WaPo's Kaplan Scolded For Demanding $300 From Student Trying To Sell One Of Its Books On eBay

from the let-me-explain-to-you-first-sale-rights dept

Thu, Mar 1st 2012 10:19am — Mike Masnick

A recent NY Times article about the changes happening at the Washington Post noted that, for years, the company was boosted by its subsidiary, Kaplan, famous for its test preparation offerings. However, thanks to some new federal rules, that business has been shrinking. Apparently Kaplan's lawyers are looking for other ways to pick up some spare cash -- such as ignoring the First Sale doctrine that lets people resell legally purchased books without it being a copyright violation.

After sending a nastygram with a demand for $300 to a student who put up a used copy (which she had purchased used as well), a letter was sent to Kaplan's lawyers from Paul Levy at Public Citizen explaining the law to Kaplan and refusing to give in to the crazy demands in the letter:

In fact, elisha8779 is a medical student who bought a used copy of the notes from another student. Regardless of whether Kaplan might have a contract action against that seller, Kaplan has no copyright claim against anybody, and it certainly has no claim against elisha8779. This issue was conclusively determined by the Supreme Court of the United States in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), a case that is still good law.... Consequently, in response to your "cease and desist," elsiah8779 will not return any books in her possession and she is certainly not going to send you $300 dollars for having exercised her statutory first-sale rights.

Levy then goes on to directly scold Kaplan for this move and suggests that the company not pursue similar claims against others:

Beyond that, you and your client should be ashamed of yourselves for trying to intimidate students into giving up their first-sale rights. elisha8779 is not planning to file a class action for a declaratory judgment of non-infringement--she wants to get on with her life--but we are going to be looking for other clients who may not be so charitable toward Kaplan. I strongly suggest that you stop sending these frivolous demands.

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Filed Under: copyright, first sale
Companies: ebay, kaplan, washington post

36 Comments

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GeneralEmergency (profile), 1 Mar 2012 @ 10:28am

Where are the BAR Associations?
.

Why is there such a wave of clearly unethical, clearly unlawful shake-down actions by attorneys these days?

If they can't police themselves, perhaps it's time WE the People took OUR law back.

.
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:Lobo Santo (profile), 1 Mar 2012 @ 10:34am

Re: Where are the BAR Associations?
Any legal system which requires one hire an expert in order to accomplish anything is overly complicated, should be scrapped and replaced with something simpler.
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fb39ca4, 1 Mar 2012 @ 10:35am

How many times do we have to say it? Reselling something is not making a copy.
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Anonymouse, 1 Mar 2012 @ 10:41am

Re:
Reselling is stealing?
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Difster, 1 Mar 2012 @ 10:41am

DAAAAUUMMMMM
Normally I don't like lawyers much but that smackdown at the end was perfect.
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iamtheky (profile), 1 Mar 2012 @ 10:53am

Re: Re: Where are the BAR Associations?
I would say any legal system that has a monetary requirement should be discarded.

Because West Texas will provide you expert free rulings all day with proof of purchase.
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Trails (profile), 1 Mar 2012 @ 11:06am

Re:
Reselling is killing selling.
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Anonymous Coward, 1 Mar 2012 @ 11:08am

Re: Re:
Refusing to buy is killing selling?
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Anonymous Coward, 1 Mar 2012 @ 11:09am

Kapow!
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Anonymous Coward, 1 Mar 2012 @ 11:09am

Re: DAAAAUUMMMMM
There are good lawyers out there, even among many lawyers I know IP lawyers (or the lawyers that just go out and attempt to sue people for reselling books) are despised among their circles and probably more than the common man despise them.
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No Imagination (profile), 1 Mar 2012 @ 11:15am

Try law students instead...
Perhaps Kaplan should go after Law students instead of medical students... perhaps they will have better luck getting clueless people to pay up.
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Anonymous Coward, 1 Mar 2012 @ 11:30am

Re:
You wouldn't resell a car...

Oh, wait.
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pixelpusher220 (profile), 1 Mar 2012 @ 11:35am

Re: Try law students instead...
The question is do they hire the law students that protest? or the ones that just roll over? ;-)~
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Anonymous Coward, 1 Mar 2012 @ 11:38am

Re: Re: Try law students instead...
They hire the ones that countersue.
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Josef Anvil (profile), 1 Mar 2012 @ 11:45am

Re: Where are the BAR Associations?
It worked for the recording industry so well that now the publishers want their cut. So they are trolling ebay for lawsuits now.
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MrWilson, 1 Mar 2012 @ 12:08pm

Re: Re: Re: Try law students instead...
It sounds like the equivalent of a recruitment tactic for a mercenary army. "You must defeat one of our warriors in combat if you want to join our forces."

Legal Kombat: Depose Him!
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GeneralEmergency (profile), 1 Mar 2012 @ 12:10pm

Re: Re: Re:
Reading is Murder.
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Yakko Warner (profile), 1 Mar 2012 @ 12:25pm

Re:
A lot more than that; the video game industry still isn't listening.
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Anonymous Coward, 1 Mar 2012 @ 12:29pm

Only for monopolies
Of course, even WANTING to restrict resale only makes sense if you have a monopoly in the first place.

Imagine Ford telling people they can't resell cars. Obviously, this makes Fords less valuable; so to avoid sales declines, they reduce the price a corresponding amount. If users of Fords want a new car they will have to throw out the old car instead of adding it to the overall used car market. With fewer used cars on the market, we would see an increase in the price of used cars... making the product of the OTHER car makers (who allow their customers to sell those used cars) even MORE valuable.

So, congratulations, you just managed to reduce the value of your product while increasing the value of your competitor's products and without decreasing any of your costs - in fact, you now have the additional burden of monitoring the market to make sure nobody resells your stuff. Oh, and your salesmen hate you because they work on commission and since you're selling the product for less money, they get less money per sale. Sure, the slight decline in the used market means more people need a new one - but the additional sales are as likely as not going to your competition. Unless, of course, you HAVE no competition - which is why I said that it only works for monopolies.

Not to mention the environmental impact. We're better off if person A can resell the book/car to person B instead of person A and person B both buying the book/car and throwing it away (or even recycling it - that process isn't 100% efficient) while it could still be useful to someone.
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WDS (profile), 1 Mar 2012 @ 12:37pm

Original Letter
Any chance of getting a copy of the original cease and desist from Kaplan????
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cjstg (profile), 1 Mar 2012 @ 12:48pm

Re: Where are the BAR Associations?
seriously, did you really ask that question?

lawyers have been manipulating the system to enrich themselves since there have been laws. they have always pushed the boundaries of the law to get what they want.

where have you been for the last 1000 years?
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Torg (profile), 1 Mar 2012 @ 1:16pm

Really, is it too much to ask that a publisher gets paid every time someone new touches their book? WHY DO YOU HATE THE CONTENT CREATORS?
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Anonymous Coward, 1 Mar 2012 @ 1:35pm

Re: Original Letter
From JustAnswer.Com what someone else received from Kaplan.

"
********* LLP is IP counsel to Kaplan, Inc. (?Kaplan?).
Your offer for sale of Kaplan USMLE Lecture Notes Step 1 (?Infringing Merchandise?), Auction No. ********** constitutes an infringement of Kaplan?s intellectual property rights and U.S. copyright laws.
Therefore, we demand that you immediately cease and desist from any and all offer for sale, sale, distribution and advertisement of Infringing Merchandise. We also demand that you:
1. Surrender all Infringing Merchandise in your possession.
2. Make payment to ?Kaplan, Inc.? by cashier?s check, certified check, or money order, for all damages and costs incurred by Kaplan in connection with your illegal transaction, in the amount of $300.00 to the undersigned at: *********************************************************
The deadline for your response is February 24, 2012.
This letter is sent without prejudice. Kaplan?s rights are hereby expressly reserved.
"
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TriZz (profile), 1 Mar 2012 @ 3:13pm

This is an amazing article! I love Public Citizen's response!
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Anonymous Coward, 1 Mar 2012 @ 5:19pm

Re: Re: Original Letter
Holy crap, I think the freakin' Mob is less insane when they go about demanding 'protection' money.
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Alan Bleiweiss (profile), 1 Mar 2012 @ 5:37pm

Re: Re: Where are the BAR Associations?
exactly what came to mind when I read the article. Love that Public Citizen took up the cause though!
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TtfnJohn (profile), 1 Mar 2012 @ 6:31pm

Re: Re: DAAAAUUMMMMM
Once upon a time there were ambulance chasers. As we got wiser, more civilized and more sophisticated the ambulance chaser has evolved into the legal IP troll. They hide under rocks, often in West Texas, and spring out of nowhere with the silliest demands not at all caring of the damage they do.
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That Anonymous Coward (profile), 1 Mar 2012 @ 7:13pm

I am more entertained they are not only demanding money but the "infringing material" which appears to be an actual Kaplan book.

If we introduce the idea that Kaplan is infringing on itself every time it prints a book can we get the lawyers to go eat themselves and leave us alone?
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G Thompson (profile), 1 Mar 2012 @ 8:02pm

Re: Re: Original Letter
1. Surrender all Infringing Merchandise in your possession.

WTF!

So they expect someone to Surrender any and all Infringing Merchandise that they have even if not at some stage owned or controlled by Kaplan, and lets not forget Infringing here is not specified as IP Infringement, could be Infringement of criminal law too. Hmmm They want all stolen goods as well.

This is like the old "we require all communication that has ever occurred regarding XXXXX" Its ambiguous, dumb, and pisses off everyone including courts. And is absolutely a good judge of whether the attorney/solicitor who wrote it is a complete moron who cannot understand law let alone the English language
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G Thompson (profile), 1 Mar 2012 @ 8:04pm

Re:
Divide by Lawyer in 3...2....1
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Justin Olbrantz (Quantam), 1 Mar 2012 @ 8:44pm

Re: Re: Re:
Refusing to buy is stealing.
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Anonymous Coward, 2 Mar 2012 @ 7:25am

first sale and contracts
Can an author waive first sale doctine by contract? For example on the purchase page you have to agree to a contract that states you will not allow anyone to borrow or buy the test prep book you are purchasing (which costs several hundred dollars). In return the author provides a money back guarantee that you will pass the test the book prepares you for.
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Anonymous Coward, 2 Mar 2012 @ 7:34am

Re: first sale and contracts
i would fail the first time, get my money back, then pass it the second time
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Torg (profile), 2 Mar 2012 @ 7:52am

Re: first sale and contracts
Didn't video game End User License Agreements try to do that?
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Chargone (profile), 2 Mar 2012 @ 10:09am

Re: Re: Re: Original Letter
... ya know, given that said merchandise was not, in fact, infringing upon anything, the correct response would be to send them an empty box. possibly including a note listing it's contents. :D
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Chargone (profile), 2 Mar 2012 @ 11:39am

Re: Re: first sale and contracts
... usually they try to tell you you either agree to it or must return the product to the place of purchase (which, here, thanks to laws pushed by the same industry who use said EULAs, you can't do, save for a replacement copy of the exact same product if yours is somehow physically defective (something is wrong with the disk). )
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