Sneakwrap abounds

Readers were particularly fascinated and appalled by the implications of books with shrinkwrapped licenses. Regarding the doctor who received a pharmaceutical book in the mail he hadn't ordered, numerous readers pointed out the fact that the restrictive license accompanying it ran afoul of postal regulations that allow recipients of unsolicited goods to treat them as a gift. They wondered, though, what would happen if publishers or distributors of retail books were to start slapping similar license agreements on their products to prevent resale by customers, lending by libraries, or disparagement by critics. "It's bad enough that DRM [digital rights management] is making CDs and DVDs unusable," writes one reader. "What's next? DRM-enabled books printed in disappearing ink?"

Interestingly, it turns out this is an issue that came up way back in 1903. Knowledgeable readers pointed out that at that time, the U.S. Supreme Court ruled against publishers that were trying to prevent resale of their books by attaching notices that said the books were actually licensed, not sold. So it certainly seems that, at least as far as books go, sneakwrap has no chance. Right?

Maybe. But then why are we suddenly seeing so many book publishers distributing their products under shrinkwrap-type license agreements? Of the additional examples readers pointed out, I found one particularly interesting: the Maryland Lawyers Manual, published by the Maryland State Bar Association. The manual, which provides a membership directory for the association and other legal information, is a membership benefit for dues-paying members of the association but is also available for sale to nonmembers. And it comes with a fairly innocuous but nontransferable license agreement.

What's the point? Maryland State Bar Association officials would only tell me that the license agreement provides them with some extra protection, and would not say yes or no on whether they intend to prevent the manual from being resold or given away. But the reader who sent it to me, a Maryland-based attorney, wasn't surprised. "A license on tangible goods was pretty much what I expected a consequence of UCITA [Uniform Computer Information Transaction Act] to be," he writes. "Maryland is a UCITA state."

I know. And I know UCITA's drafters have said time and time again that it won't cover books, and that it won't undermine federal copyright law. But clearly there are sneakwrap-license crafters out there who think otherwise. They may fail when challenged, but we can be sure they'll keep on trying.

After all, they've been at it for at least a hundred years, so they're not going to stop now. Books may be the last product category where we lose our fair use rights, but that makes it all the more disturbing to see that those rights are already under attack.