Another Restraint of Trade

Tibor R. Machan

When I was teaching at Auburn University some publishing firms decided to lobby the Alabama government--some division of it supposedly concerned about ethics. They were asking that a ban be imposed on professors selling books they receive from publishers as unsolicited examination copies. And the government was on the verge of complying!

I learned of this and immediately contacted this ethics commission in Montgomery and went to testify about how such a ban amounts to restraint of free trade, something no government ought to encourage, let alone perpetrate. Governments are supposed to protect our liberties and not to violate them, and such a ban would clearly be a violation. When you receive gifts from others at their initiative, there can be no legally enforceable strings attached. (I won’t even return something I am sent unsolicited when asked to do so! I don’t work for these people!)

There is absolutely nothing wrong with publishers and authors making a living off their books but when they decide to promote their wares by giving out free copies, they must live with the consequences. One such consequence is that they will give away or sell these books to willing buyers. Sometimes this comes to no more than giving a copy to a student or a colleague. At other times vendors may come around and offer a few bucks to take the examination copies away from one’s home or office library, to purge them to make room for new books.

The idea that once one has received these unsolicited books one must accommodate the publishers by keeping them for oneself or by returning them is morally odious. If you get something you didn’t ask for, you are completely free to give it away or sell it to willing recipients. This is no different from one receiving a gift of a book of which one already has a copy and then selling or giving away the extra copy. Or indeed from selling one’s used furniture or car!

The right to private property implies all this. Something that you own you have the right to sell. And when someone sends you something that you have not asked for, you become its owner, free and clear. This is so even if inside the item you have been given there is a note urging you to return it--no one is authorized to impose obligations on us to which we have not agreed, though of course you are also free to grant the request.

Well, lo and behold one of the book buyers who visits us occasionally at Chapman University told me recently that in Arizona a bunch of publishers are attempting to get the government to ban trade in unsolicited examination copies. Déjà vu! I told the merchant who informed me of all this that I would be glad to help out, send an affidavit or even travel to Phoenix to testify against the corrupt merchants who want to both eat their cake and have it: They want to send around promotional gifts to encourage the sale of their books but then want to avoid living with one likely result of this promotional strategy, namely the sale by the recipients of the books they gave away.

Well, one doesn’t get to do this in a free country. Once you have given something to someone else, without prior conditions agreed upon, the recipient has every right to do with it anything peaceful, as he or she pleases, even burn it in a fireplace. (It might be a dumb idea to do this, although when I consider how cluttered my office and home libraries are because I am so reluctant to toss many books I’ve read or never will read, it may not be such a bad idea.)

An interesting lesson to be learned from this evidently minor case of businesses trying to get politicians to protect them from competition is that by no means are people in business above such behavior. Free markets are OK as far as those in business are concerned but the first group to embark on restricting it are often the very people in business. As Adam Smith observed back in 1776, "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public or in some contrivance to raise prices."

Free market champions are often and very unjustly charged with favoring people in business as against, say, wage laborers or other professionals. From the start this has been a distortion of their attitudes, including that of contemporary libertarian champions of free markets.