E-textbooks Redux: What Does Kirtsaeng Mean to the Market? | Peer to Peer Review

Librarians rejoice! The Supreme Court of the United States insisted in its Wiley v. Kirtsaeng decision that we can legally lend foreign-manufactured materials! The media noticed, too, at least the education media: both the Chronicle of Higher Education and Inside Higher Ed mentioned library lending prominently in their Wiley v. Kirtsaeng headlines and ledes. The case was about textbooks and textbook-market arbitrage, though. That’s worth keeping sight of, as Andrew Albanese’s Publisher’s Weekly coverage does. Extrapolating from reactions on all sides, what does the Wiley v. Kirtsaeng decision likely mean for the textbook-publishing business, and what can textbook publishers and libraries do if they don’t like that? What’s incontrovertibly clear now is that the importation of physical textbooks into the United States from countries where they are cheaper to buy is legal. My impression is that textbook importation has until now been a semi-underground industry, mostly leveraging online auction services rather than hanging out online shingles of its own. That seems likely to change, as would-be Supap Kirtsaengs build legal businesses openly. In macro-economic terms, this could mean that textbook prices in the US will be knocked down to the lowest-available worldwide price plus shipping costs and a markup for the importer—which sounds expensive, but, as Kirtsaeng vividly demonstrated, can be considerably cheaper than current U.S. prices for the same books. What can textbook decision-makers do to keep their income high? Possibilities include: [1] Raising print-textbook prices to U.S. levels worldwide. These prices are not tenable in many markets, so textbooks will not sell, so textbook publishers will make less money. This doesn’t seem a likely tactic. [2] Refusing to make print textbooks available anywhere but the U.S., as suggested in the American Association of Publishers’ reaction to the decision. This might well produce a short-term income gain, especially in a post-Wiley world. Education markets are growing so much faster overseas than in the U.S., however, that this strategy bids fair to lose publishers their most promising markets permanently. [3] Changing print textbooks sold abroad just enough to be poor substitutes for domestic books. (Hat tip to Andy Woodworth.) This is feasible, but far from costless, and it risks both those potentially-lucrative foreign markets and a public-relations backlash. [4] Restricting print-textbook supply in foreign countries, perhaps insisting upon demonstration of student status or enrollment in a specific class. This would have stopped Kirtsaeng’s relatives from purchasing the textbooks he resold. It’s leaky, though; what is to stop students from sharing a copy while buying one apiece for profitable resale in the U.S.? [5] Legislative redress. Given existing agitation from students and parents over textbook prices, this seems unlikely to work, but if Maria Pallante genuinely does spur legislative activity around copyright rewriting, textbook publishers are likely to find help from her. [6] Copyright-treaty redress. The international copyright treaty space actually offers textbook decision-makers significant hope, since it’s where copyright maximalists and infringement-enforcement hawks are focusing their effort. I would not be at all surprised to see restriction of textbook arbitrage attempted in a future ACTA. [7] Moving away from print (and the ownership of print that allows first sale to come into play) toward electronic textbooks, where lucrative information-leasing is vastly more common, and DRM limits (though cannot entirely prevent) leakage ... I have already expressed significant concern in these pixels about that final possibility, which the Wileydecision motivates textbook publishers to pursue even more strongly than they already are. I don’t care to repeat myself, not least to avoid another dunking in the hot water I got into then! Instead, I’d like to argue that open-textbook programs offer a feasible, student-friendlier alternative to (or augmentation of) Big E-Textbook Deals, even for universities pursuing those deals ..."