Bonhams, Nov. 2-12: LINCOLN, ABRAHAM. Endorsement Signed, a pardon for a Confederate soldier, February 6, 1865. $4,000 - $6,000
    Bonhams, Nov. 2-12: NAPOLEON FORMALLY RATIFIES THE LOUISIANA PURCHASE. Document Signed ("James Monroe," "Robt. R. Livingston" and "Barbé-Marbois"). $100,000 - $200,000
    Bonhams, Nov. 2-12: JAMES MONROE ON THE DIFFICULTIES OF JAY'S TREATY. Autograph Letter Signed to Thomas Pinckney, Paris, January 17, 1795. $15,000 - $25,000
    Bonhams, Nov. 2-12: GIDEON WELLES FIRST HAND ACCOUNT OF FORT PICKENS AND FORT SUMTER ON THE EVE OF CIVIL WAR. Autograph Manuscript, 44 pp, c.1870. $4,000 - $6,000
    Bonhams, Nov. 2-12: SIGNED BY BORGES. Labyrinths: Selected Stories & Other Writings. 1962. First book publication in English. $4,000 - $6,000
    Bonhams, Nov. 2-12: LORENZO DOW TURNER'S COPY. LOCKE, ALAIN. The New Negro: an Interpretation. 1925. $1,000 - $1,500
  • Forum Auctions
    A Visual and Historical Voyage into the Ottoman World:
    The Library of a Gentleman
    14th November
    Forum, Nov. 14: Preziosi (Amedeo). Stamboul: Recollections of Eastern Life, first edition, Paris, Lemercier, 1858. £6,000 to £8,000.
    Forum, Nov. 14: Mayr (Heinrich von). Malerische Ansichten aus dem Orient. Vues Pittoresques de l'Orient, first edition in the original 10 parts, Munich, Paris & Leipzig, [1839-40]. £10,000 to £15,000.
    Forum, Nov. 14: Lewis (John Frederick). Illustrations of Constantinople, made during a Residence in that City &c. in the Years 1835-6, first edition, [1838]. £6,000 to £8,000.
    Forum, Nov. 14: Dodwell (Edward). Views in Greece, first edition, ordinary format, Rodwell and Martin, 1821. £8,000 to £12,000.
    Forum, Nov. 14: Cassas (Louis François). [Voyage Pittoresque de la Syrie, de la Phoenicie, de la Palæstube et de la Basse-Égypte], 3 vol., first edition, [Paris], [1799]. £8,000 to £12,000.
    Forum Auctions
    A Visual and Historical Voyage into the Ottoman World:
    The Library of a Gentleman
    14th November
    Forum, Nov. 14: La Chappelle (Georges). Recueil de Divers Portraits des Principales Dames de la Porte du Grand Turc, first edition, Paris, 1648. £8,000 to £12,000.
    Forum, Nov. 14: Fossati (Gaspard). Aya Sophia Constantinople as recently restored by order of H.M. the Sultan Abdul Medjid, first edition, ordinary format, 1852. £6,000 to £8,000.
    Forum, Nov. 14: Pertusier (Charles). Promenades Pittoresques dans Constantinople et sur les Rives du Bosphore, 4 vol., inc Atlas, first edition, Paris, H. Nicolle, 1815-17. £6,000 to £8,000.
    Forum, Nov. 14: Brindesi (Jean). Souvenirs de Constantinople, first edition, [Paris], [1855-60]. £4,000 to £6,000.
    Forum, Nov. 14: Le Bruyn (Cornelius). Voyage au Levant, first French edition, Delft, Henri de Kroonevelt, 1700. £3,000 to £4,000.

Rare Book Monthly

Articles - November - 2011 Issue

Could Reselling Used Books Become Illegal?

The Appeals Court came down on the side of restricting the sale of used items.

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

  • Dominic Winter Auctioneers
    Printed Books, Maps & Caricatures
    13 November 2024
    Dominic Winter, 13th Nov: The Americas. Blaeu (Willem Janszoon), Americae nova Tabula, Amsterdam circa 1635. £800-1,200
    Dominic Winter, 13th Nov: Witchcraft. Saducismus Trimphatus, by Joseph Glanvill, 2nd edition, 1688. £600-800
    Dominic Winter, 13th Nov: Gillray (James). United Irishmen in Training, 1798. £500-800
    Dominic Winter Auctioneers
    Printed Books, Maps & Caricatures
    13 November 2024
    Dominic Winter, 13th Nov: Ketham (Johannes de). Fasciculus medici[n]e …, Venice: Cesare Arrivabene, March 1522. £6,000-8,000
    Dominic Winter, 13th Nov: Bible [English]. The Byble in Englyshe of the largest and greatest volume..., 1541. £7,000-10,000
    Dominic Winter, 13th Nov: Chaucer (Geoffrey). The Workes of Geffray Chaucer newlye printed..., 1542. £2,000-3,000
    Dominic Winter Auctioneers
    Printed Books, Maps & Caricatures
    13 November 2024
    Dominic Winter, 13th Nov: Bible [English]. The Newe Testament of Our Saviour Jesu Christe..., 1566. £7,000-10,000
    Dominic Winter, 13th Nov: Hakluyt (Richard). The Principal Navigations, Voyages, Traffiques..., 1599. £4,000-6,000
    Dominic Winter, 13th Nov: Queen Anne binding. A sammelband of 15 almanacks, 1704. £1,000-1,500
    Dominic Winter Auctioneers
    Printed Books, Maps & Caricatures
    13 November 2024
    Dominic Winter, 13th Nov: Jacobite Uprising. A Grand Consultation concerning the Invasion of England..., 1745. £1,000-1,500
    Dominic Winter, 13th Nov: Holbein (Hans). Imitations of Original Drawings in the Collection of His Majesty, 1792-1800. £2,000-3,000
    Dominic Winter, 13th Nov: Wordsworth (William). Yarrow Revisited, 1st edition, presentation copy with author's corrections, 1835. £1,500-2,000
  • Sotheby's
    Fine Books, Manuscripts & More
    Available for Immediate Purchase
    Sotheby’s: J.R.R. Tolkien. The Lord of the Rings Trilogy. 11,135 USD
    Sotheby’s: Edgar Allan Poe. The Raven and Other Poems, 1845. 33,000 USD
    Sotheby’s: Leo Tolstoy, Clara Bow. War and Peace, 1886. 22,500 USD
    Sotheby’s: Sir Arthur Conan Doyle. Adventures of Sherlock Holmes, 1902. 7,500 USD
    Sotheby’s: F. Scott Fitzgerald. This Side of Paradise, The Great Gatsby, and Others, 1920-1941. 24,180 USD
  • Freeman’s | Hindman
    Fine Printed Books and Manuscripts, Including Americana
    November 14
    Freeman’s | Hindman, Nov. 14: LEROUX, Gaston. The Phantom of the Opera. FIRST AM. ED, FIRST ISSUE IN THE VERY RARE DUST JACKET. 1911. $6,000 – 8,000.
    Freeman’s | Hindman, Nov. 14: GOULD, John. A Monograph of the Trochilidae...Humming-Birds. L., [1849-] 1861. $60,000 – 80,000.
    Freeman’s | Hindman, Nov. 14: A COMPLETE RUN of Limited Editions Club publications, v.p. [mostly New York], 1929-2010. $50,000 – 60,000.
    Freeman’s | Hindman, Nov. 14: ORWELL, George. Nineteen Eighty-Four. Lon., 1949. FIRST EDITION IN A VERY FINE DUST JACKET. $6,000 – 8,000.
    Freeman’s | Hindman, Nov. 14: GOULD. A Monograph of the Ramphastidae...Toucans. L., [1852-] 54. SECOND ED. $35,000 – 45,000.
    Freeman’s | Hindman, Nov. 14: The Federalist. NY, 1788. FIRST EDITION, THICK PAPER COPY. $60,000 – 80,000.
    Freeman’s | Hindman, Nov. 14: SELBY. Plates to Selby’s Illustrations of British Ornithology. Edin., [1833-] 34. $20,000 – 30,000.
  • Gonnelli:
    Auction 55
    Antique prints, paintings and maps
    November 26st 2024
    Gonnelli: Stefano Della Bella, 23 animal plances,1641. Starting price 480€
    Gonnelli: Stefano Della Bella, Boar Hunt, 1654. Starting price 180€
    Gonnelli: Crispijn Van de Passe, The seven Arts, 1637. Starting price 600€
    Gonnelli: Giuseppe Maria Mitelli, La Maschera è cagion di molti mali, 1688. Starting price 320€
    Gonnelli: Biribissor’s game, 1804-15. Starting price 2800€
    Gonnelli: Nicolas II de Larmessin, Habitats,1700. Starting price 320€
    Gonnelli: Miniature “O”, 1400. Starting price 1800€
    Gonnelli: Jan Van der Straet, Hunt scenes, 1596. Starting Price 140€
    Gonnelli: Massimino Baseggio, Costantinople, 1787. Starting price 480€
    Gonnelli: Kawanabe Kyosai, Erotic scene lighten up by a candle, 1860. Starting price 380€
    Gonnelli: Duck shaped dropper, 1670. Starting price 800€
  • Swann, Nov. 14: Stephen Sondheim, autograph musical quotation signed and inscribed, 4 bars from “Send in the Clowns,” 1986.
    Swann, Nov. 14: George Washington, autograph letter signed to Robert Morris, preparing for attack on Philadelphia, 1777.
    Swann, Nov. 14: Autograph album containing over 250 signatures by members of 29th U.S. Congress, 1845.
    Swann, Nov. 14: Charles “The Bold,” letter signed to Duke of Milan written during Burgundian Wars, 1475.
    Swann, Nov. 14: Deng Xiaoping, TIME magazine “Man of the Year” issue signed and dated, 1979.
    Swann, Nov. 14: Theodor Herzl, autograph letter signed to prospective tutor of his children, 1902.
    Swann, Nov. 14: Bourienne’s Memoirs of Napoleon Bonaparte extra illustrated including 1798 letter signed by Napoleon after Battle of the Nile, 1836.
    Swann, Nov. 14: George Minot, autograph manuscript signed, diary kept during European trip to claim Nobel Prize, 1934.
    Swann, Nov. 14: Thomas Jefferson, autograph letter signed, introducing George Washington’s personal secretary Tobias Lear, 1793.
    Swann, Nov. 14: Winston Churchill, A History of the English-Speaking Peoples, signed in second volume, first edition, 1956-58.
    Swann, Nov. 14: John Steinbeck, late typescript drafts of 5 chapters from his posthumously published tales of King Arthur, 1959.
    Swann, Nov. 14: H.G. Wells, group of 14 of his books signed to his mistress Rebecca West or the son they had together, 1910s-40s.
  • Ketterer Rare Books
    Auction November 25th
    Ketterer Rare Books, Nov. 25:
    H. Schedel, Liber chronicarum, 1493. Est: € 25,000
    Ketterer Rare Books, Nov. 25:
    P. O. Runge, Farben-Kugel, 1810. Est: € 8,000
    Ketterer Rare Books, Nov. 25:
    W. Kandinsky, Klänge, 1913. Est: € 20,000
    Ketterer Rare Books
    Auction November 25th
    Ketterer Rare Books, Nov. 25:
    W. Burley, De vita et moribus philosophorum, 1473. Est: € 4,000
    Ketterer Rare Books, Nov. 25:
    M. B. Valentini, Viridarium reformatum seu regnum vegetabile, 1719. Est: € 12,000
    Ketterer Rare Books, Nov. 25:
    PAN, 10 volumes, 1895-1900. Est: € 15,000
    Ketterer Rare Books
    Auction November 25th
    Ketterer Rare Books, Nov. 25:
    J. de Gaddesden, Rosa anglica practica medicinae, 1492. Est: € 12,000
    Ketterer Rare Books, Nov. 25:
    M. Merian, Todten-Tanz, 1649. Est: € 5,000
    Ketterer Rare Books, Nov. 25:
    D. Hammett, Red harvest, 1929. Est: € 11,000
    Ketterer Rare Books
    Auction November 25th
    Ketterer Rare Books, Nov. 25:
    Book of hours, Horae B. M. V., 1503. Est: € 9,000
    Ketterer Rare Books, Nov. 25:
    J. Miller, Illustratio systematis sexualis Linneai, 1792. Est: € 8,000
    Ketterer Rare Books, Nov. 25:
    F. Hundertwasser, Regentag – Look at it on a rainy day, 1972. Est: € 8,000
  • Doyle
    Stage & Screen
    November 14 & 15
    Doyle, Nov. 14-15: A studio-sanctioned Darth Vader Touring Costume from The Empire Strikes Back. $50,000 to $100,000.
    Doyle, Nov. 14-15: An original Al Hirschfeld's illustration of the cast of On Golden Pond. $4,000 to $6,000.
    Doyle, Nov. 14-15: The largest trove of personal Grace Kelly letters to come to market. $60,000 to $80,000.
    Doyle, Nov. 14-15: An Important Archive of Musical Manuscripts of Truman Capote and Harold Arlen's House of Flowers. $40,000 to $60,000.
    Doyle, Nov. 14-15: The archive of an original Merrily We Roll Along Broadway cast member. $5,000 to $10,000.
    Doyle, Nov. 14-15: Jerry Herman's Yamaha Model C7 Ebonized Grand Piano. $6,000 to $9,000.
    Doyle, Nov. 14-15: A large group of Jerry Herman musical posters. $300 to $500.
    Doyle, Nov. 14-15: Group of awards presented to Jerry Herman. $300 to $400.
    Doyle, Nov. 14-15: Six pages of original art for "The MAD Game of Basebrawl," a complete story published in MAD #167, pages 31-36, June 1974. $3,000 to $4,000.
    Doyle, Nov. 14-15: A MAD book made for Al Jaffee, containing original art and writings from many MAD contributors. 2011. $1,200 to $1,800.
    Doyle, Nov. 14-15: A Jaffee-themed MAD Fold-In - "What honor should the creator of the MAD Fold-Ins be given?" $800 to $1,200.
    Doyle, Nov. 14-15: MAD Fold-In - "What developing news story has many Americans totally transfixed?" $800 to $1,200.

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