March 4, 2011
Examination Copies of Casebooks: Are No-Resale Stickers Enforceable?
Law professors regularly receive free casebooks and statutory supplements from the legal textbook publishers. We don’t specifically ask for most of these books; the publishers know what courses we teach and send us everything they publish in those subject areas. I assume this practice isn’t confined to law schools, that professors in other fields also receive free textbooks.
Lately, some of those books have arrived with stick-on labels prohibiting resale. For example, a statute book I recently received from Thomson West has the following label on the front cover: “Professor Review Copy: Not for Resale”.
I don’t resell any of the books I receive, and I don’t intend to do so. But, being a curious legal academic, I have wondered if those no-resale stickers are legally binding. The answer, I think, is no.
There is a federal statute, 39 U.S.C. 3009, dealing with unordered merchandise. It provides:
“(a) Except for (1) free samples clearly and conspicuously marked as such, and (2) merchandise mailed by a charitable organization soliciting contributions, the mailing of unordered merchandise or of communications prohibited by subsection (c) of this section constitutes an unfair method of competition and an unfair trade practice in violation of section 45(a)(1) of title 15.”
Most of the books I receive are unordered, but they are free samples, so sending them would not violate federal law. However, subsection (b) of the statute provides: “Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, [my emphasis] may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender.”
Note that subsection (b) covers not only merchandise sent in violation of the statute but also merchandise like the books I receive that falls within the free sample exception—merchandise mailed “within the exceptions” to subsection (a). Therefore, I have the right to use or dispose of them “in any manner . . .[I see] . . . fit, without any obligation whatsoever to the sender.” That would undoubtedly include reselling them, so those labels have no effect whatsoever.
Moreover, subsection (b) goes on to provide: “All such merchandise shall have attached to it a clear and conspicuous statement informing the recipient that he may treat the merchandise as a gift to him and has the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender.” None of the books I receive include such a statement; in fact, the labels seem to suggest just the opposite.
Of course, this analysis would not apply to books I specifically ask a publisher to send. If I request a book, it is not “unordered” and the statute would not apply.
March 4, 2011 | Permalink