The quality of ownership is not what it was in yesteryear.
October 9, 2012 8:33 AM Subscribe

On October 29, the U.S. Supreme Court will hear oral arguments in Kirtsaeng v. John Wiley & Sons, Inc., a conflict about “first-sale doctrine”. The doctrine, which has been law in the U.S. since 1908, allows people to buy and then subsequently sell items (books, furniture, electronics, dvds, etc.) without needing additional permission from the copyright holder. Supap Kirtsaeng came to the United States from Thailand to study mathematics and attempted to save money by having his family purchase textbooks in Thailand and ship them to him. After reading up on the first-sale doctrine, Kirtsaeng began to sell these textbooks to others on eBay. He made $37,000, before he was sued by John Wiley, a textbook publisher. A jury found his copyright infringement to be willful. He was ordered to pay $75,000 per work for a total penalty of $600,000. He appealed, and lost at the 2nd Circuit.

The Library Journal notes that if the Supreme Court rules against Kirtsaeng, it could mean the end of public libraries. Marketwatch warns that it means the end of resale as we know it. Hollywood Esq. does the most cogent job of putting this IP fight in perspective of other IP fights before the Court.
posted by dejah420 (210 comments total) 41 users marked this as a favorite

Nice post on an important issue but the "it could mean the end of public libraries" link actually says "both Wiley and the U.S. solicitor general are at pains to provide legal theories that accommodate library lending in particular".
posted by Egg Shen at 8:39 AM on October 9, 2012 [4 favorites]

A jury found his copyright infringement to be willful.

Did they also find it to be existent? Because I'm not seeing it. No copy has been made.

How is this different than a used book store? I buy through Alibris all the time and often those books are only available overseas.

(I've found Wiley's textbooks to be the worst. I had one years ago that was full of errors. Not typos, I mean actually non-functional code. When I emailed them, their response was basically "so what?" Also had them give me the finger when I asked why all the newer versions of another book I wanted had no answers in the back.)
posted by DU at 8:45 AM on October 9, 2012 [16 favorites]

Egg Shen: "Nice post on an important issue but the "it could mean the end of public libraries" link actually says "both Wiley and the U.S. solicitor general are at pains to provide legal theories that accommodate library lending in particular"."

Maybe this is a reference to some of that crazy judicial activism I've been hearing so much about? Wiley and the defendant could both make accommodating arguments and stilll wind up with something tangential and zany.
posted by boo_radley at 8:45 AM on October 9, 2012 [2 favorites]

both Wiley and the U.S. solicitor general are at pains to provide legal theories that accommodate library lending

This does not comfort me in the slightest.
posted by aramaic at 8:46 AM on October 9, 2012 [43 favorites]

Yeah, despite any arguments from either side; after Citizens United I always brace for the SCOTUS to do the absolute worst.
posted by hellojed at 8:47 AM on October 9, 2012 [32 favorites]

Egg Shen: "Nice post on an important issue but the "it could mean the end of public libraries" link actually says "both Wiley and the U.S. solicitor general are at pains to provide legal theories that accommodate library lending in particular"."

Yes, am I'm not a lawyer, and could have missed something when I was reading the briefs and the amicus stuff, but I couldn't find anything that carved out exceptions for lending libraries or used book stores. I could have missed it, but I read that line from the LJ as more of a promise, than an actual legal filing.
posted by dejah420 at 8:47 AM on October 9, 2012 [3 favorites]

both Wiley and the U.S. solicitor general are at pains to provide legal theories that accommodate library lending in particular

So what? This court loves to espouse theories even more expansive than asked for by whomever they end up deciding in favor of—especially if by doing so it can help out monied interests (like multinational publishing conglomerates) and/or chip away at social programs hated by the right (like public libraries). It is entirely accurate to say that "it could mean the end of public libraries" regardless of what theory Wiley is pushing.
posted by enn at 8:47 AM on October 9, 2012 [14 favorites]

Kevin Smith of Scholarly Communications @ Duke has another library-specific take here. Barbara Fister (who I could swear was MeFi's own) addressed it here. Publishers Weekly's own take is here.

One main issue is that "fair use" is not an especially well-defined path to walk upon, especially for libraries and universities. Relying on solely on that, and not on First Sale, could present legal problems down the road.
posted by jetlagaddict at 8:48 AM on October 9, 2012 [6 favorites]

How is this different than a used book store?

Or a used camera? Or used TV? Do those scenarios apply? It seems as though they would.
posted by dave*p at 8:50 AM on October 9, 2012 [2 favorites]

The key issue is "does the right of first sale apply to books purchased outside the United States?" Is that right?
posted by mediareport at 8:50 AM on October 9, 2012 [4 favorites]

What is it about publishers and media companies that makes them so determined to stake out positions that add short term profit at the expense of ruining the entire industry?
posted by Forktine at 8:50 AM on October 9, 2012 [28 favorites]

and hopefully one of Metafilter's Not Our Lawyers will pop in to tell us we're being paranoid soon.
posted by boo_radley at 8:51 AM on October 9, 2012 [4 favorites]

From the Marketwatch article:

For example, it could become an incentive for manufacturers to have everything produced overseas because they would be able to control every resale.
posted by mediareport at 8:52 AM on October 9, 2012 [11 favorites]

What is it about publishers and media companies that makes them so determined to stake out positions that add short term profit at the expense of ruining the entire industry?

Capitalism.

"Fuck you, got mine" is just from the rich to the poor. It's also from the rich to the future, even for themselves.
posted by DU at 8:53 AM on October 9, 2012 [40 favorites]

after Citizens United I always brace for the SCOTUS to do the absolute worst

A sensible policy.

Still, it seems to me that before plain budgetary cutbacks get overtaken as the chief existential threat to libraries, it will be necessary for both: 1) SCOTUS to make a ruling that leaves libraries at the mercy of copyright holders, and 2) Copyright holders to actually bring suit against libraries under the new law.

No doubt one of our resident librarians can more accurately assess the risks under discussion.
posted by Egg Shen at 8:54 AM on October 9, 2012 [1 favorite]

How is this different than a used book store?

Because the books this guy was selling weren't used. He's basically a distributor, and I don't blame Wiley for acting on it, because when they contracted to publish those books they reasonably expected to be the only seller of those specific titles in the U.S.
posted by orange swan at 8:55 AM on October 9, 2012 [5 favorites]

This case seems extremely similar to Omega vs Costco (mentioned in passing in some of the links), where Omega (the watch company) sued Costco for buying genuine Omega watches produced for overseas markets and sold there at lower prices and importing them into the US for resale in Costco stores. Omega's lawsuit claimed that this was a copyright violation because of the use of a copyrighted imprint on the watch case; the lower court found for Omega and SCOTUS was split 4-4 with Kagan recusing herself. So, I don't see a lot of reason for optimism here.
posted by enn at 8:56 AM on October 9, 2012 [14 favorites]

Even if they win, they will still lose. Textbooks are all over the Internet if you know where to look. If they want to lose less badly, they need to change. It will probably take them a long time to figure it out.
posted by rtha at 9:00 AM on October 9, 2012 [3 favorites]

The law is clear. The United States doesn't allow for parallel imports.

Arguing that the first sale doctrine is in danger is obscene because the question presented is:

A person has violated 602(a)(1). Does that act invalidate a person's first-sale right on the article given under 109(a) given that the item is still "lawfully made" where it was originally purchased?

So far the courts have said yes, as it should be. What's the point of having 602(a)(1) if you leave a loophole big enough to import a boatload of books through? The intent of the law is clear here and everyone should brace themselves for disappointment if they're expecting this to be overturned. I'm surprised the Supreme Court gave it cert because I would have smacked it down summarily with a note saying "602(a)(1) is clearly constitutional. Your remedy here is legislative not judicial".

For example, it could become an incentive for manufacturers to have everything produced overseas because they would be able to control every resale.

If the first authorized sale occurs in the United States then it can be made in Timbucktoo for all the law cares. If the first authorized sale occurs outside the United States but with the permission of the copyright owner 109(a) still applies. Journalists are idiots.
posted by Talez at 9:00 AM on October 9, 2012 [42 favorites]

Because the books this guy was selling weren't used. He's basically a distributor...

Right, not all the books at the used book store are used either. Often the "used" books I buy from Alibris have never been opened, have glossy covers, etc. Same at the physical versions, although less usually.

And I'm still not clear how "being basically a distributor" = "a copyright violation". There's still been no copy made, right?
posted by DU at 9:02 AM on October 9, 2012 [1 favorite]

- How is this different than a used book store?

- Because the books this guy was selling weren't used

I don't think that's the issue here (but I haven't read the actual case documents so I'm open to being corrected). I think the key to Wiley's case is that he bought the books in another country and then sold them in the U.S.
posted by mediareport at 9:04 AM on October 9, 2012 [2 favorites]

It sounds to me like the issue here is being able to price your copyrighted product differently in different markets. This Kirtsaeng person found an arbitrage between two markets and exploited it. The drug companies do this all the time, but they have the FDA to defend their local US markets from cheap imports of their own drugs sold much cheaper in other countries. If these books were priced efficiently, the cost of importation to the US would make the method not very lucrative. It seems as if the books are being offered too cheaply overseas or more likely, get this, they are over pricing them here. Now they are trying to use the copyright laws to maintain a monopoly pricing scheme.

I actually think that the SCOTUS will reject Wiley's arguments in favor of a free market approach.
posted by JohnnyGunn at 9:04 AM on October 9, 2012 [4 favorites]

This case seems extremely similar to Omega vs Costco (mentioned in passing in some of the links), where Omega (the watch company) sued Costco for buying genuine Omega watches produced for overseas markets and sold there at lower prices and importing them into the US for resale in Costco stores. Omega's lawsuit claimed that this was a copyright violation because of the use of a copyrighted imprint on the watch case; the lower court found for Omega and SCOTUS was split 4-4 with Kagan recusing herself. So, I don't see a lot of reason for optimism here.

The big difference appears to be that in this case the circuit court went a step further and said that even if the foreign-made books were sold in the US directly by the manufacturer, a buyer would have no first sale rights. Given that so much manufacturing happens outside of the US that would mean that US consumers would lose first sale rights for a huge number of products. But that more general ruling could feasibly be overturned by the Supreme Court's decision even if they still side with Wiley. I do think that the current Supreme Court is much less likely to uphold things like consumer first sale rights though, I don't think they have upheld it against a lot of the technological workarounds that have been used by manufacturers recently (such as shrinkwrap licenses, digital content licensing, etc.).
posted by burnmp3s at 9:05 AM on October 9, 2012 [5 favorites]

DU: "And I'm still not clear how "being basically a distributor" = "a copyright violation". There's still been no copy made, right?"

From the copyright office: (1) Importation.—Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501.
posted by boo_radley at 9:05 AM on October 9, 2012 [10 favorites]

I actually think that the SCOTUS will reject Wiley's arguments in favor of a free market approach.

I think you'll find the free market is only good when the rich people are running it. Arbitrage (from poor people) will destroy us all.
posted by DU at 9:05 AM on October 9, 2012 [23 favorites]

There's something a little weird in the framing of this story:

Supap Kirtsaeng came to the United States from Thailand to study mathematics and attempted to save money by having his family purchase textbooks in Thailand and ship them to him. After reading up on the first-sale doctrine, Kirtsaeng began to sell these textbooks to others on eBay. He made $37,000, before he was sued by John Wiley, a textbook publisher.

"Attempting to save money" makes it sound like he was just looking to buy his own, personal textbooks at a lower rate, and then happened to onsell them when he was done with them. But that's clearly not what happened here. He wasn't "attempting to save money" he was attempting to make a ton of money by buying up books in bulk in Thailand and then selling them at a profit in the US. It may well be that what he was doing was, and should be, entirely legal, but it seems a bit tendentious to frame it as if he was just selling his own used textbooks.
posted by yoink at 9:07 AM on October 9, 2012 [15 favorites]

Huh, well I stand corrected. Yet Another Thing That Needs Fixing About IP Law.
posted by DU at 9:07 AM on October 9, 2012 [3 favorites]

2) Copyright holders to actually bring suit against libraries under the new law.

They'd do it in a red-hot minute. You expect them to voluntarily leave money on the table for the good of the local communities they don't live in? The intellectual property industry hires people to go to bars to write down what was played on the juke box, for heaven's sake.

They're not going to let a single goddamn nickel go unsqueezed, even if it means bankrupting every municipality in the nation.
posted by Slap*Happy at 9:08 AM on October 9, 2012 [18 favorites]

How is this different than a used book store?

orange swan: Because the books this guy was selling weren't used. He's basically a distributor

Of second-hand goods.

enn: This case seems extremely similar to Omega vs Costco (mentioned in passing in some of the links), where Omega (the watch company) sued Costco for buying genuine Omega watches produced for overseas markets and sold there at lower prices and importing them into the US for resale in Costco stores.

Exactly. This is a case of Grey Market Goods. As stated a couple of times in this summary of the case, and in the OP, Kirtsaeng arranged for family and friends living abroad to purchase textbooks and ship them to him. It doesn't sound like they got any wholesale discount, but rather found venues that were selling at a local price, discounted from the US market price.

Family and friends were the first purchasers, buying from local distributors. Books and other goods are distributed to other countries at different prices, depending on a number of factors. They are legitimate goods, but sold on an international, leveled market.

Discount sellers like Costco and Target and Internet giants eBay and Amazon help form an estimated $63 billion annual market for goods that are purchased abroad, then imported and resold without the permission of the manufacturer. THIS is the issue. International companies try to cater to different markets. As cited by boo_radley, the US generally tries to play nice with such distribution plans.
posted by filthy light thief at 9:09 AM on October 9, 2012 [7 favorites]

Textbooks are all over the Internet if you know where to look.

Problems there too, alas...
posted by Egg Shen at 9:10 AM on October 9, 2012

He wasn't "attempting to save money" he was attempting to make a ton of money by buying up books in bulk in Thailand and then selling them at a profit in the US. It may well be that what he was doing was, and should be, entirely legal, but it seems a bit tendentious to frame it as if he was just selling his own used textbooks.

He wasn't dinged for smuggling, tho. He was dinged for copyright infringement.
posted by Slap*Happy at 9:10 AM on October 9, 2012 [3 favorites]

So, let me see if I understand this. Several years ago, I bought a copy of a Clive Barker book off of amazon.co.uk (I live in the US), because I liked the UK cover better. Is the argument here that I'd be breaking the law if I sold it?
posted by jbickers at 9:11 AM on October 9, 2012

He wasn't dinged for smuggling, tho. He was dinged for copyright infringement.

That's because the law for importing unauthorized copies of a work is in the Copyright Act and is labelled in the law as an infringement of a US company's copyright.
posted by Talez at 9:12 AM on October 9, 2012

There are also issues when companies try to sell new goods at below Manufacture-mandated minimum prices for new goods in the US. In some cases, the goods are sold as "used" to bypass the new price limits.

jbickers: Is the argument here that I'd be breaking the law if I sold it?

Yes. But you weren't caught. Lots of people speed on public roads, and they're all law-breakers, but only a few get caught and fined.
posted by filthy light thief at 9:12 AM on October 9, 2012

These sorts of cases really put paid to the US's insistence for free(er) trade. Coal and steel and cars and butter should be free of trade controls, but IP is to be heavily regulated and restricted, and increasingly so, sometimes even in the same treaties.
posted by bonehead at 9:14 AM on October 9, 2012 [6 favorites]

Talez: "I'm surprised the Supreme Court gave it cert because I would have smacked it down summarily with a note saying "602(a)(1) is clearly constitutional. Your remedy here is legislative not judicial"."

Yes, but what about Quality King Distributors, Inc. v. L'anza Research International, Inc, where in a unanimous opinion, the Supreme Court held that § 109(a), operating in combination with § 106(3), does in fact limit the scope of § 602(a). Granted, Ginsberg opined that it was because the L'anza products made a "round trip"; but from what I can tell from reading (again, not a lawyer), I can't tell if "made in the USA" is a necessary mandate of that ruling. The minutia of the law at that level is really complex, and a layperson trying to make sense of it may get lost. Which is to say, send the Sherpas, it's scary up here on constitutional hill.
posted by dejah420 at 9:20 AM on October 9, 2012 [3 favorites]

What yoink said above. What Kirtsaeng did is clearly a violation of (IMO) legitimate copyright law and has little to do with first-sale doctrine. Also, this post's framing of the issue is willfully misleading.
posted by rocket88 at 9:21 AM on October 9, 2012 [1 favorite]

The law is clear. The United States doesn't allow for parallel imports.

I'm no legal expert, and on the surface I agree that this seems to have legal precedent unrelated to first-sale doctrine. But if that's so, can someone explain why the Supreme Court is even bothering to take on this case?
posted by drpynchon at 9:23 AM on October 9, 2012

Worked for Wiley for 11 years up til May. Re- importation is a huge loss factor. We priced our books to local markets like every other industry in the world.
posted by spicynuts at 9:23 AM on October 9, 2012

yoink: "Attempting to save money" makes it sound like he was just looking to buy his own, personal textbooks at a lower rate, and then happened to onsell them when he was done with them. But that's clearly not what happened here. He wasn't "attempting to save money" he was attempting to make a ton of money by buying up books in bulk in Thailand and then selling them at a profit in the US. It may well be that what he was doing was, and should be, entirely legal, but it seems a bit tendentious to frame it as if he was just selling his own used textbooks.

No, you're misreading it. The story clearly states why he first had his family send the initial books (for himself, to save money), and then after that, ...

After reading up on the first-sale doctrine, Kirtsaeng began to sell these textbooks to others on eBay.

... he realized he could make a profit, and began for-profit importation.

The article leaves out the "he realized he could make a profit, and began"... but it's implied.
posted by IAmBroom at 9:25 AM on October 9, 2012 [2 favorites]

It's a really interesting topic. I work for one of the major international textbook publishers. We've had problems with people mass importing and selling international versions of the book in the past, as well. I don't think we've ever had such a public reaction, though. It's not really all that different for us in a business perspective than used books, but then those are problems for us, too.

Obviously the answer is that we should just make everything digital. That would make it a reasonable price for the students (cheaper than used, even), updateable as new discoveries are made (I work in the sciences), and pretty much just better in every way. Everyone I work with is lobbying for this and working to make it happen, but I think it's going to be a slow evolution, since the platforms are continuously changing and we don't always have the in-house talent to do this kind of technological work. We're mostly English majors.
posted by chatongriffes at 9:25 AM on October 9, 2012 [2 favorites]

There is absolutely zero chance of the United States Supreme Court bringing an end to public libraries.

This is correct. The giant land grab and screwing over of public libraries is going to happen through the absence of things like Right of First Sale with digital content which is becoming a larger and larger percentage of the content that libraries are "purchasing". Add to this that many large publishers basically refuse to sell to digital distributors at all (much less lend to libraries) and I'm concerned about this for a totally different reason. I see it as a lot like the Omeka thing, really. It will potentially affect libraries' ability to lend foreign-purchased books which is a huge deal for academic libraries, somewhat less an issue for publics. There are some pretty shitty things happening to libraries lately in terms of copyright and capitalism and a bunch of other things but this issue is somewhat further down the list of imminent threats than others.
posted by jessamyn at 9:25 AM on October 9, 2012 [29 favorites]

Granted, Ginsberg opined that it was because the L'anza products made a "round trip"

You've hit the nail on the head. It doesn't lose first sale status through exportation.
posted by Talez at 9:28 AM on October 9, 2012

"Worked for Wiley for 11 years up til May. Re- importation is a huge loss factor. We priced our books to local markets like every other industry in the world."

Nothing personal, but fuck Wiley. If it's cheaper to buy these textbooks somewhere halfway around the world and ship them back here, that means they cost too much here.

"Obviously the answer is that we should just make everything digital. That would make it a reasonable price for the students (cheaper than used, even), updateable as new discoveries are made (I work in the sciences), and pretty much just better in every way. Everyone I work with is lobbying for this and working to make it happen, but I think it's going to be a slow evolution, since the platforms are continuously changing and we don't always have the in-house talent to do this kind of technological work."

Unfortunately, this comes with a death of the idea of ownership in favor of perpetual licensing. That fucks libraries too.
posted by klangklangston at 9:30 AM on October 9, 2012 [12 favorites]

Egg Shen: " Problems there too, alas..."

That won't affect books, though. Will it?
posted by zarq at 9:34 AM on October 9, 2012

I was under the impression that libraries were doing alright with kindle versions of books. I mostly buy my books--can anyone else weigh in on this?

In terms of ownership, I agree that digital is an imperfect medium. I'm very much a buyer of hard copy books for that reason. But in my experience most students don't want to keep their textbooks once the semester is done anyway. Almost everyone ends up selling their books back. Maybe that's because they need money to fund next semester, but I think it's also often because they really don't care about keeping the book. To me, that makes digital all the more an elegant solution.
posted by chatongriffes at 9:35 AM on October 9, 2012

Nothing personal, but fuck Wiley. If it's cheaper to buy these textbooks somewhere halfway around the world and ship them back here, that means they cost too much here.

No it doesn't. It means that the market in the United States for textbooks is such that people are willing to pay more. The fact that things cost more in a country as rich as the US versus a newly industrialized country as Thailand shouldn't be surprising, we have more money to spend on them.
posted by Bulgaroktonos at 9:35 AM on October 9, 2012 [1 favorite]

No, it does not. They are printed in India. It is a shit ton cheaper to ship to India and Asia than to the US. Also, feel free to apply your logic to the prices of other things. See what happens. I am no huge fan of Wiley, but I also have intimate knowledge of costs, margins and local markets that drive these decisions. I can promise you that the Wiley family (on the board to this day since 1807 and still in the office every day) are not sittin on top of mountains of gold like Scrooge McDuck screaming SCREW THE POORS. It's a nice image for hating on realities of capitalism but it isn't true.
posted by spicynuts at 9:38 AM on October 9, 2012 [4 favorites]

It means that the market in the United States for textbooks is such that people are willing to pay more

Some are willing to pay less, obviously. If Wiley can make money selling them cheaper elsewhere, they're just being greedy here in the US.
posted by ChurchHatesTucker at 9:40 AM on October 9, 2012 [1 favorite]

really do you even understand markets? The reason they canbesold cheaper elsewhere is because the US market can support a higher margin. Jesus. I understand the hate-on but try to know what you're hating on.
posted by spicynuts at 9:41 AM on October 9, 2012 [6 favorites]

That won't affect books, though. Will it?

I'm not sure if P2P [which is the target of the six-strikes law] is a more or less abundant source of textbooks than file-sharing services. But the latter has seen sunnier days too.

In any case, college campuses would be a sneakernet paradise, I imagine.
posted by Egg Shen at 9:42 AM on October 9, 2012

klangklangston
Nothing personal, but fuck Wiley. If it's cheaper to buy these textbooks somewhere halfway around the world and ship them back here, that means they cost too much here.

They cost more here in part because (post-printing) the truckers, warehouse workers, book store clerks, and that very attractive lady who goes around universities trying to get people like me to require Wiley's crappy product in classes all get paid a lot more in the U.S. than they would in Thailand. All of those wages increase the cost of the book. We can't have American book store clerks making Thailand wages. They wouldn't be able to afford a peanut butter. BTW, peanut butter is also more expensive here.

(on preview, what Bulgaroktonos says is also true.)
posted by yeolcoatl at 9:42 AM on October 9, 2012 [4 favorites]

We priced our books to local markets like every other industry in the world.
posted by spicynuts at 11:23 AM on October 9 [+] [!]

In a globalized economy, the idea of local markets seems a bit quaint.
posted by dortmunder at 9:43 AM on October 9, 2012 [11 favorites]

That's not the market. Quite the opposite, in fact.
posted by ChurchHatesTucker at 9:43 AM on October 9, 2012

dortmunder: We priced our books to local markets like every other industry in the world.
posted by spicynuts at 11:23 AM on October 9 [+] [!]

In a globalized economy, the idea of local markets seems a bit quaint.

We aren't nearly that globalized yet.

Someday.

But not this decade.
posted by IAmBroom at 9:47 AM on October 9, 2012 [1 favorite]

The reason they can be sold cheaper elsewhere is because the US market can support a higher margin.

IOW, profits in the OECD countries are being used to subsidize sales in developing markets? So, therefore, arbitrage is bad?

If this is so, why not make it explicit as a matter of policy rather than trying to sneak it in the back door? If it is true that every book sold in India is done at a loss, why do it at all?
posted by bonehead at 9:48 AM on October 9, 2012 [2 favorites]

I was under the impression that libraries were doing alright with kindle versions of books.

This is kind of a side note to the main topic, but it really depends on the publisher and their licensing agreements. Some big firms refuse to sell digital editions to libraries, period. Some people also do not like the main platforms for distributing library copies of digital books, like Overdrive.
posted by jetlagaddict at 9:48 AM on October 9, 2012

jbickers: "So, let me see if I understand this. Several years ago, I bought a copy of a Clive Barker book off of amazon.co.uk (I live in the US), because I liked the UK cover better. Is the argument here that I'd be breaking the law if I sold it?"

As a layman, I think the infringing act (term?) is solely the importation of the item, not in its resale.

spicynuts: "really do you even understand markets? The reason they canbesold cheaper elsewhere is because the US market can support a higher margin. Jesus. I understand the hate-on but try to know what you're hating on."

Once the invisible hand was described, all economists made every effort to nail it to the wall.
posted by boo_radley at 9:49 AM on October 9, 2012 [2 favorites]

that very attractive lady who goes around universities trying to get people like me to require Wiley's crappy product in classes

This is new to me.

Is the lady's attractiveness a given? She's an academia "booth babe"?
posted by Egg Shen at 9:52 AM on October 9, 2012

There are some pretty shitty things happening to libraries lately in terms of copyright and capitalism and a bunch of other things but this issue is somewhat further down the list of imminent threats than others.

Well, you do realize that some of the users of libraries actually have money and are avoiding paying for purchasing the books by borrowing them from the library, then reading and returning them on time. This is scandalous, because all those people with money in their pockets are not giving it to the publishers and distributors, not to mention the poor starving writers. Does anyone think of the poor starving writers?

In summary, shut down the communist libraries used by the takers and other lazy freeloaders so that more robust profits can be made by the makers.
posted by Mental Wimp at 9:53 AM on October 9, 2012 [2 favorites]

It's a little weird how some people suddenly become devoted free market no-holds-barred capitalists when it's applied to how much things cost in addition to how much workers are paid.
posted by kyrademon at 9:53 AM on October 9, 2012 [8 favorites]

If this is so, why not make it explicit as a matter of policy rather than trying to sneak it in the back door? If it is true that every book sold in India is done at a loss, why do it at all?
posted by bonehead at 9:48 AM on October 9

This isn't quite the case. The international editions are created with much less expensive materials. The paper is almost newspaper, the covers are paper and floppity, the printing isn't always in color, etc. I'm pretty sure American students would be disgusted with the quality and complain. To be fair, a choice might be nice. But we aren't selling things to India at a total loss. Also....they deserve to learn too?
posted by chatongriffes at 9:53 AM on October 9, 2012 [1 favorite]

Is the lady's attractiveness a given? She's an academia "booth babe"?
posted by Egg Shen at 9:52 AM on October 9 [+] [!]

I know these people and the answer is resoundingly yes. They tend to be young, attractive women. Apparently people are more inclined to buy things from them.
posted by chatongriffes at 9:55 AM on October 9, 2012 [6 favorites]

The paper is almost newspaper, the covers are paper and floppity, the printing isn't always in color, etc. I'm pretty sure American students would be disgusted with the quality and complain. To be fair, a choice might be nice. But we aren't selling things to India at a total loss. Also....they deserve to learn too?

So, if there is demand for this low-cost version, why not sell it here? Oh, that's right, they have a monopoly. For decades. Love that free market.
posted by Mental Wimp at 9:56 AM on October 9, 2012 [7 favorites]

Egg Shen: "Is the lady's attractiveness a given? She's an academia "booth babe"?"

I don't want to be... whatever... but academic book salespeople are typically very attractive. And not a booth babe, because that person will also be making a percentage + bonus on sales. The textbook market is tremendously competitive in a large variety of metrics.
posted by boo_radley at 9:57 AM on October 9, 2012 [3 favorites]

There are some pretty shitty things happening to libraries lately in terms of copyright and capitalism and a bunch of other things but this issue is somewhat further down the list of imminent threats than others.

It's ironic that digital content is killing libraries because on a purely practical level those technological advances would make libraries much more useful and much cheaper to run if publishers couldn't use them as a way to roll back consumer protection laws.

All of those wages increase the cost of the book. We can't have American book store clerks making Thailand wages. They wouldn't be able to afford a peanut butter. BTW, peanut butter is also more expensive here.

I guess that's why textbook prices have dropped so significantly since they moved all of their manufacturing to countries that have crappier working conditions and cheaper labor!
posted by burnmp3s at 9:58 AM on October 9, 2012 [20 favorites]

The textbook market is tremendously competitive in a large variety of metrics.

First prize is a print edition of the Oxford English Dictionary. Second prize is a set of steak knives. Third prize is you're fired.
posted by Egg Shen at 9:59 AM on October 9, 2012 [10 favorites]

So, if there is demand for this low-cost version, why not sell it here? Oh, that's right, they have a monopoly. For decades. Love that free market.
posted by Mental Wimp at 9:56 AM on October 9

I don't know if you've looked into this recently, but we do have low cost options available, like loose leaf versions of the books, as well as digital options. Unfortunately, the students don't always know that or have access to them, since the professors are the ones that decide which version to use.
posted by chatongriffes at 10:00 AM on October 9, 2012

burnmp3s: "I guess that's why textbook prices have dropped so significantly since they moved all of their manufacturing to countries that have crappier working conditions and cheaper labor!"

This is fantastic. Is there a blog post that goes with it?
posted by boo_radley at 10:00 AM on October 9, 2012

But we aren't selling things to India at a total loss. Also....they deserve to learn too?

My take-away from this is that the price the buyer pays for the book really isn't that well connected to the production cost at all. Electronic editions cost even less than "newspaper" ones. Arguments about costs are largely distractions from these sorts of discussions.
posted by bonehead at 10:01 AM on October 9, 2012 [4 favorites]

No, you're misreading it. The story clearly states why he first had his family send the initial books (for himself, to save money), and then after that, ...

After reading up on the first-sale doctrine, Kirtsaeng began to sell these textbooks to others on eBay.
... he realized he could make a profit, and began for-profit importation.

Except that "these textbooks" refers, in the context of the FPP, to the textbooks that Kirtaeng's family sent him to "save money." What the FPP should have said, if it wanted to be clear about this point, was that he had his family send him textbooks to "save money" then, "after reading up on the first-sale doctrine," Kirtaeng decided to set himself up as a wholesale importer of Wiley textbooks from the Asian market, selling the books for profit on eBay in the US.
posted by yoink at 10:02 AM on October 9, 2012 [2 favorites]

Interesting case, but I have to admit, this leapt out at me most of all:

For resolution to the growing noise over whether movies, books and songs in digital form gain protection under the first-sale doctrine, another decision is forthcoming, which might be of interest to folks like Bruce Willis, recently rumored to be considering a lawsuit against Apple for limiting his ability to pass along his extensive iTunes collection to his children.

...hunh.
posted by Sticherbeast at 10:05 AM on October 9, 2012

This is fantastic. Is there a blog post that goes with it?

Found it on Google Image Search, but apparently this blog post is where it's originally from.
posted by burnmp3s at 10:06 AM on October 9, 2012 [3 favorites]

Arguments about costs are largely distractions from these sorts of discussions.

From discussions about costs?
posted by ChurchHatesTucker at 10:07 AM on October 9, 2012 [2 favorites]

If Wiley can make money selling them cheaper elsewhere, they're just being greedy here in the US.

This is, of course, precisely the logic behind outsourcing: "if we can find workers willing to do this work cheaper elsewhere, then the US workers are just being greedy demanding a US living wage."

It's interesting to see how strongly US Mefites will rally behind a "buy America first" appeal in general terms: that we ought to be willing to pay a premium to support living wages in a high-cost economy. But when it comes down to specific cases...well, who wants to pay more for widget X or textbook Y just because it costs more to pay printers, truck drivers, warehouse workers, inventory clerks, bookshop employees etc. etc. in the US than in Thailand?
posted by yoink at 10:08 AM on October 9, 2012 [6 favorites]

My take-away from this is that the price the buyer pays for the book really isn't that well connected to the production cost at all.

To some extent, I think this is true. The real cost of creating a book isn't so much in the printing and binding as in the creation of content and developing art and hiring experts for all the scientific vetting to make things as accurate as possible and creating the websites with all kinds of animations and videos to reinforce the content in the book.

The factors that determine price based on the different markets are tied up in business decisions that I freely admit are beyond my understanding. I'm happy to share the information I do know, though.
posted by chatongriffes at 10:09 AM on October 9, 2012

Yoink, the books have already been made. That ship done sailed.
posted by ChurchHatesTucker at 10:09 AM on October 9, 2012

who wants to pay more for widget X or textbook Y just because it costs more to pay printers, truck drivers, warehouse workers, inventory clerks, bookshop employees etc. etc. in the US than in Thailand?

The problem is that manufacturers want to have it both ways. They want to be able to benefit from globalization by moving production to wherever it's cheapest, but at the same time benefit from localization by pricing goods to whatever the local market will bear.
posted by echo target at 10:16 AM on October 9, 2012 [33 favorites]

This is most likely not a threat to public libraries, a system created by Ben Franklin, who
believed that for democracy to survive we need an educated and informed public. Were public
libraries guilty of this "practice" , someone would have brought suit a long time ago. Also,
public libraries are "lending" the books, not re-selling for profit. Also, people on the "right" are not
in favor of closing libraries. In fact, historically, it is the "left", examples such as
Lenin, Stalin, and particularly Mao who closed libraries and cut off all communication with free
people, and controlled the press, all of which is historically documented.
posted by Lyon1972 at 10:17 AM on October 9, 2012 [1 favorite]

It's interesting to see how strongly US Mefites will rally behind a "buy America first" appeal in general terms: that we ought to be willing to pay a premium to support living wages in a high-cost economy. But when it comes down to specific cases...well, who wants to pay more for widget X or textbook Y just because it costs more to pay printers, truck drivers, warehouse workers, inventory clerks, bookshop employees etc. etc. in the US than in Thailand?

Interesting, but not really applicable. You're talking about the difference between a widget made in the USA and a comparable widget made in China; this case is about one widget being made by one company which sells it for different prices in different markets.
posted by xbonesgt at 10:20 AM on October 9, 2012

No it doesn't. It means that the market in the United States for textbooks is such that people are willing to pay more.

No one is ever willing to pay more for the same product, and "floppity covers" do not account for the price premium.

When costs come up in the context of digital books, we are assured that producing, shipping and warehousing physical books are an infinitesimal fraction of the costs of book production, so I see no reason to assume otherwise in the case of textbooks.
posted by adamdschneider at 10:24 AM on October 9, 2012 [3 favorites]

For the record, this sort of thing happens with digital copies of video games as well. For instance, Valve sells their games much cheaper in countries like Russia and China b/c of income levels and rampant piracy, but as a caveat doesn't allow you to play those games outside those countries.
posted by archagon at 10:26 AM on October 9, 2012

For the record, this sort of thing happens with digital copies of video games as well.

It was also the reason for "region locking" on DVDs.
posted by ChurchHatesTucker at 10:28 AM on October 9, 2012

I can promise you that the Wiley family (on the board to this day since 1807 and still in the office every day) are not sittin on top of mountains of gold like Scrooge McDuck screaming SCREW THE POORS. It's a nice image for hating on realities of capitalism but it isn't true.

They do, however, charge more for math books than other publishers. List price for Dummit and Foote's Abstract Algebra (which happens to be the Wiley book on the shelf above this computer) is $110. Lang's Algebra (which is sort of comparable) is $80. Lang's Undergraduate Algebra is $75.

From a legal perspective, it's irrelevant, but Wiley and McGraw-Hill definitely charge noticeably more for canonical math books than their competitors, so, yeah, I have some antipathy towards them.
posted by hoyland at 10:28 AM on October 9, 2012 [1 favorite]

No one is ever willing to pay more for the same product, and "floppity covers" do not account for the price premium.

I don't understand this. Are you saying that people in the US aren't willing to pay more for the same product than people in Thailand? 'Cause we are; we have more money. That's how price discrimination works; some people are willing to pay more than other people, so you (as close as you can approximate) charge one price to them and one to other people.
posted by Bulgaroktonos at 10:29 AM on October 9, 2012

that very attractive lady who goes around universities trying to get people like me to require Wiley's crappy product in classes

This is new to me.

Is the lady's attractiveness a given? She's an academia "booth babe"?

Yes. I worked for Wiley many years ago. It's almost impossible to advance within the company without putting in two years or so as a campus salesperson, and if you're attractive and female, it's pushed at you HARD. The vast vast majority of textbook sales are made to community colleges and huge state schools- the sales force is generally young, right-out-of-college, untrained, female and good looking. They go around to these campuses and are instructed to basically stroke the egos of predominantly male professors and adjuncts, in order to get exclusivity deals. After racking up a certain amount of sales, they get to come back to the company proper with much higher salaries and better job titles than you'd ever get by actually staying and working your way up.

Have to add to the "fuck Wiley" sentiment. Yes, they need to be profitable to stay in business, but there are ways to stay viable without screwing your customers entirely. I doubt it'll happen at Wiley. They're old and entrenched, and you've never seen a place so institutionally resistant to change or innovation. I was actually told by a boss that the company feels that initiative on the part of its employees is considered disruptive. Their strategy for addressing the whole "internet" thing seemed to be to stick their fingers in their ears and whistle.

The college textbook industry... christ. Seems an odd thing to call evil, but it is. I have no doubt that all the companies do more or less the same things, so I won't say any of this is specific or exclusive to Wiley, but the shit that they got up to to.... Putting out new editions every year (it used to be every 3-5), forcing a new sale and removing the old editions from the bookstores. New editions that contained no new information or features, that there was absolutely no reason for a student to have to buy. Making all the material available digitally, but only accessible through a unique code physically printed on the physical book. Raising the price of a book by $75 just because it came with the answer key on an included CD instead of printed in the back. Anything to screw the students into having to buy a $250 physics textbook that they didn't really need. And this was like 8 years ago, when the issue of piracy was nowhere near what it is now. I can only imagine what shit they're getting up to now.
posted by Dormant Gorilla at 10:30 AM on October 9, 2012 [32 favorites]

This seems to be pretty one sided proposition. A business can build things cheaper elsewhere but are allowed to sell them for more than they are being sold at the point of origin? The American worker sells his labor but is forced to compete against third world labor? If profit is tied to the cost of production then labor will ultimately have more value. Imported goods should sell everywhere at the cost of the item at point of production. Workers are forced to compete with third world labor, so the profit needs to be tied to the cost of the labor used to produce it. If labor has been globalized then so should profit.
posted by pdxpogo at 10:31 AM on October 9, 2012 [8 favorites]

Also, people on the "right" are not
in favor of closing libraries. In fact, historically, it is the "left", examples such as
Lenin, Stalin, and particularly Mao who closed libraries and cut off all communication with free
people, and controlled the press, all of which is historically documented.

This is significantly more complicated than you make it out to be.

Generally speaking those who are in favor of controlling their population's access to information will not encourage the free distribution of information, regardless of their underlying dogma. So, for example, the multiple burnings of the library of Alexandria was mostly done by Christian groups. Here in the US, communities that vote to close their libraries [or get them closed for them by elected officials] are primarily more conservative in nature in a "no more taxes" sort of way because libraries cost money and an absolute US-style Libertarian perspective is that these sorts of social programs should not be under the umbrella of government. One of the means of population control is through controlling their access to information in other ways so you look at the Great Firewall of China or the underground library movement in Cuba.

tl;dr lots of crappy governments try to limit their population's access to information, it's not limited to any one ideology other than one of control.
posted by jessamyn at 10:33 AM on October 9, 2012 [11 favorites]

Are you saying that people in the US aren't willing to pay more for the same product than people in Thailand?

Not without a law. That seems to be the point.
posted by ChurchHatesTucker at 10:35 AM on October 9, 2012 [4 favorites]

jbickers: "So, let me see if I understand this. Several years ago, I bought a copy of a Clive Barker book off of amazon.co.uk (I live in the US), because I liked the UK cover better. Is the argument here that I'd be breaking the law if I sold it?"

As a layman, I think the infringing act (term?) is solely the importation of the item, not in its resale.

Wait, seriously? How then is Amazon.co.uk (and all the other international Amazons, as well) allowed to sell to people in the U.S. at all? Seems like they'd be target no. 1.
posted by jbickers at 10:37 AM on October 9, 2012 [1 favorite]

List price for Dummit and Foote's Abstract Algebra (which happens to be the Wiley book on the shelf above this computer) is $110. Lang's Algebra (which is sort of comparable) is $80.

Pure devil's advocate question, since I couldn't compare the two books except by which hurt more if dropped on my toe...

The two most recommended Amazon customer reviews for Dummit are 5 stars while the two most recommended reviews for Lang are 4 stars. Similarly, Dummit averages 4 1/2 stars from 52 reviews while Lang averages 4 stars from 25 reviews.

If we are willing to assume from this that Dummit's book is "better" than Lang's, to what extent would Wiley be justified in charging a price premium for it?
posted by Egg Shen at 10:40 AM on October 9, 2012

I'm a librarian at a small state college. Many of our students are very low income. I know for a fact that some have dropped out because their financial aid does not begin to cover the cost of textbooks. Nursing students are having to spend close to $1,000. a semester for the latest edition of their textbooks. They come to me to see if the library has copies of the textbook they need and I have to explain to them that we cannot afford to buy a copy of every single textbook used every semester. I'm often tempted to tell them to borrow one from a friend, take it to local copy shop and make a cheap copy, but I'd get fired if it got back to higher-ups. Besides, the textbooks have codes that give access to other materials. If the Supreme Court rules in favor of Wiley it's ruling in favor of greed and against education for all. But hey, lately that seems to be the American way.
posted by mareli at 10:45 AM on October 9, 2012 [15 favorites]

My understanding of the scenario:

- Person A has his family send him copious quantities of books and resells them in the US for over $1.2M

- Gets caught and tried using a part of the Copyright Act (though other Customs laws may well apply, as he was importing those books specifically for sale).

- Person A's lawyers start going off on the "First Sale Doctrine" and makes it sound like you won't ever be able to sell your old iPhone to your next door neighbor for $50.

- Public outrage.

The SCOTUS has been very strange lately, but this isn't even a question of the First Sale Doctrine, it's a question of who is allowed to import a copyrighted work *specifically for the purpose of resale/profit*.

My prediction: the SCOTUS will probably rule very narrowly that bypassing normal import licenses for the purpose of profit rather than personal use is illegal.

My personal opinion: What the guy did is classical arbitrage, and it's legal for big-ass banks to do it. He should be allowed too. Let the book publisher set prices accordingly, or create actual different editions for different markets if they don't want their profits eaten up by arbitrage.
posted by chimaera at 10:52 AM on October 9, 2012 [7 favorites]

From a few years back; the 12 most expensive college textbooks in America.
posted by Wordshore at 10:55 AM on October 9, 2012 [1 favorite]

I know these people and the answer is resoundingly yes. They tend to be young, attractive women. Apparently people are more inclined to buy things from them.

Sounds like pharmaceutical drug reps, frankly.
posted by KathrynT at 10:56 AM on October 9, 2012 [5 favorites]

My prediction: the SCOTUS will probably rule very narrowly that bypassing normal import licenses for the purpose of profit rather than personal use is illegal.

Not even that. Otherwise there would be collectives or co-ops set up to import at cost.
posted by ChurchHatesTucker at 10:56 AM on October 9, 2012

@Dormant Gorilla — I work at Wiley now. Not in Higher Ed, so I can't talk to your points about saleswomen/girls (which don't surprise me), but it's been my experience that new editions are put out only when we have new material. (I do design work, and some of my titles are textbooks.) Not saying you're lying, but take this as another anecdotal data point.

Also, you've been gone for eight years, so you have no idea how Wiley is responding to the "whole 'internet' thing" at this point. Wiley is, like many/most large publishing companies, running toward the e-future with a lot of enforced enthusiasm, bordering on panic. From what I gather, Wiley's doing alright with ebook sales and figuring out new ways to "monetize" (hate that word) its intellectual property (previously known as "books"). It's a bit like turning an oil tanker, of course.

Still, I've worked at several publishing companies, and none of the behavior you're relaying smacks of anything new under the sun. Not saying it's right. But "Fuck Wiley" is pretty strong language.

As to this lawsuit... I think Wiley has a point. Not being versed in the law, it seems like a fucking quagmire of a problem and I'm glad I don't have to solve it.
posted by papercake at 10:57 AM on October 9, 2012 [4 favorites]

(I've found Wiley's textbooks to be the worst. I had one years ago that was full of errors. Not typos, I mean actually non-functional code.

When I was first learning Java I used a book that was full of errors and the code just wouldn't work. The most satisfaction I've gotten from programming was figuring out the errors and correcting them myself... but of course, this was hello world type stuff, so it was pretty simple. How the author got the code wrong for a hello world-level program is just baffling.
posted by Huck500 at 10:59 AM on October 9, 2012 [2 favorites]

"This is, of course, precisely the logic behind outsourcing: "if we can find workers willing to do this work cheaper elsewhere, then the US workers are just being greedy demanding a US living wage."

It's interesting to see how strongly US Mefites will rally behind a "buy America first" appeal in general terms: that we ought to be willing to pay a premium to support living wages in a high-cost economy. But when it comes down to specific cases...well, who wants to pay more for widget X or textbook Y just because it costs more to pay printers, truck drivers, warehouse workers, inventory clerks, bookshop employees etc. etc. in the US than in Thailand?"

I know this is supposed to be some sort of gotcha, but you're wrong about both logic and my personal feelings about globalization. Basically, the real answer is pretty complicated, and you're trying essentially a dishonest reduction.

1) Labor is not, strictly speaking, goods. You can't just ship a worker halfway around the globe and end up with the same productivity, and a lot of the reason why workers cost more in the developed world is because we recognize that the government should protect against undesirable externalities, e.g. safe working conditions because we don't want people mangled. That's not greed, that's a good use of government.

2) That said, if a factory can produce a widget with the exact same labor and environmental protections but at a lower price due to local costs, that's a good thing, whether it's here or in Thailand. That lowers the cost and frees up more resources to put towards other things. In the main, complaints about globalization should focus on the qualitative differences and the external costs of outsourcing, not the reflexive protectionism of capitalist nationalism.

3) I'm not really a "buy America first" person so much as, generally, a "Buy Local" person. But the distinction comes because I tend to find that locally produced things are more of a value for me than distantly produced things — but the idea that somehow Wiley is local when a back-end distribution of their same books is not is a bit farcical.

4) Again, when you have an arbitrage opportunity where global production meets local markets, it seems silly to insist that the American price is the moral, normal one and the Thai price is artificially deflated. If Wiley is losing money from imported books, they're free to lower their price in order to capture more of that market. Instead, they think it's better to indulge in a little luxury signaling with their price, and I'm not sure why that should be protected rather than the basic property right of people to sell what they've bought legally.
posted by klangklangston at 11:00 AM on October 9, 2012 [4 favorites]

jessamyn: "Here in the US, communities that vote to close their libraries [or get them closed for them by elected officials] are primarily more conservative in nature in a "no more taxes" sort of way because libraries cost money"

Troy Michigan really turned this around, by the way. (hat tip to pg).
posted by boo_radley at 11:03 AM on October 9, 2012 [1 favorite]

Does Wiley actually print the books in the us?
posted by empath at 11:03 AM on October 9, 2012

...Ben Franklin, who believed that for democracy to survive we need an educated and informed public.

Not that public libraries were thick on the US ground in the 18th century. Or even the nineteenths. Then too, Franklin's Library Company was more a private affair. It required members to chip in before joining up - putting their money where their mouths were, so to speak. Non-member borrowers had to leave a deposit if they wanted to take a book home.

Then too, Franklin's Library Company carried books not of the sort that you tend to find in public libraries these days. Not a lot of disposable best selling fiction, that is to say. Some, but a minority - unlike the place I borrow where the public has spoken and the non-fiction has shrunk in favor of Danielle Steel and James Patterson.

Sorry, just stirring the pot a bit. Carry on with the legal bits.

Imported goods should sell everywhere at the cost of the item at point of production.

Production of books occurs in various places - written and edited and designed in say, the US, printed in any number of places.

Are you saying that people in the US aren't willing to pay more for the same product than people in Thailand?

Not without a law. That seems to be the point.

Clearly they are because they do. Law has nothing to do with it. Of course we would like to pay less - who wouldn't? Hell, I'd like to pay Thailand prices for a lot of things. (Wouldn't want their pay scale of course.)

Anyway, the only reason Thailand gets the books at all is because the US market has made the initial investment worth while. Thailand is gravy, but not gravy that can afford to pay Porterhouse prices. Conversely, the question becomes, can publishers continue to operate if everyone gets to pay only gravy prices? I'm agnostic until I see the books, though no doubt the more choleric here will say of course. (That said, Wiley's doing pretty well these past few hard years, I see, though their ROE is maybe half that of Apple. For whatever that's worth.)
posted by IndigoJones at 11:06 AM on October 9, 2012 [1 favorite]

Papercake- yup, definitely, like I said I haven't been there in a while. The institutional mindset while I was there points towards this sort of thing not changing all that fast, but I have no idea how they've been responding recently.

I can say that I was working on anatomy textbooks, among other things, and by the time I left the new edition cycle was a year to a year and a half long. And nobody was exactly discovering new bones all the time. I get what you're saying, but part of the issue might be that you weren't being given any design work for the new editions because nothing was being newly designed for these books. The problem is that the "new material" that warrants a reprint can be anything the exec editor can come up with, right down to rephrasing the questions in the supplemental material or changing the captions on the art.

I don't think any of what they do is unique to Wiley, so "fuck college textbook publishers" might be more accurate and fair. However, I've only seen it firsthand at one place. Their attitude towards the students was uniformly dismissive to a pretty nasty degree. Maybe they've changed- I hope so. But that's what it used to be like.
posted by Dormant Gorilla at 11:15 AM on October 9, 2012 [1 favorite]

"Clearly they are because they do. Law has nothing to do with it. Of course we would like to pay less - who wouldn't? Hell, I'd like to pay Thailand prices for a lot of things. (Wouldn't want their pay scale of course.) "

That's rather circular — they do now, but a law exists now to impel them to do so. Saying that they would without the law based on the fact that they do now with the law seems unsustainable.
posted by klangklangston at 11:16 AM on October 9, 2012 [1 favorite]

If we are willing to assume from this that Dummit's book is "better" than Lang's, to what extent would Wiley be justified in charging a price premium for it?

Perhaps if it were widely held to have 137.5% the desirability of Lang, which I don't think is the case. (They're probably equal in the drop on foot category, though Lang might have a paperback printing in the US now.)
posted by hoyland at 11:16 AM on October 9, 2012 [1 favorite]

Egg Shen: "Is the lady's attractiveness a given? She's an academia "booth babe"?"

I don't want to be... whatever... but academic book salespeople are typically very attractive. And not a booth babe, because that person will also be making a percentage + bonus on sales. The textbook market is tremendously competitive in a large variety of metrics.

Maybe this has changed, but I worked in editorial for textbook publishing right out of college, and met a lot of our sales reps. They were regular polished sales reps, but weren't particularly young at all and definitely not just young women. I was very young and a woman so would have noticed. I felt like they were all older than me. Maybe this is Wiley specific? I didn't work for them.
posted by sweetkid at 11:18 AM on October 9, 2012

Lord loves a workin' man, don't trust Wiley, see a doctor and get rid of it.
posted by dr_dank at 11:18 AM on October 9, 2012

Thailand is gravy, but not gravy that can afford to pay Porterhouse prices.

Once you pay them to make it it is.

Fuck, I'm going to start seeding textbooks on general principle.
posted by ChurchHatesTucker at 11:23 AM on October 9, 2012 [3 favorites]

Parallel imports, because fuck you, that's why.
posted by Xoebe at 11:24 AM on October 9, 2012 [2 favorites]

Sounds like pharmaceutical drug reps, frankly.

It struck me that there are at least a few parallels between textbook and drug industries: "production costs" being trotted out as the reason for high prices, only to have it pointed out that the companies aren't losing money selling at reduced prices in the developing world (because, otherwise, why would they?); developed-world monopolies enforced by similar IP laws; and the encouragement of the research/writers to develop new packagings/editions to drive future sales.

Just like buying from pharmacies abroad, importing texts undermines an artificially-elevated market that benefits only the big publishers.
posted by bonehead at 11:28 AM on October 9, 2012 [10 favorites]

dios: "dios' law:"

*tsk* ex lingua Latina, decuria dios.
posted by boo_radley at 11:28 AM on October 9, 2012

Fuck, I'm going to start seeding textbooks on general principle.

The real question, though, is what's good anymore for finding books? library.nu used to be my go-to whenever I was too feeling too lazy to walk across campus to the real library, but since that shuttered I've been at the mercy of my college's shitty online e-reader. (It tells you something about publishers' priorities when their legitimate, and no doubt extremely expensive, database system is less user-friendly and far less exhaustive than a network of illegal file-lockers...)
posted by fifthrider at 11:28 AM on October 9, 2012

And since I think I was oversimple with the "Fuck Wiley" bit (most of my animus actually comes through how they handle journal titles), I think I can broaden it to a general statement that as firms become larger, their regard for consumers wanes and they justify more dubious attempts to hold market share by leveraging their size to influence law. I think that leads to perverse law that exists not for justice, but for the advantage of the biggest.
posted by klangklangston at 11:30 AM on October 9, 2012 [1 favorite]

what's good anymore for finding books?

You could find, for example, Campbell's Biology, Brown's Chemistry: The Central Science, and Myers' Psychology here.
posted by Egg Shen at 11:33 AM on October 9, 2012 [1 favorite]

Some people also do not like the main platforms for distributing library copies of digital books, like Overdrive.

I believe this statement should count as: Winner! Understatement of the year.

Overdrive and the other DRM solutions publishers force libraries to use are absolutely horrid. Imagine combining the pain of Online Public Access Catalogs (OPACs), Electronic Journal Catalogs and DRM systems and then unleashing it upon the public.
posted by formless at 11:36 AM on October 9, 2012 [7 favorites]

It is not only not "entirely accurate" but is the biggest load of bullshit I've read in a long, long time (and I'm a lawyer, so I read a lot of bullshit). There is absolutely zero chance of the United States Supreme Court bringing an end to public libraries. For crying out loud. What, do you think the Supremes have been looking at the building next door to their office and thinking how nice it would be if it were left vacant for them to use for a nice game of paintball?

Notwithstanding the horrible reporting in this story, and the general hand-wringing happening in this thread, I find it telling that the first reaction we collectively have to being told that the Supreme Court is about to hear a case on something mundane is "How much damage can those 5 idiots do this time?" Because, if the last five years are any example, if you give the Roberts court the slightest bit of latitude, they'll come back with a 5-4 ruling that strikes down political spending, free speech, or grandma's apple pie, if that's what Scalia has decided he thinks 'strict constructionism' means today. They do a remarkable job of acting like Bond villains.
posted by Mayor West at 11:41 AM on October 9, 2012 [6 favorites]

I can promise you that the Wiley family (on the board to this day since 1807 and still in the office every day) are not sittin on top of mountains of gold...

This is true of at least one popular college text book author.
posted by klausman at 11:56 AM on October 9, 2012 [1 favorite]

[I did not mean to imply that Stewart is screaming SCREW THE POOR, but just that he appears to be quite wealthy from selling books. (I should have read the quote entirely before actually quoting it.)]
posted by klausman at 11:58 AM on October 9, 2012

This is not something that can destroy public libraries. There is a circuit split on the question of the relationship of foreign sales to the Copyright Act.

from SCOTUSBlog:

The copyright case the Court agreed to decide (with the case going over to the next Term) gives the Court a fresh opportunity to sort out a conflict among the federal appeals courts over what is called the “first-sale doctrine.” That is a concept that allows a buyer of a copyrighted work, in a legal transaction, to dispose of that copy without the approval of the owner of the copyright. Federal copyright law, however, does not define that doctrine, so it has been up to the courts to fill in its meaning, and they disagree.

The outcome of the case is expected to be of major importance to the future of the so-called “gray market” for goods — items bought overseas at prices below their level in the U.S., and then returned to the U.S. for resale. The market for such goods runs into the tens of millions of dollars annually. At issue in the newly granted case is a practice of buying college textbooks in their cheaper editions abroad, then bringing them back to sell to students. This is done under the first-sale doctrine, but copyright owners insist that federal law does not allow it.

With the burgeoning of commercial transactions on the Internet, the “gray market” has become even more active. Indeed, a number of companies doing business on the Internet joined in urging the Court to hear the appeal of a small-time textbook entrepreneur, Supap Kirtsaeng. A native of Thailand, he came to the U.S. to attend college. When entering graduate school in California, he decided he could help pay for his education by becoming a textbook dealer.

His family would buy overseas editions of textbooks in Thailand, at fairly low prices, and send them to him. He re-sold them to students and made a small profit. The publisher of those works, John Wiley & Sons, had sold the books overseas through an Asian subsidiary, with 10 percent of the proceeds going to the parent company. Overall, Kirtsaeng sold $37,000 worth of Wiley textbooks. Wiley sued him in federal court in New York, and Kirtsaeng sought to rely on the first-sale doctrine. A federal judge rejected the claim, concluding that the doctrine does not apply to goods made in a foreign country.

The jury found Kirtsaeng liable for infringing copyright on eight books, and found that it was an intentional violation of Wiley’s copyright. It awarded Wiley $75,000 in damages for each book, for a total of $600,000. The Second Circuit Court upheld the award, agreeing that the doctrine does not apply to a foreign-made product.

There is now a three-way split among the Circuit Courts: the Second Circuit declaring that foreign-made works can never be resold in the U.S. without the copyright owner’s consent, the Ninth Circuit ruling that such a foreign-made product sometimes can be sold in the U.S. without permission, but only after the owner has approved an earlier sale inside the U.S., and the Third Circuit deciding that such a product can always be re-sold without permission, so long as the copyright owner had authorized the first sale that occurred overseas.

It was the Ninth Circuit’s approach that the Supreme Court had agreed to review two years ago, in the case of Costco Wholesale v. Omega. Justice Kagan was recused from that case (docket 08-1423), and the other eight Justices split 4-4. That always results in affirming the lower court decision at issue, but without setting a precedent. The case was affirmed by the split vote on December 13, 2010.

The Court has now taken on the Kirtsaeng case, to try again. Justice Kagan will be taking part.

Deep breaths, people, deep breaths.

posted by Ironmouth at 12:00 PM on October 9, 2012 [3 favorites]

The Second Circuit Court upheld the award, agreeing that the doctrine does not apply to a foreign-made product.

How the fuck does this make any sense?! You have property rights, unless it was made overseas?
posted by ChurchHatesTucker at 12:08 PM on October 9, 2012 [3 favorites]

I think the bigger issue here is that poor people are buying books!
posted by blue_beetle at 12:13 PM on October 9, 2012

Obviously the answer is that we should just make everything digital. That would make it a reasonable price for the students (cheaper than used, even)

If you look at the costs of digital editions, this is not true.

I've bought grey market textbooks and I would do it again. If the university expects students to shell out a grand per semester for poorly edited, badly designed books for the love of it they're higher than I usually assume them to be.
posted by winna at 12:15 PM on October 9, 2012 [3 favorites]

How the fuck does this make any sense?! You have property rights, unless it was made overseas?

... and think hard about this: how much of what you ostensibly own was made overseas?

Because if the decision goes the wrong way, there's a pretty strong incentive to never make anything in the U.S.
posted by mhoye at 12:18 PM on October 9, 2012 [2 favorites]

Oh, you're using "willing" in the faintly ridiculous economist's sense. Textbooks are hardly a free market. People are generally forced to buy specific ones if they want an education, and these prices are enforced by law and near-monopoly. Your argument makes no sense.

Also, avaxhome sucks. Any link more than a handful of months old is generally broken thanks to file hosting site takedowns. In fact, almost every site left sucks, and the availability of ebooks online has almost completely dried up, as far as I can see.
posted by adamdschneider at 12:27 PM on October 9, 2012 [4 favorites]

Private trackers for the win!
posted by ChurchHatesTucker at 12:31 PM on October 9, 2012 [1 favorite]

There has always been a political dimension to filesharing. Sure, for many (most?) participants it often was all about getting free stuff, but for a great many people it very definitely has been political. Perhaps the most famous example are the founding members of TPB, who often spoke of this.

Oh yeah, it was dismissed out of hand by critics, as just so much hypocrisy from freeloaders, but then, something funny happened: pirate parties were formed and entered the political landscape.

Is there any doubt, that IP regimes have vast political implications that affect us today and will continue to transform eduction, the economy and politics?

So why wouldn't one expect actual political parties formed around IP issues?

The old structures will either adapt or die. Meanwhile, people will find their own defense systems against a system that is broken. Personally, I see no virtue in only defending the right of textbook publishers to extort students and force up the costs of education to the point where poor people can't afford it. There's got to be a balance. Until that balance is found, I'm glad people have the ability to defend themselves, even if it's outside of the (bad) law.

Yes, it is political.
posted by VikingSword at 12:36 PM on October 9, 2012 [9 favorites]

I've always been saddened by how faculty in higher education refuses to fight for the rights of adjuncts, support staff, TAs, and students. These are ostensibly some of the brightest, most highly trained, intelligent people in their field, in positions of relative power within their institutions, and yet they seem more than willing to say "fuck you, got mine" the second they get tenure.

I have never heard of a faculty striking to raise the salary of a janitor, or reduce the workload of a TA. (I would love to see stories about this happening, if it ever has in the history of the world.)

The related bit of this is that professors write the textbooks in the first place, but instead of using that power for good, they sell out as soon as possible for another publishing credit and the pittance tossed at their feet by the robber barons who fleece their students. The professors have ALL OF THE KNOWLEDGE necessary to create the texts, quality self publishing options have existed for decades, and a hell of a lot of universities run their own presses, giving them on-site practical knowledge and equipment.

No one professor is at fault, but collectively they have failed to act, and they share a collective moral burden because of it. I believe there's some work on this going on in California, but it's being driven by legislative processes. University faculty should have simply recognized the problem and fixed it long before now.

I don't have much to say about the case, but I am pretty opinionated about textbooks, apparently.
posted by jsturgill at 12:40 PM on October 9, 2012 [9 favorites]

Could you start folding some of the pages and claim you are selling origami art? I'm a bit serious about this - whether you could alter the book in some way to claim it is something else and continue to sell it. Maybe add gold-leafing.
posted by dances_with_sneetches at 12:47 PM on October 9, 2012

Also, avaxhome sucks. Any link more than a handful of months old is generally broken thanks to file hosting site takedowns.

Nothing avaxhome can do about the takedowns - which do seem to be accelerating. Rapidshare and Depositfile links seem to be more durable than others.
posted by Egg Shen at 12:47 PM on October 9, 2012

"Sale" is sale ... barter is barter.
posted by Twang at 12:59 PM on October 9, 2012

Even if they win, they will still lose. Textbooks are all over the Internet if you know where to look. If they want to lose less badly, they need to change.

And the stuff that shows up as torrents first is invariably the books that are insanely overpriced.
posted by mecran01 at 1:00 PM on October 9, 2012

This is true of at least one popular college text book author.

I've been in that house! Twice, actually. It's gorgeous. I suspect Dr. Stewart is the exception, rather than the rule when it comes to the rewards of textbook authorship though.
posted by sevenyearlurk at 1:05 PM on October 9, 2012

It looks like price discrimination is getting harder to enforce within the U.S. as well.

Taken to the extreme, one can imagine a future where companies can charge a different price for each customer but customers are not given the right to resell. Kind of the worst combination of free market and protectionism.

The first half is already true, and probably has been for a while. In the digital world, Amazon has been playing with price variation factors for over a decade, including increased prices for long-term customers. This is legal, unless the price differences are based on certain legal categories as race, religion, national origin or gender.

I'm sure this could be applied to digital goods, if it isn't already happening. To be honest, I'm not sure how paying more for a physical good is any better than paying more for a digital, non-transferable good. After all, it's not like you can get more money back if you paid more in the first place, and with digital goods, you're out the money any way it goes.
posted by filthy light thief at 1:17 PM on October 9, 2012

I see a lot of textbook sales reps, and I'd say they are about 50:50 male to female, though probably all are fairly attractive, and relatively young. But we are getting close to a 50:50 M:F professor ratio, here at least, so it makes sense they are not sending booth babes to seduce all my female colleagues.

Someone mentioned the changing editions -- it is such bullshit to see that almost nothing changes edition to edition. The textbook I used had less than 8 pages of new material in the most recent edition, out of 400 pages, and that was not actually new findings in the field but just a few more examples of stuff we already knew.

So it's pretty clear that the new editions are designed to flush the old editions into premature obsolesence. I mean, it is so fucking clear it is laughable.

Luckily our bookstore will order in used copies of older editions. Their margin on these is actually better so they like it. And I definitely examine all new textbooks from a cost-benefit analysis -- the first thing I look at is the price, and most of them end up being shelved on that alone.
posted by Rumple at 1:22 PM on October 9, 2012 [1 favorite]

I'm sure this could be applied to digital goods, if it isn't already happening.

Well, I can say that their E-book store has an annoying habit of deciding what tax rate you pay based on your IP lookup, rather than on your billing address, the national site you're using, or the nationality of your credit card. US card, US billing address, US publisher, European IP? Enjoy paying VAT anyway...
posted by fifthrider at 1:24 PM on October 9, 2012

You'd think textbooks wouldn't be that expensive to produce - just a few years of salary for a couple high-end professors, but that's still only a few million dollars at most. You'd think a bunch of the larger universities could get together and just commission the writing of a bunch of them, and then distribute them to their students for cheap.
posted by Mitrovarr at 1:31 PM on October 9, 2012

the price the buyer pays for the book really isn't that well connected to the production cost at all.

Duh? Books are like pharmaceuticals. Most of the cost is in producing the content, not in printing the books.

Once a textbook has been created for schools in the US, it doesn't cost much more to also sell cheaper copies in other markets. So they're not selling the copies in poor countries at a loss, so long as they recoup their development costs with the more expensive textbooks in the rich countries.
posted by straight at 1:44 PM on October 9, 2012 [1 favorite]

Most of the cost is in producing the content, not in printing the books.

Um, I think you might overestimate how much is being made by the authors vs. the publisher. For some texts, the authors themselves are paid nothing and the editors make only a small amount for their efforts.
posted by Mental Wimp at 2:29 PM on October 9, 2012

Duh? Books are like pharmaceuticals. Most of the cost is in producing the content, not in printing the books.

Once a textbook has been created for schools in the US, it doesn't cost much more to also sell cheaper copies in other markets. So they're not selling the copies in poor countries at a loss, so long as they recoup their development costs with the more expensive textbooks in the rich countries.

Actually they're like journal articles, in that they cost next to nothing to produce the content either. Development costs are very low and mostly already recouped.
posted by jsturgill at 2:34 PM on October 9, 2012 [1 favorite]

If the first authorized sale occurs in the United States then it can be made in Timbucktoo for all the law cares. If the first authorized sale occurs outside the United States but with the permission of the copyright owner 109(a) still applies. Journalists are idiots.
posted by Talez at 12:00 PM on October 9

Step One: Game software manufacturer that doesn't want used copies to exist offers all of its stock of SuperDudes 2013 to outside of the US through a "retail facility" in Taiwan.
Step Two: Major US retailers purchases them "at retail" overseas.
Step Three: They sell them in the US.

Guess what? No one who has a legal copy in the US then has any right to sell the game, ever. See how that works? Now do this with every single physical item worth more than $1 ever (ok, fine, limit to those produced in Asia). Game over.
posted by andreaazure at 2:40 PM on October 9, 2012 [1 favorite]

> The law is clear. The United States doesn't allow for parallel imports.

The Wikipedia article you linked to says otherwise:

"In the United States, legal precedent indicates that parallel importation is legal,[5] although no definitive laws exist on the matter."

This is the cite they give.

QUALITY KING DISTRIBUTORS, INC. v. L'ANZA RESEARCH INTERNATIONAL, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

I've spent 15 minutes trying to parse what Justice Stevens' wrote for the majority re first sale, but it's not clear to me.
posted by zippy at 2:41 PM on October 9, 2012

Not to mention that the professors that write them frequently just get screwed over, period. I had an economics professor, the very best I've had in that field, who wrote an entire intermediate microeconomics textbook, for a publisher that shall remain nameless, only to have them cancel the project entirely. I would be very surprised indeed if they paid him much of anything. More likely, he didn't get anything at all for his troubles.

(Considering that he retained copyright to the work and gleefully provided us all with a .pdf of the prepress proof gratis, I get the feeling that the latter was the case.)
posted by fifthrider at 2:42 PM on October 9, 2012

So far as I can tell, not a single person here as actually gotten the legal issue right. This case is about whether copyright owners can prevent someone from re-selling something they bought overseas in the united states.

This case is NOT about whether a copyright holder can prevent someone from re-selling something they bought in the United States. The only way that the parade of horrors everyone is wailing about here will come about is if every copyright owner stops selling books in the united states and instead forces people to fly overseas in order to purchase the book / ipad / CD they want.
posted by anewnadir at 2:42 PM on October 9, 2012 [1 favorite]

Actually they're like journal articles, in that they cost next to nothing to produce the content either. Development costs are very low and mostly already recouped.
posted by jsturgill at 2:34 PM

As someone involved with creating the budgets for developing textbooks, I wish this were the case. It isn't.
posted by chatongriffes at 2:44 PM on October 9, 2012

The only way that the parade of horrors everyone is wailing about here will come about is if every copyright owner stops selling books in the united states and instead forces people to fly overseas in order to purchase the book / ipad / CD they want.

Thanks to the Internet, however, the connection of the physical location of the purchaser and the location of the seller to the particular jurisdiction in which the sale is treated as having taken place is getting increasingly unclear. (See my comment earlier about VAT and Amazon, for instance: just using a simple SSH proxy can actually change the sale price of a product.)

I can very easily imagine a situation where a company might manufacture its product overseas, sell it online, and treat that sale as having taken place "overseas" for the purpose of determining first-sale. After all, there are tremendous incentives for companies to try to crush the secondary market for their products.
posted by fifthrider at 2:49 PM on October 9, 2012 [1 favorite]

It would be very interesting if students on campuses across the U.S. got organized (in this brave new world of Social Media & Arab Springs) and decided to agitate (in a big way) for a No Wiley Books campus. Even better if the spotlight caused instructors (or whole campuses or programs?) to advertise their classes as No Wiley Books classes/programs/campuses.

Who says there is no such thing as bad publicity?
posted by spock at 2:52 PM on October 9, 2012

Most of the cost is in producing the content, not in printing the books.

Um, I think you might overestimate how much is being made by the authors vs. the publisher. For some texts, the authors themselves are paid nothing and the editors make only a small amount for their efforts.

posted by Mental Wimp at 2:29 PM

Mental Wimp, I am a textbook editor. While it is possible that with some books, the authors are not paid, that is not the case with text published by a major house. And while my individual salary is laughable, there's a huge team of people making the book who all like to eat. That adds up.

Add onto that the fact that the content itself costs money. We pay through the nose for photo rights. We pay tons for artists to create scientific illustrations for us. The designers get a cut. And the cost of the open access website with all kinds of videos and extra learning tools are folded into the book development budget as well. Sometimes we even take a risk and do all this for a brand new first edition that may or may not succeed.

This is not to say that the publisher doesn't make a profit on these--they do and I'm sometimes embarrassed by the margin. But it's not entirely without investment.
posted by chatongriffes at 2:54 PM on October 9, 2012 [2 favorites]

Chatongriffes, how many of the changes that take place from year to year are necessary, particularly in foundational/survey textbooks? How much time is spent on layout revision and alterations that don't impact the actual information in the text?

And how much of it couldn't be a small team at a university press with their costs covered by a national coalition of universities and colleges, using information provided by field experts compensated for their time with a lighter course load for one or two semesters while they worked on the project?

Would love to be convinced of the necessity of these costs.

On preview: Colleges also have plenty of capable (if not exactly world-shattering) artists, designers, and illustrators working for them who should be (in a moral sense) willing to contribute public domain illustrations and photographs as necessary, again in return for lighter course loads which the university can easily absorb. Particularly when that cost is shared on a rotating basis among all of the universities and colleges participating in the coalition.
posted by jsturgill at 2:57 PM on October 9, 2012 [2 favorites]

There is a law that came down when Obama was doing a lot of work on educational costs that requires a textbook to update at least 30% of the content in order to come out with a new edition. That has been our directive for the past 4 years. While that's not a huge chunk of time in the grand scheme of things, it is the case now. I'm lucky enough to work on foundational textbooks for fields like genetics where there really are new discoveries that warrant changes to the textbooks. All of the books I work on are on a minimum 3 year cycle of revisions. I would have more trouble justifying history textbooks.

I do agree that a small university press would be able to create perfectly adequate textbooks, especially if they were to round up their resources from folks in other departments to help with things like design and editing. It would be really cool and I would love to collaborate on something like that. Unfortunately, I don't really see it happening any kind of large scale.

In the mean time, I think there is still a need for content that is vetted and organized in a pedagogically effective way.
posted by chatongriffes at 3:08 PM on October 9, 2012 [1 favorite]

Is there a way to actually watch the oral arguments, or do you have to be in person?
posted by Autumn at 3:10 PM on October 9, 2012

Colleges also have plenty of capable (if not exactly world-shattering) artists, designers, and illustrators...willing to contribute public domain illustrations and photographs as necessary

Who, the yearbook team?
posted by casarkos at 3:18 PM on October 9, 2012 [3 favorites]

No, the art department.

Hell, there are even entire universities devoted to nothing but art! If you can believe it.
posted by jsturgill at 3:21 PM on October 9, 2012 [2 favorites]

Is there a way to actually watch the oral arguments, or do you have to be in person?

You have to be there in person. No cameras/recordings in the court (for broadcast, that is; they may record for transcription purposes).
posted by rtha at 3:25 PM on October 9, 2012

jsturgill, I'm curious: how much experience do you have in publishing and/or in academia?
posted by scody at 3:33 PM on October 9, 2012 [3 favorites]

anewnadir said:

So far as I can tell, not a single person here as actually gotten the legal issue right. This case is about whether copyright owners can prevent someone from re-selling something they bought overseas in the united states.

The opinion actually does make the distinction, holding specifically (emphasis mine):

To summarize, we hold that (1) the first sale doctrine does not apply to works manufactured outside of the United States

That broad holding isn't limited to goods purchased overseas; maybe you should reassess whether you got the legal issues right.
posted by karson at 3:37 PM on October 9, 2012 [2 favorites]

I cant' seem to access the SCOTUS blog page, so maybe they explain this, but how does the math add up on "Overall, Kirtsaeng sold $37,000 worth of Wiley textbooks. [...] The jury found Kirtsaeng liable for infringing copyright on eight books, and found that it was an intentional violation of Wiley’s copyright. It awarded Wiley $75,000 in damages for each book, for a total of $600,000."

Does it mean that he sold many copies ($37,000 worth) of eight different titles, and they awarded $75,000 per title? Or did he sell many different books and many different titles ($37,000 worth), but the jury decided only eight of them were copyright violoations?

Because what that phrasing makes it sound like is that he sold eight books, each of which normally costs $4,625 (!), and the jury made him pay $75,000 (!) for each in damages. Which would make no sense at all.

Though I'm not sure it makes less sense than making him pay $600k in damages for $37k worth of books even under the other interpretations. What's the extra money for? Wiley's pain and suffering? Punitive damages to deter others?

And anyway, was it $37k in profits for the guy, or $37k in total value of the books? That would seem to be a big difference.

Regardless of the details, I agree with those who say this does represent a threat to the right of first sale, since all it requires is that publishers who want to control or forbid all subsequent sales of their works in the US make sure that they first sell them to an Asian importing company, who will agree to import them to the US market. The publishers can stamp each book imported in this way with a message that says it is unlawful to resell them, and if the Supreme Court agrees with Wiley's interpretation of the law, they would be right in saying so. It would be awfully tempting for publishers to involve an importer in this way, to eliminate competition from used editions of their own works.
posted by OnceUponATime at 3:42 PM on October 9, 2012

Actually, audio recordings of oral arguments are permitted and published. Don't know where best to find them on a case-by-case basis, but I'd start at SCOTUS-blog.
posted by Navelgazer at 3:45 PM on October 9, 2012 [1 favorite]

jsturgill: "Hell, there are even entire universities devoted to nothing but art! If you can believe it."

Yes indeed.
posted by boo_radley at 3:45 PM on October 9, 2012

Scody, if my perspective were to be evaluated based on my experience in publishing or teaching college courses, it would be tossed right out. So I hope that's not the case.

Is there any part of the puzzle that I seem to be missing?
posted by jsturgill at 3:45 PM on October 9, 2012

Yes indeed.

I was wondering how long it would take for this link to get posted.

Yeah, fuck our current IP laws. Fuck every last education-impeding, student-punishing, innovator-cudgeling thing about them.
posted by fifthrider at 3:50 PM on October 9, 2012

jsturgill: "Is there any part of the puzzle that I seem to be missing?"

Honestly and without rancor: the idea that the art department would be producing spec commercial work, rather than teaching students about art (which may include photography or etc. suitable for spec commercial work) is not too hot an idea.

My previous comment is to highlight the idea that a really awesome textbook designed by a well meaning art department may just price itself out of existence with licensing fees.
posted by boo_radley at 3:57 PM on October 9, 2012 [1 favorite]

Is there any part of the puzzle that I seem to be missing?

Well, honestly, you seem to be missing a fair amount of the vast complexities of how the publishing industry and academic institutions actually function, and at the same time you don't seem all that interested in concrete information that's being shared with you by people who are in the industry. So I was just curious as to the basis for your rather sweeping pronouncements about what they "should" be doing.
posted by scody at 3:58 PM on October 9, 2012 [2 favorites]

No one professor is at fault, but collectively they have failed to act, and they share a collective moral burden because of it. I believe there's some work on this going on in California, but it's being driven by legislative processes. University faculty should have simply recognized the problem and fixed it long before now.

Have you ever worked at a University? Do you have any idea how they work? The days when faculty directed universities is long past, and money decisions are largely made up of a class of administrators, many of whom would rather not consult with the faculty at all. Of course, many faculty are burned out or buried in their research and nether know nor care, but lots of faculty do and put what efforts they can from what is a surprisingly demanding job to advocate for many of the changes you seem to think they ignore.

My faculty union (which represents all the faculty for collective bargaining but does not have full faculty membership) has supported efforts by part-time faculty to establish a union, pushes back against the university administration on lecturers, and, along with the faculty senate, works to keep the administration honest. So faculty, taken as a whole, are doing quite a lot on these issues, but they do not have the leverage to make these things happen quickly, if at all.

And, at public institutions, even administrations with good intentions (and they do exist, at least some of the time) are hampered by state governments whose first instinct seems to be to try and solve money woes by slashing higher education.

So, if you are looking for someone to blame for the problems of (public) higher education, you might look at yourself and your fellow voters for choosing tax breaks over education. If direct state support of higher education had not been reduced by between a quarter and a half in the last decade, we might not have these problems. It wasn't, after all, the faculty who gutted state schools...

Which doesn't really address the activities of rapacious textbook and journal publishers, but other people seem to be addressing that OK. I think we should be leveraging faculty knowledge and electronic distribution into building local textbooks for our large-size entry-level classes, but that's just me.
posted by GenjiandProust at 4:14 PM on October 9, 2012 [5 favorites]

Additionally, while I have some actual copyright law education, I don't feel qualified to parse the actual legal issues at play here.

I can say that, for policy argument purposes (which isn't likely how the case will be decided, of course) I'm more on the side of Kirtsaeng here, vaguely. His story misrepresents the issue to an extent and that's obviously why he was sought out as the face of this - a student realizing the arbitrage and making a decent but still reasonable profit off of it is a lot more sympathetic than if it were Wiley v. Half.com or something like that. Still...

I'm one of those leftist Mefites accused above of harboring some hypocrisy on this matter. Here's the thing: there are a lot of aspects of a functioning first-world society which I'm very in favor of and which will also inevitably drive up prices. Safety regulations, unions, and yes, IP protections. All of these are good things in general, and I'm sure that they all play a factor in the costs of textbooks, but so do other factors I'm not in favor of.

One is the habit of upper-tier professors writing and using their own textbooks which will often have much more limited press-runs and limited or no resale value, including back to the campus bookstore. While many of my profs at GULC worked to make sure their materials were available digitally for a small fee or else printed in cheap paperback to assuage this issue, others didn't care. Richard Chused, for instance, wrote a godawful "property" textbook which was only applicable to his own awful class and was only available in obscenely expensive hardcover. But there's nothing that the publishing houses can do about this.

The bigger issue that I can see is that textbooks are one of several goods for which the market bears a grossly inflated cost due to context. Like with military spending, home and auto purchases, or anything related to weddings, textbooks get a market boost from the understood expenses involved with higher education. People expect to dump a hell of a lot of costs into college and don't really understand where that money is going, and that is exploitable, not to even mention the limited "choice" that consumers have in the matter.

The problem here comes from the fact that non-U.S. markets won't bear those extra markups, but publishers will still sell the books in those places based on what those markets will bear, as has been said here over and over. And they aren't selling them at a loss, though to an extent they are certainly using the U.S. market to cover editing and development costs.

So the question then becomes one of whether it is so important to protect a market imbalance exploiting and feeding a system that leads to artificial and ever-rising higher education costs from arbitrage. Like with pharmaceuticals, sure, there's a case to be made. The real cost is in development rather than production and that has to be borne somewhere while the books or the drugs - cheap to actually produce - go everywhere they are needed. I just don't find it a particularly compelling argument, particularly the part that takes advantage of the U.S. education (and health care) systems to do it and then fights like hell to shut down attempts to get the goods at the affordable prices available elsewhere.

Policy-wise, I'm not in favor of that.
posted by Navelgazer at 4:19 PM on October 9, 2012 [3 favorites]

Well, honestly, you seem to be missing a fair amount of the vast complexities of how the publishing industry and academic institutions actually function, and at the same time you don't seem all that interested in concrete information that's being shared with you by people who are in the industry. So I was just curious as to the basis for your rather sweeping pronouncements about what they "should" be doing.

Totally fair characterization of what I've said, but I do believe that we're gleaning different information from the reaction to my sweeping generalizations. Here's what stood out to me from what the industry professional shared with us:

I do agree that a small university press would be able to create perfectly adequate textbooks, especially if they were to round up their resources from folks in other departments to help with things like design and editing. It would be really cool and I would love to collaborate on something like that. Unfortunately, I don't really see it happening any kind of large scale.

My thinking is that this "should" happen on a large scale. Should is a loaded term, is totally subjective, etc. But it's my perspective, and it's within the realm of "could feasibly happen."

I don't have extensive personal experience in academia or publishing, but I do hang out with a university librarian, two department heads at two different local universities, and a couple of professors (all humanities, so severely lacking in insight of business, art, STEM, administration, etc.). Institutions of higher ed, particularly the elite ones but even the mid-level colleges, have plenty of resources that could be devoted to this sort of project, particularly as part of a consortium sharing resources and spreading out the cost.

By resources, I am mainly talking about course load, which always has some amount of wiggle room. Universities have to decide who gets a 4/4 and who gets a 2/3 course load, or whatever the split might be. Some of that leeway could absolutely, I believe, be turned into incentive for textbook production rather than continued primary research or whatever. That is particularly true if working on a public, quality textbook were treated as an equivalent accomplishment as journal publications or being the author of a chapter in a for-profit textbook.

It's just not a priority for any institution of higher ed, even though it is another real barrier that disenfranchises certain sections of the population and increases everyone's financial burden.

...producing spec commercial work...

Why do you think I'm talking about spec work? I never said that.
posted by jsturgill at 4:34 PM on October 9, 2012

> I'm no legal expert, and on the surface I agree that this seems to have legal precedent unrelated to first-sale doctrine. But if that's so, can someone explain why the Supreme Court is even bothering to take on this case?

I am also not a legal expert (thought I play one on TV), but this part of the Quality King v D'Anza (findlaw) ruling cited above, the Supreme Court explicitly states that it is not their place to rule on the grey market / parallel import aspects of that case with respect to the Copyright Act seems interesting.

Here's Justice Stevens writing for the majority:

"We are not at all sure that ["grey market" and "parallel importing"] appropriately describe the consequences of an American manufacturer's decision to limit its promotional efforts to the domestic market and to sell its products abroad at discounted prices that are so low that its foreign distributors can compete in the domestic market. But even if they do, whether or not we think it would be wise policy to provide statutory protection for such price discrimination is not a matter that is relevant to our duty to interpret the text of the Copyright Act.

(emphasis mine)
posted by zippy at 4:51 PM on October 9, 2012

jsturgill, in an ideal world, it would be nice to see the sort of university-disseminated knowledge you're describing. It's not impossible. But even if that is the case, I don't think the textbooks created by the professors as you describe would be able to be used beyond their own schools unless there is somehow a huge coalition of schools collaborating. It is, in my experience, extremely difficult to get a large group of very smart, very opinionated people to collaborate across time zones, especially when they have so many other responsibilities. My loyalties are more with book making than any particular big publisher and I'd be happy to work in such a world, but it seems unlikely unless the university environment changes drastically.

As a publishing house devoted specifically to creating these books, we also have resources that these professors wouldn't. We have the aforementioned pretty sales force to make sure that everyone knows the book is an option. This prevents every university from having to duplicate the same efforts for say, an Intro to Biology book. We have the funding and legal representatives to get rights to use copyrighted images and studies fairly. We have a market development team to test the pedagogical and scientific effectiveness of everything we create.

Giganto publishers are not a perfect solution, but I believe that our existence does currently serve a purpose.
posted by chatongriffes at 5:01 PM on October 9, 2012

Well, honestly, you seem to be missing a fair amount of the vast complexities of how the publishing industry and academic institutions actually function

Econ 101: Nobody Cares About The Fixed Costs Of Your Book, Movie, Whatever
posted by ChurchHatesTucker at 5:10 PM on October 9, 2012 [2 favorites]

Chatongriffes, all of the advantages you listed overlap with university resources. A large consortium of universities that cared about this issue would, of course, already know about their own textbooks' existence. The project would, during its initial stages, likely provide many avenues for low-cost publicity, and professors mingle with their peers every year at conferences. Getting the word out would not be a problem, assuming a strong and broad initial coalition.

Universities generally have established legal counsel, and educators and librarians are generally extremely well informed about how and when copyrighted works can be legally used. Universities also have tons of human capital that could be leveraged to create original works for hire to be released in the public domain (or creative commons, or whatever license is sensible), greatly reducing or eliminating licensing costs for textbooks in almost every field.

Professors are, I believe, in a unique position to test the pedagogical and scientific effectiveness of the textbooks they use in their classes.

Collaboration and project management across time zones are particularly relevant problems today with knowledge workers and outsourcing, and the tools to execute this sort of thing are insanely polished compared to anything else ever known in the history of the world. It's not a dealbreaker, assuming institutional support and resources.

If every state institution of higher learning in America spent 10% of what their students spent on textbooks, they could create world class learning materials that were always up to date, free to everyone in the world, did not disenfranchise anyone, and were available in electronic and physical formats.

I agree that it's never going to happen without substantial changes in attitude and priorities, but it's such a reasonable idea that it's not funny. The fact that it's essentially off the table is shameful.

All of the practical difficulties inherent in this sort of project are nothing compared to the hurdles involved in large construction projects, for example, and universities routinely take those on single-handed. For the price of one football stadium, plus reasonable shared expenses for maintenance and updates, students could have free or inexpensive world-class textbooks for forever.

Universities are large organizations with long time horizons and vast resources that routinely tackle hard problems. They just don't care enough to tackle this one... or that's what it looks like from the outside.
posted by jsturgill at 5:30 PM on October 9, 2012 [2 favorites]

DU: Yet Another Thing That Needs Fixing About IP Law.

IP law should not be fixed. It should be nuked from orbit, never to be seen again.

IP laws are government enforced market monopolies. They are a government tax on consumers with the proceeds transferred to giant corporations. It allows corporations to overcharge consumers by eliminating free market competition.

The U.S. Constitution states that IP law is "To promote the progress of science and useful arts", not to enforce excess profits for corporations.

Yesterday it was reported in the New York Times that Apple and Google now spend more money on patent lawsuits than they spend on research and development. So not only are customers paying excess prices because of patent monopolies, they are also paying for the costs of the lawyers used to create and defend those monopolies.

Pharmaceutical IP monopolies cost consumers more than $200 billion a year in excess costs, while the companies use more than twice as much of those excess costs on advertising than they do on research. These monopolies encourage the development of incremental, miniscule changes to drugs to extend patent duration rather than research in new areas. So patents, again, reduce innovation rather than promoting innovation.

Patent and copyright laws restrict the flow of information, decrease innovation and are detrimental to the public welfare. Arguing about Supreme Court tweaks around the periphery are a convenient distraction from the root of the problem.
posted by JackFlash at 5:43 PM on October 9, 2012 [5 favorites]

dios' law: if a claim is being made about the particular import of a Supreme Court decision or case that explicitly states or implies that the result will be alarming and yield a transformational new world, then the claimant of same doesn't have a fricking clue what the Supreme Court is actually deciding.

Don't buy it at all - let's look at recent decisions we've discussed on Mefi.

The doomsayers seem to have been completely right about Citizen's United so your example is flat wrong in one of the most importance cases so far.

People around here and everywhere else got pretty het up on Bush v. Gore - and that resulted in quite the new world, didn't it?

NFIB v. Sebellus established the Constitutionality of the so-called Obamacare. Transformational or not? I'd say yes, though it might be too early to tell.

Supreme Court rulings are often very important. Isn't this the reason we're always told it's so dangerous not to vote Democrat?
posted by lupus_yonderboy at 5:58 PM on October 9, 2012 [4 favorites]

So far as I can tell, not a single person here as actually gotten the legal issue right. This case is about whether copyright owners can prevent someone from re-selling something they bought overseas in the united states.

Even leaving aside karson's point that at least one court stupidly asserted it's the country of *manufacture* that matters, other folks have indeed "actually gotten right" the legal issue you focus on. The 10th comment in this thread was this:

The key issue is "does the right of first sale apply to books purchased outside the United States?" Is that right?

Others discussed that, too, throughout the thread. I think you might want to read threads more carefully before judging what "not a single person" has understood in the future.
posted by mediareport at 6:02 PM on October 9, 2012

It's almost impossible to advance within the company without putting in two years or so as a campus salesperson

This is true across the industry, and I've yet to have anyone give me a satisfying explanation for it. When I started in publishing, I was hired by and reported to an acquisitions editor (who started her career in editorial and never left it, interestingly enough), and during my time with her she strongly encouraged me to do a field sales stint, saying that if I did two years I'd be able to come back in-house way ahead. I thought about it, but I ultimately decided I didn't want to pursue a path that would require me to uproot my life and sell an entire bookbag of disciplines I was unfamiliar with to people who would be regularly closing doors in my face.

I suspect that the preference for sales backgrounds has to do with (a) sales having the most immediate and easily quantifiable measures of success ("well, she closed 8,000 units at that school, she must be good") and (b) salespeople preferring to promote other salespeople. There are reasons why having a sales background is helpful if you are an acquisitions editor (which is where you first start encountering comfortably middle-class salaries in editorial), but it is primarily an editorial role and you can make strong arguments for someone with a background in content development, too.

I suspect Dr. Stewart is the exception

He definitely is. His franchise is phenomenally successful, which both gives him (a) more money than the average author and (b) leverage with his publisher to negotiate or maintain a higher royalty rate on new projects that he's signed to. The typical textbook contract nowadays will offer around a 10% royalty (MAYBE an advance of a few grand and/or a higher royalty if the signing is competitive) and often be divided between several co-authors, especially since it's in the editor's best interest to sign authors who control large adoptions to maximize market potential. So, for example, you might be looking at three authors, where one is the 'lead' author, with a 5/2.5/2.5 royalty split or something along those lines. It's a nice way to pad your income and your CV, but you're definitely not going to quit teaching (or whatever you do) to live off of it, and with revision cycles tightening authors often find themselves in situations where they're never not working on the book in some fashion anyway.

Setting aside the merits of this particular case, a lot of textbook industry practices have to do with the same forces that drive other industries, especially those with low competition... they act in the ways they're incentivized to, whether those incentives are intentional or unintentional. (The only reason something like Lodsys exists is because patent law is interpreted in such a way that it makes financial sense for patent trolls to exist.) Of course Wiley is going to try to sell at whatever price it deems viable across the world, and protect its profits where it can through whatever avenues are available to it. Management has investors to answer to, after all. If you find a company that does otherwise, it's because its management has chosen to value other principles over that short-term profit maximization, which may be laudable but is certainly rare. To change that requires incentivizing businesses to act in other ways, which usually means either changing the state of the legal landscape through legislation or the courts (which takes a long time and a massive struggle against entrenched interests), or introducing some sort of massively disruptive innovation in the business model, which we may yet see. Some people are certainly trying.
posted by Kosh at 6:02 PM on October 9, 2012

They go around to these campuses and are instructed to basically stroke the egos of predominantly male professors and adjuncts, in order to get exclusivity deals.

I've been really enjoying your comments, Dormant Gorilla, and really want to know more about these reps that go around to profs trying to get exclusivity deals. If anyone knows of any investigations about how that works, I'd love to read them. Do the profs get anything else out of it aside from stroked egos? Like money? Trips? Gifts?
posted by mediareport at 6:06 PM on October 9, 2012 [1 favorite]

All of the practical difficulties inherent in this sort of project are nothing compared to the hurdles involved in large construction projects, for example, and universities routinely take those on single-handed. For the price of one football stadium, plus reasonable shared expenses for maintenance and updates, students could have free or inexpensive world-class textbooks for forever.

While I believe a project like this would work well in large-scale courses in the STEM disciplines, it would work less well in the Social Sciences and even less well in the Humanities, where detail is more in debate. The economics break down almost completely at higher level classes, which, almost by their nature, have lower enrollments. This is not to suggest that we shouldn't pursue projects like this; I think they would be a step toward a better system.

However, when one is talking about professor's time and release from courses, it's worth remembering that professors are (mostly) booked at over 100% by the current economic crisis. If they are not teaching those classes, who will? (and the courses must be taught; tuition is the main element of many, if not most, university budgets -- it's not like universities are getting rich off of textbook sales). Further expansion of low-paid per-course lecturers? That's not a great solution since it further erodes the faculty....
posted by GenjiandProust at 6:07 PM on October 9, 2012 [2 favorites]

I work at Wiley now. Not in Higher Ed, so I can't talk to your points about saleswomen/girls (which don't surprise me), but it's been my experience that new editions are put out only when we have new material.
posted by papercake

You don't want an OLD textbook from all the way back in 2011. Imagine how slightly bent the corners could be after several whole months of propping up a freshman's wobbly coffee table. And how about all the amazing advances in entry level algebra since 4 months ago? You wouldn't want to miss out on those amazing advances.
You've probably heard how hard Chapter 13 was in the OLD edition. But that's no problem with the NEW edition, because that content is now in Chapter 8. But where's Chapter 8, you wonder? We've got that covered too. It's in Chapter 13 now. Yes, that's right; the orders of the chapters have been switched. Only a truly innovative publisher would be able to add such a tremendous amount of new material to the chapter titles. But wait, that's not all you get with a new edition. Problem Set 8 is now called Problem Set 13. Wow, I bet you can't wait to pay an extra 10% of your yearly income! Blood plasma and organ payment plans now available!
posted by starfishprime at 6:16 PM on October 9, 2012 [6 favorites]

So, to interject rudely here - if we can't resell copyrighted material manufactured overseas, that means that all the used bookstores will fold overnight, right? Because they'll all have to do a huge amount of administrative stuff to separate out US-printed books from foreign-printed books and won't be able to sell quite a lot of what they used to, and their clients won't be able to sell them nearly as many old books anyway. I recognize that legislators and indeed most Americans could give a good goddamn about used bookstores and I imagine that no one on the SCOTUS buys secondhand anything except antiques anyway, but still this will suck, won't it?

I would imagine that there will come to be some kind of large-scale vetting of copyrighted material that can be done in a semi-automatic way for a fee, and that what this will really do will be consolidate all used book/copyrighted stuff sales into the hands of corporate resellers who can afford to do this as an economy of scale. So basically instead of selling my old books to the local used bookstore which then sells them to others, I would drop off my books with some Amazon-like reseller which would give me much less money (or maybe just a voucher) and themselves handle whatever compliance is needed. Now, I don't expect to get any money from selling my old books - it's a crying shame how little you make - but it will be a huge blow to all the small eBay sellers and other independent retailers whose livelihood it is.

If I can speculate: this is all about the declining rate of profit and the decline of the middle class. Basically, rich people need to squeeze more money from somewhere because they're making less from conventional sources. The middle class has less money and less political power, so can't resist being squeezed. So even something small and dumb like a tiny dollar amount of book sales (and seriously? $37,000 is a lot of money to me, but to Wiley it's chump change.) has to be ruthlessly either extirpated or enclosed.
posted by Frowner at 6:18 PM on October 9, 2012 [1 favorite]

Do the profs get anything else out of it aside from stroked egos? Like money? Trips? Gifts?
Dormant Gorilla may have different stories to tell, but this is my experience:

There is a whole world of academic contracting that goes on where professors receive honoraria for manuscript reviews and for work on ancillary materials (test banks, instructor manuals, website content, etc.) It certainly surprised me how widespread it was when I started in the industry. All of these things are certainly part of a larger sales and marketing strategy, and pretty common, but they do result in the publisher getting something (either feedback or a product) for its money beyond just an increased chance of the professor adopting the book. I've never heard of a professor being paid outright to adopt a book, or being given a vacation to Hawaii or whatever, though that's not to say it hasn't ever happened. In the case of departmental (or larger) exclusivity deals, the school also gets some leverage in terms of the product itself: getting certain things for free, having editorial prepare instructional materials for them that they don't want to prepare themselves, etc.

Field sales reps also have expense accounts with which they can buy professors and other institutional decision makers meals, gift bags, etc. Occasionally they'll be invited to larger events at the publisher's expense, either private events at academic conferences or events the publisher is running on its own, but I don't know think those involve the publisher paying all their travel expenses (the conference ones certainly don't.) I'm not sure this is all that different from what salespeople in other industries do, though.

Authors often travel on the publisher's dime, but that's with the aim of selling the book, and not really different from what happens in trade publishing with book tours.
posted by Kosh at 7:03 PM on October 9, 2012 [1 favorite]

jsturgill, thanks for writing up your responses. I appreciated them. To go back to one small point, though:
jsturgill: "...producing spec commercial work...

Why do you think I'm talking about spec work? I never said that."

This is true, you didn't. And I didn't mean spec work in the "speculative" sense, but in a "specification" sense, and I regret not making that clear, and the confusion is totally on me.

Let's say we're talking about illustrating a textbook. The conversation works like this: "So on page 59, we have a time and velocity problem about boats on a river. We're going to need a line drawing of two boats on a river, labelled b1 and b2 and..." There may not be an art student who can fulfill that request, or every request that you might need to fill your book. And even if there was, that's a job or an internship. Not scholarship.
posted by boo_radley at 7:46 PM on October 9, 2012 [2 favorites]

Bulgaroktonos: "No it doesn't. It means that the market in the United States for textbooks is such that people are willing to pay more. The fact that things cost more in a country as rich as the US versus a newly industrialized country as Thailand shouldn't be surprising, we have more money to spend on them."

It's just more than a little funny how the arbitrage everyone else is subject to is disallowed under copyright law even where the copies were indeed made with the consent of the copyright holder, but only if the product is actually produced outside the US.

I think the comments about how some of us are all for the free market sometimes and not other times are off the mark. The problem is that only some of us are subject to market forces, while others, like Wiley and Omega, are apparently insulated from them. These fucks are constantly on about how great it is. If it's so great, why don't they play by the same rules?

While I'd rather the system be quite different than what we have today, I expect businesses to either be subject to market forces or heavy regulation if they want to continue the system we have.
posted by wierdo at 8:31 PM on October 9, 2012

While I believe a project like this would work well in large-scale courses in the STEM disciplines, it would work less well in the Social Sciences and even less well in the Humanities, where detail is more in debate. The economics break down almost completely at higher level classes, which, almost by their nature, have lower enrollments. This is not to suggest that we shouldn't pursue projects like this; I think they would be a step toward a better system.

I admittedly didn't spend a ton of time in higher level humanities or social science courses, but what experience I do have gives me the impression that they're using books rather than textbooks, for lack of a better term. Most of these aren't going to see frequent revisions and they're going to be bought by academics and maybe even a few 'normal' people outside the context of the course. Boosk for courses aren't really what we're talking about. Of course, that sort of book (of interest to people outside a massive low-level course) is almost certainly what Kirtsaeng was dealing in, not Stewart Calculus. (That Lang's Algebra, which I mentioned above, is on a 'revised third edition' makes it an outlier. I think every other math book I own is on its first or second edition.)

Coincidentally, I did take a class that used a book that was written partly because no comparable book existed and partly to have a cheap book. (The AMS has since published it, which is what I linked to. The version I had cost $18 and, as the story went, had been stashed in the publisher's garage (it was a one-man firm) for however many years.)
posted by hoyland at 8:46 PM on October 9, 2012 [1 favorite]

Bypassing the "textbooks are to expensive" derail for a moment, I wonder how the current case might affect things like imported music and movies. Better music and video stores always used to have an "import" section, often with titles that weren't available domestically (yet). Were those items technically "infringing," I wonder?

Presumably, this is precisely why DVD region coding was developed.

Seems like book publishers are simply seeking to define the "license" under which their work may be distributed, which is hardly unreasonable.
posted by ShutterBun at 9:02 PM on October 9, 2012

ShutterBun: "Seems like book publishers are simply seeking to define the "license" under which their work may be distributed, which is hardly unreasonable."

I think that further extending the idiocy that is click-wrap licensing and software copyright is quite unreasonable.
posted by wierdo at 9:04 PM on October 9, 2012

Scody, if my perspective were to be evaluated based on my experience in publishing or teaching college courses, it would be tossed right out.

Non-factual statements without any factual or experiential basis should be thrown out on their ass. That aint "perspective" its "making shit up." Rightfully, it should be derided and discarded. If there are facts one has to add, fine. But unless one has a shred of evidence to support one's positions, one should be cut down repeatedly by commenters.

Otherwise its turtles all the way down and there's nothing to distinguish one from the people who believe the Bible proves the Earth was created in 4004 B.C.
posted by Ironmouth at 9:11 PM on October 9, 2012

People around here and everywhere else got pretty het up on Bush v. Gore - and that resulted in quite the new world, didn't it?

Only if your universe consists of white, middle class Americans. If it also consists of 30,000,000 Iraqis, of which 750,000 were killed in the late war, not so much.
posted by Ironmouth at 9:16 PM on October 9, 2012

> > People around here and everywhere else got pretty het up on Bush v. Gore - and that resulted in quite the new world, didn't it?

> Only if your universe consists of white, middle class Americans. If it also consists of 30,000,000 Iraqis, of which 750,000 were killed in the late war, not so much.

Say, what?! Did you think I was being sarcastic? I most certainly was not - I listed three recent Supreme Court cases that resulted in dramatic change...!
posted by lupus_yonderboy at 9:25 PM on October 9, 2012

Field sales reps also have expense accounts with which they can buy professors and other institutional decision makers meals, gift bags, etc. Occasionally they'll be invited to larger events at the publisher's expense,

I use to work for a huuuuuuge multinational investment bank, and I think it's sad that, apparently, we had tighter rules regarding giving and receiving gifts, meals....bribes essentially (and we had constant refresher courses on this kind of thing) than the world of academia and textbooks does.
posted by mreleganza at 10:19 PM on October 9, 2012

Non-factual statements without any factual or experiential basis should be thrown out on their ass. That aint "perspective" its "making shit up." Rightfully, it should be derided and discarded. If there are facts one has to add, fine. But unless one has a shred of evidence to support one's positions, one should be cut down repeatedly by commenters.

Otherwise its turtles all the way down and there's nothing to distinguish one from the people who believe the Bible proves the Earth was created in 4004 B.C.

Wow. You're being pretty harsh there, and you misunderstood what I was saying. I never said I didn't have evidence, or that I was making things up. I said that I'm not an authority, and I don't mean to represent myself as one. My point was that my perspective should be evaluated based on its merits, not mine as a leader in the field of academic publishing.
posted by jsturgill at 10:41 PM on October 9, 2012 [1 favorite]

The fuck? Isn't arbitrage a natural economic law and isn't it almost always futile to legislate against natural human economic tendancy? Like, isn't that the chestnut that laissez faire, darwinian captalists trot out all the fricking time?

Don't want grey markets for your shit? Sell it at a fair price without price discrimination. Problem solved.
posted by Skwirl at 10:42 PM on October 9, 2012 [1 favorite]

Let's say we're talking about illustrating a textbook. The conversation works like this: "So on page 59, we have a time and velocity problem about boats on a river. We're going to need a line drawing of two boats on a river, labelled b1 and b2 and..." There may not be an art student who can fulfill that request, or every request that you might need to fill your book. And even if there was, that's a job or an internship. Not scholarship.

Students have internships and work for their college all the time. Why not have them add to their portfolio and to the freely available sum of human knowledge at the same time? Seems like a win-win, and there are also faculty who could participate.

Sure, if your specialty is abstract painting you're not going to be doing a lot of illustrations of mitochondria for the biology textbook, but there are illustrators and designers who work at these colleges who teach things like illustration and design. Surely they can aide in this process, particularly if doing so provides a meaningful feather in their caps and is supported by administration?

Universities' greatest strength is not their endowment, or the size of their rec centers, or the average test scores of their incoming classes. It's the amazing diversity of human capital they have access to, combined with a long time horizon.

Unfortunately, these organizations' interests are often not in line with the long-term interests of their students, and their actions (or lack thereof) can reflect that disconnect.
posted by jsturgill at 10:54 PM on October 9, 2012 [2 favorites]

Rumple writes "
So it's pretty clear that the new editions are designed to flush the old editions into premature obsolesence. I mean, it is so fucking clear it is laughable. "

Back in the days of my first run at University my most expensive textbook (almost a hundred bucks which was a 1/4 of my entire tuition for the semester) was about 3" thick, came with a no-DRM CD featuring an answer key and additional problem sets and was maybe worth the asking price. The new edition I bought was four years old at the time and I used it for two semesters. My next most expensive book was my Calculus I book. It was maybe an inch thick; didn't come with an answer key (that was another book you could buy) and was on something like it's 18th edition in 25 years. The only, only, difference between the current edition and the previous three editions was the order of problem sets. I know this because my Calc instructor would hand out problem set assignment sheets that had four columns on it; one for each of the most recent four editions. The pricing on the most recent edition was a complete rip off and I'm glad that instructor made it possible to use the books until they wore out through shear erosion.
posted by Mitheral at 11:18 PM on October 9, 2012 [1 favorite]

"You'll be judged by a jury of your peers."
"So, people who've been to university, and who understand the doctrine of first sale?"
"Ha! You're a funny guy. That's great."
posted by obiwanwasabi at 1:33 AM on October 10, 2012 [2 favorites]

I do agree that a small university press would be able to create perfectly adequate textbooks, especially if they were to round up their resources from folks in other departments to help with things like design and editing. It would be really cool and I would love to collaborate on something like that. Unfortunately, I don't really see it happening any kind of large scale.

The Open University prints their own textbooks, for (as far as I know) every subject. They also have no objection to their students selling used coursebooks to each other, because each student already gets a free set of coursebooks to go with their registration on the course. During the six years I studied a social sciences degree with the OU, I bought only one textbook, which cost me £10.00. Some other courses have a few more required set books but course texts themselves are published directly by the university. Why can't more universities do this?
posted by talitha_kumi at 3:08 AM on October 10, 2012 [1 favorite]

Why do people assume that allowing unfettered arbitrage will just reduce textbook prices in the us, rather than dramatically increase them in poorer countries?
posted by leopard at 4:31 AM on October 10, 2012 [1 favorite]

All prices are set by what the market will bear, leopard. If the price becomes exorbitant, then either faculty select different books or students pirate the textbooks. We can easily replace both books and distribution channels.

In fact, almost everyone I know who studied in poorer countries obtains books mostly thought libraries and piracy anyways. I'd love it if first sale trump any relevant copyright laws or laws against parallel imports here, but our SCOTUS will probably side with the company.
posted by jeffburdges at 5:33 AM on October 10, 2012

Back a thousand years ago when I was in college (okay, the 80s), I was a history major. I don't recall ever using a textbook in any of my history classes; instead, professors photocopied bits and pieces of other things (articles, chapters of out-of-print books, chapters from textbooks, etc.) and whoever was taking the class would go to the copy shop in town and pay some small amount ($5, I think) for the course packet. I have no doubt that most of the professors had not requested reprint permission from copyright holders.

That is how we made our own "textbooks" back in the day. I remember standing in line at the college bookstore at the start of every term, arms loaded with (mostly used) books for my classes, and being horrified at the amount of money my STEM-majoring friends had to spend on books - they could easily drop two or three times as much money on a quarter the number of books as I was buying.

What if, instead of automagically creating this consortium of universities that will somehow get its faculty and students to produce textbooks (which everyone in the consortium will, again, automagically somehow agree on what needs to go into which textbook), what if we started talking about getting publishing companies to stop suing/threatening to sue educational institutions and profs who do what my profs did back in the day? What if we could either get the copyrights laws changed, or could implement some sort of....licensing, maybe, like software? (I know, that system is less than ideal as well.) Your institution agrees to spend $X on [these books], and your institution receives the right to make [some number] of course packets out of that book for [some amount] of time?

But the more I think about this the more I suspect it's just as unwieldy and unrealistic as jsturgill's proposals. So.
posted by rtha at 6:44 AM on October 10, 2012

Say, what?! Did you think I was being sarcastic? I most certainly was not - I listed three recent Supreme Court cases that resulted in dramatic change...!

I totally did think that was sarcastic. I stand corrected and apologize for the mis-ID of snark.
posted by Ironmouth at 6:54 AM on October 10, 2012 [1 favorite]

In fact, almost everyone I know who studied in poorer countries obtains books mostly thought libraries and piracy anyways

Not just text books. In three months in Central America, I don't think I saw a single book, movie or music store that sold legitimate copies of media outside of a few shopping malls in big cities. I saw a few used book stores, and lots of DVD and cd bootleggers in markets.

And there is zero chance that is ever going to be enforced there. You're talking about people that make <$100 a month in a lot of cases. They don't think piracy is wrong and they don't have money to pay higher prices, and cheap entertainment is one of those things that keeps a poor populace from getting restless.

If text book (or other media) companies raise prices in poorer countries, people will just pirate and not think twice about it.
posted by empath at 6:57 AM on October 10, 2012 [1 favorite]

The clips and photocopied readings approach of the humanities is essentially impossible in the sciences. Again, in the eighties I was paying 1/3 my tuition in book costs, and the arts electives were by far the cheapest of my courses to buy for---a few Penguin classics in some cases.

Even back in those days of cheaper tuition, the university recognized that book costs were a big problem for students. Our math department produced "lecture notes", ring-bound texts with complete with problem sets, produced in the university print shop, rather than recommending a published textbook. A lot of work by the profs who had to maintain them, but a real bargain for the students.

If there's a way out of the publishers' trap, that's it: high-quality open texts produced by the same authors who would be tapped to write the texts anyway. Academic authors, from experience, get very few value-adds from commercial publishers. The main benefit provided by the companies are copy-editing and layout, from the author's viewpoints. Even then, we've found it useful to hire our own people for both of those things because the publisher-"owned" ones are so brutal to work with (don't know the subject, not willing to listen to changes, even to correct errors of fact, etc...).

For this, you get to be abused by the senior editor to hit some commercial window they have, and expected to work for free for up to a year. At the end of the process you get one free copy of the book. You don't even own your own book, the publisher does. Academic publishing is kind of a deal with the devil, in my experience. It's great that the book is out there from a research-community point of view, but creating it involves a lot of unhappy compromises in terms of rights and reproduction.
posted by bonehead at 7:27 AM on October 10, 2012 [3 favorites]

The clips and photocopied readings approach of the humanities is essentially impossible in the sciences.

Yeah, that's what I suspected - especially, I imagine, for lower level/intro courses. I do remember an across-the-hall engineering major in my dorm going into a panic when she thought she'd lost her problem-set binder (turned out she'd left it in the lounge and someone kicked it under a couch).
posted by rtha at 7:52 AM on October 10, 2012

The other problem with the rampant course packs of the past is that Kinko's got the shit sued out of them for making them, arguably the first cut on their way to bleeding to death.
posted by klangklangston at 8:39 AM on October 10, 2012 [1 favorite]

In other SCOTUS news: Supreme Court Terminates Warrantless Electronic Spying Case
posted by homunculus at 9:18 AM on October 10, 2012 [1 favorite]

It's a little weird how some people suddenly become devoted free market no-holds-barred capitalists when it's applied to how much things cost in addition to how much workers are paid.

Well, much of this is about debt and the right to an education.
posted by sebastienbailard at 12:47 PM on October 11, 2012 [1 favorite]

karson: the Second Circuit held that the 109(e) only applies to items manufactured in the United States OR legally imported. If I purchase a book from Wiley with Wiley's express permission in the United States, the first sale doctrine applies, regardless of where the book is manufactured.

I fail to see how the lower court's ruling allows Apple to sue me for reselling an iPod I bought at the apple store down the street OR shipped directly from China through apple's website, conduct that is explicitly protected by 109(e). The fact that it prohibits people from doing what the defendant did here shouldn't worry many people, unless they were planning on engaging in multi-million dollar copyright arbitrage schemes.
posted by anewnadir at 1:12 PM on October 11, 2012

Act now: your right to own property is being considered at the Supreme Court today
posted by homunculus at 10:11 AM on October 29, 2012

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