Why were books never published with a EULA?
<p>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.</p>

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

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

<p>In <a href="https://supreme.justia.com/cases/federal/us/210/339/case.html" rel="nofollow">Bobbs-Merrill Co. vs Straus</a>, the Bobbs-Merrill Corporation attempted to enforce the following restriction, printed on the inside of a book it published:</p>

<blockquote>
  <p>"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."</p>
</blockquote>

<p>They made the mistake of attempting to enforce it against, among others, <a href="https://www.macysinc.com/" rel="nofollow">R.H. Macy and Co.</a>, who they then had to take to court - and lost.</p>

<p>This established the First Sale Doctrine, which then later (in 1976) was codified (in <a href="https://www.law.cornell.edu/uscode/text/17/109" rel="nofollow">17 U.S. Code § 109</a>.</p>

<p>Textbooks recently tested another element of this; in the 2013 case, <a href="http://www.scotusblog.com/case-files/cases/kirtsaeng-v-john-wiley-sons-inc/" rel="nofollow">Kirtsaeng v John Wiley and Sons Inc.</a>, 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).</p>

<p>You are conflating two concepts here.</p>

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

<p>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.</p>

<p>@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. </p>

<p>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". </p>

<p>That's <em>exactly</em> 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. </p>

<p>"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 <em>slightly</em> better. Since I don't have the right to copy the software, you cannot force me to agree to the license, but you <em>can</em> force me to <em>either</em> agree <em>or</em> to admit copyright infringement. </p>

copyright licensing