WANTED: A Box Full of Books
Dear lurking alumni,
It appears my classmates are getting BarBri books. I should get in on that. I have heard that BarBri was willing to buy back your books for $125. Now is the time to be rewarded for your wisdom in telling them to shove it. I am willing to offer the going eBay rate and pay shipping for your box of materials needed to take the California bar.
If you would like to convert your crate of green and brown books into a few cool hundies, please email me, tfletcher, at our humble school's edu address. You'll be a helping a thrifty, albeit fatuous, fellow Boaltie fulfill his dream of becoming a real lawyer (use Pinnochio voice).
Friday, OFFER RETRACTED. Thank you alumni!
It appears my classmates are getting BarBri books. I should get in on that. I have heard that BarBri was willing to buy back your books for $125. Now is the time to be rewarded for your wisdom in telling them to shove it. I am willing to offer the going eBay rate and pay shipping for your box of materials needed to take the California bar.
If you would like to convert your crate of green and brown books into a few cool hundies, please email me, tfletcher, at our humble school's edu address. You'll be a helping a thrifty, albeit fatuous, fellow Boaltie fulfill his dream of becoming a real lawyer (use Pinnochio voice).
Friday, OFFER RETRACTED. Thank you alumni!
Labels: Bar Exams
posted by Tom Fletcher at 6:00 PM
17 Comments:
There seems to be an impression lurking around some corners of the 3L world that resale of Bar/Bri books is prohibited. As a matter of copyright law this is obviously false, per the first-sale doctrine. So I wonder about four issues connected with contracting. Let me also say that I have no recollection what I might have signed when I signed up with Bar/Bri, so I'm going to assume for the sake of the thought experiment that they forbade me from reselling my books and that I indicated my assent in some fashion.
As a matter of trade-secret law Bar/Bri seems like it has a pretty tough (well, basically impossible) case to make. It distributes these materials to many thousands of people, doesn't mark them "confidential," and so forth. In fact, a fifteen-minute search of their website turned up no warnings or information on this subject at all.
My tenuous grasp of resale price agreements under the Sherman Act suggests that while a supplier can announce a limitation on resale as a matter of its own policy, and can even threaten business sanctions against buyers who violate that policy, vertically-related parties cannot enter into an actual contract limiting resale. Since I (fervently) hope to do business with Bar/Bri only once, I'm not especially worried about a potential threat that they wouldn't sell me another set of books later on if I pass mine along to a 2L when I'm through.
If I'm right about the antitrust question, then any contract prohibiting resale would be void for illegality.
However, If I'm somehow wrong on the antitrust matter, is there any state that would enforce a contract prohibiting resale?
On a related note, can Bar/Bri plausibly maintain that they're only "renting" me the books? If I were THEIR lawyer I think I would recommend this as the strongest of several pretty weak options. The Internal Revenue Code has a fair amount to say about when a purported lease is actually a sale, but I have no idea if doctrines like that would apply in this context.
Maybe Bar/Bri should get a patent on the "business method" of using their strategies to take the Bar Exam. Then they could try to prohibit resale as inducing infringement. Actually, I hope they do do this. I think it would be the absolute best possible case for the SCOTUS to use to strike down business method patents. I would cheer.
But remember, IP does not confer an automatic exemption from Section 2 monopolization offenses. You could make the following argument for that:
1. Bar-Bri has MP over test prep services market (isn't there only one other competitor? Granted, market share is not end-all, but it's close)
2. It's doing bad behavior--tying the books to the classes.
3. Bad effects: Preventing resale market on books hurts competition in book business. Prevents a valid after-market from developing.
4. No biz justification: IP is NOT a sufficient biz justification (see Microsoft)
That's my 45-second analysis. If this were an exam, I'd probably spend 2-3 minutes though.
Of course, this presumes the books are really a second product from the classes to support the tying claim. Are they? Being a 2L, I don't know what's in them. But if people like Tom Fletcher are looking for JUST the books, that's pretty strong evidence that consumers prefer to purchase them seperately. How do you like that Tom? You, who HATE looking at ACTUAL consumer behavior instead of theoretical Cal-Tech-grad rational consumers, are the best evidence for a tying claim and Sec. 2 offense. Take that bicth!
I'm not trying to justify the practice, but as a BarBri rep, I can tell you for a fact that, whether justified in doing so or not, BarBri does "prohibit" people from reselling their books. They say that this is because the speakers write the material in the books, and so the material in the books is the proprietary material of the authors, and not of BarBri. However, because this is their reason, they don't really care too much whether they give you the $175 back for your books, or whether you decide to, ummm, do something else with them.
People write their own material in their books all the time (and almost by definition, no?), and then the distributors sell the books, but the first sale doctrine applies all the same, right? I can sell Salman Rushdie's latest novel if I bought it, can't I? Even if he retains the copyright in the text.
Thanks, 8:13. It's nice to have some actual information to go along with our speculation and hearsay. For the record, though, I don't believe for a second that this is their actual reason for prohibiting re-sale. I am willing to believe that it's their stated position, but 1) it doesn't make any sense and 2) it seems fairly clear that their incentive is to make it harder for people to avoid paying their outrageous fees.
I believe that Bar/Bri thinks they've licensed the books to you not sold them. So first sale wouldn't apply.
If you don't like that, wait until you crack open the MBE part--another shrinkwrap license. You agree not to tell anyone what the questions were once you open the exam--as if you have a choice!
Seems like it's a good case for one of our clinics to tackle. It's an entirely legal issue, deals with copyright and freedom of information, and would benefit all law students.
Well, BarBri could characterize the transaction as a license to their copyrighted material. A license could properly contract around the first sale defense. [On the other hand, BarBri appears to claim it doesn't own the (c) in the books it sells...]
This issue has come up with software resales. Companies have tried to claim that they do not sell software, they only license it. The shrinkwrap license forbids resale of the licensed material. These contracts (I believe Adobe litigated one) have not fared well if I recall correctly.
Based on that, I'm willing to risk BarBri coming after me for tortious interference with contractual relations. It'd be great experience.
With regards to 7:31, I agree, I am excellent proof that consumers would like unbundled prep services and books.
With regards to FTC v. Proctor & Gamble, I'm going to stick to my guns. The price of the branded dominant bleach was over a dollar more than the others (just FYI. current price of bleach is around 99 cents/gallon at Walgreens). There were hundreds of small bleach makers in the market and entry into the market was trivial. These hundreds of bleach makers were supplying competitively priced bleach.
So, P&G wants to buy Clorox (OAKLAND!!). By their powers combined, they will... undercut the other bleach makers? That would be fine. But no, the Court's worried they will raise the price of bleach _even more_. So... what are we so worried about? As soon as they did, the little hundreds of bleach makers could carry their market away.
In my opinion, the Court erred by protecting branded, hih-priced bleach, not bleach. There's room to disagree I suppose, but I'm pretty convinced.
With respect to consumer behavior... look. At what point does a consumer need to be able to read the ingredients on a package? Bleach is bleach. This is not asking too much. I'm not calling for caveat emptor, I'm just saying that we should treat consumers like literate adults.
Here's some subtext: was the Supreme Court being extra-protective because of the overwhelming power of shiny advertising on the average consumer housewife? I think you can pull that from the opinion fairly, which is just goes to show how wrong the Supreme Court can be. It ain't Dad clipping coupons. If you want a savvy & price-conscious consumer, look to the housewife at the supermarket.
In other news, my thanks to an [anonymous] alum. I'm glad to see that Boalt can help through the years. And if there's a thrifty 2L out there, let me know in a year.
does barbri ever try cracking down on people who resell books? am i going to get in trouble if i get caught?
8:13 here. I tried to respond earlier, so sorry if this gets posted twice. As of 2 years ago (the last time I spoke to the BarBri people about the subject), they were fully aware that people were selling their books on ebay, etc., and had zero desire to do anything about it. They say that the materials are updated every year, so between that and the books coming with the full classroom course, they didn't think the market for older books was large enough to have a significant effect on their company. If the market gets large enough, they may change their views on this. I haven't seen any indication that they have changed yet, however. So, I think you're safe right now (or at least you were 2 years ago), but I wouldn't swear to it.
7:31-- couldn't we come up with some pro-competitive justifications and effects too?
assuming bar/bri acquired market power legally (big assumption maybe) the tying of books to the class may just be a form of price discrimination for complementary products. They are only charging you $175 for the books as long as you take the class. But if they separated the two products, maybe they'd have to charge $500 or $1000 for the books, and $2000 for the class. Plus, their goal is to get people to pass the bar, and it looks bad and will hurt their business if all of a sudden people who only bought the books started failing. hence they tie the two to enhance people's chance of passing the bar and therefore their reputation and ability to stay in business.
I also don't think there are steep barriers to entry into this market, though i don't know. If bar/bri tied up hundreds of professors with exclusive contracts to only do bar prep work for bar/bri, maybe there's a problem. but if not it shouldn't be that hard to find some professors to help you write your own bar prep books. so i'm not really sure that restraining alienation of the books is necessarily harming the market.
anyway, i havent really started studying for antitrust so i could be totally wrong. please kick my ass if so. but i think a quick look or RoR inquiry might get bar/bri out of trouble in this theoretical.
1:25,
I don't think there's much doubt Bar/Bri's a monopoly. In fact, Bar/Bri recently settled a case alleging that it conspired to monopolize the market. The settlement was for $49 million, with about $125 going to anyone who took a Bar/Bri class between 1997 and 2006. A lot of plaintiffs thought they got off easy.
New York Times article on this: http://tinyurl.com/yp37jh
Just doing some research. Apparently, if you get the books as part of enrolling in the BarBri class, they do claim it is a lease. See http://www.barbri.com/uploads/CA/S07_Bar_App_Web4_9.pdf.
"MATERIALS LEASE FEES
a. LIMITATION ON POSSESSION: BAR/BRI intends and herein states that no transfer to ENROLLEE of personal tangible property is intended by allowing ENROLLEE to possess any instructional materials prior to and/or during the period of use for which ENROLLEE is enrolled, and that all course materials, written or audio, shall be provided to ENROLLEE for his/her use only, and that replacement of unusable materials shall be made to ENROLLEE without additional payment of Lease Fees by ENROLLEE. Said materials, written or audio, whether or not consumed during the period of use by ENROLLEE, shall remain the sole property of BAR/BRI throughout the period of ENROLLEE’s use and possession. Said materials are not offered for sale by BAR/BRI under the terms of this agreement.
b. INSTRUCTIONAL MATERIALS - WRITTEN: In consideration for possession of instructional material(s), including, but not limited to, early possession in connection with use for law school classes, ENROLLEE is liable for a Material Lease Fee of $175.00 for First Year & Upper Level Volumes or MPRE volume, and $900.00 for California & Multistate Volumes, Practice Essay Book, M.B.E. Testing Volume, and Mini Review. These Lease Fees are for the exclusive use of BAR/BRI written materials by ENROLLEE only, and are not transferable to any person or persons, at any time, or under any conditions.
c. DURATION OF LEASE PERIOD: The Lease period shall begin upon issuance of BAR/BRI instructional materials to ENROLLEE by BAR/BRI and SHALL TERMINATE FOUR (4) WEEKS AFTER CONCLUSION OF THE NEXT CALIFORNIA BAR EXAMINATION."
However, they do have a "books only" option. See http://www.barbri.com/states/pdf_enroll/ca_books.pdf.
This does not mention a lease in anyway, rather simply "fees" for books, and thus is probably a sale.
Does anyone know if the books that come with the classes are actually different then those sold separately? Seems difficult to enforce the contract if they are the same books.
On the other hand, the iPod/MP3 classes are even more strict and explicit in not allowing you to sell/transfer/share the files.
"The iPod unit and iPod BAR/BRI lecture files contained on the iPod unit may not be shared, copied, reproduced, or resold, by any means, electronic or otherwise. The iPod unit and BAR/BRI lecture files contained on the iPod unit remain the sole property of BAR/BRI Bar Review. Any unauthorized copying or sharing may be reported to the appropriate Character and Fitness Committees and I may also be subject to civil and/or criminal liability." http://www.barbri.com/uploads/CA/CA.Audio.Enroll.S07.2.pdf
The iPod makes sense since they don't actually want to sell you an iPod, but the books with the class dont' really seem to pass the smell test. It's claimed to be a lease, but the goods aren't really durable (the law changes too much, written materials have to beupdated), and the "refundable deposit" of $175 is drastically less than the "materials lease fee" of $900. If they actually reprint the books every year, then the withholding of the $175 without returning is probably an unenforceable penalty. If the deposit is unenforceable, then it's just a fee in exchange for the transfer of property, i.e. a sale.
Speaking of benevolent gifting it would be nice if people were uploading their old outlines onto bolat.org more. I need a decent outline for employment law with Prof. True. Anyone? Pretty Please?
Sure, I'll just look up your email address by searching for "Anonymous" in the Boalt email directory and then I'll email you my employment law outline.
To Anon 2:02pm,
No need to be nasty. I thought my shameless email made it clear that I was begging for someone to post a new employment law outline to the boalt.org website. Still, I know its finals time so I will forgive the biting sarcasm and lack of reading comprehension. Happy studying!
Anon 9:38
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