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Software companies write EULA to force users to relinquish their rights (such as first sale, decompiling/reverse engineering) before being allowed to use the software.

Why are books never published this way (by opening this book you agree to the license ...). There are many publishers that would love to remove right of first sale (textbooks et al.), yet I've never seen one that tried that?

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In fact, the first recognition of the First Sale doctrine came about precisely because a publisher attempted to do something of the nature of what you suggest.

In Bobbs-Merrill Co. vs Straus, the Bobbs-Merrill Corporation attempted to enforce the following restriction, printed on the inside of a book it published:

"The price of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright."

They made the mistake of attempting to enforce it against, among others, R.H. Macy and Co., who they then had to take to court - and lost.

This established the First Sale Doctrine, which then later (in 1976) was codified (in 17 U.S. Code § 109.

Textbooks recently tested another element of this; in the 2013 case, Kirtsaeng v John Wiley and Sons Inc., the Supreme Court held that the First Sale doctrine trumped a notice forbidding selling a book outside of a particular territory or region (Kirtsaeng imported textbooks from Thailand, where they were much cheaper than in the US, and resold them at a profit in the US).

0

You are conflating two concepts here.

  1. Copyright allows the holder to make copies of the material
  2. Sale, rental, leasing or licencing are means by which a (or a bundle of) copies may be transferred from one person to another.

There is nothing that prevents a book publisher from licensing books rather than selling them; except practicality. In fact, lending libraries (as owners of a copy not necessarily as copyright owners) do this all the time.

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    Sounds like you might have misunderstood the question. To me it sounded like, "Why don't publishers license instead of selling books, given that they would prefer it if people couldn't lend and resell them?" You say they can but that it is not practical. Why less practical than with software? – feetwet Aug 27 '15 at 19:39
  • See my answer: Differences in technology. I can read a book without copying. I can't use software without copying. – gnasher729 Dec 24 '15 at 1:15
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@feetwet: To answer what you wrote in your comment... A EULA cannot force the customer to do anything. What the copyright holder can do is to declare that a sale is not final until you accept that your rights are restricted to what the EULA declares, and if they don't agree, they can return the item sold for a refund. And both with books and software, you have obviously no right to make a copy without the sale being final.

Now look how that works out with a book. You say "the sale is not final unless I agree that I cannot resell or lend the book". I have the book in my hands at my home. I have to think about whether I want to agree to the license or not. While I think about this, it is absolutely legal for me to read the story in the book, which I do. When I finished and have read the complete book, I go book to the store and say "I don't like your license, so take the book back and return my money".

That's exactly how it works with software. But while I can read a book without copying, I cannot use the software without copying. See how it works? Because of the technical differences between software and books, there is no way for the copyright holder of a book to get anything useful out of such a license. If he tries, I can make him decide to either let me read the book for free, or to forget about the license.

"By opening this book you agree to this license..." - that doesn't work! I don't agree with it, and that's it! Since I have the right to open a book (there's a copyright law, but there's no openright law), I don't have to agree to anything to open and read the book. "By copying this software you agree to this license..." that works slightly better. Since I don't have the right to copy the software, you cannot force me to agree to the license, but you can force me to either agree or to admit copyright infringement.

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    Interesting. But couldn't you have a physical equivalent of "clickwrap" (i.e., a wrapping that you have to break to open the book) that says, "By breaking this seal you agree to the following license...."? – feetwet Sep 1 '15 at 19:51
  • @feetwet The term is "shrinkwrap contract", and it actually predates "clickwrap". – cpast Sep 1 '15 at 20:29
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    @cpast: Right, my comment was meant to be a little tongue-in-cheek, since so few people remember the old days when IP existed in tangible form ;). – feetwet Sep 1 '15 at 20:31
  • How about a music CD (assuming not wrapped)? If I play it on my Diskman am I copying it? – Keith McClary Jan 23 '17 at 2:10

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