Our online column Letters of the Law explores a wide range of legal issues that arise in libraries, with the help of a pair of leading authorities: Mary Minow, a librarian who became a lawyer; and Tomas A. Lipinski, a lawyer who became a librarian. Together they have authored four books on the subject, including The Library’s Legal Answer Book (ALA Editions, 2003, with a new edition forthcoming this year), and led forums at American Library Association (ALA) conferences in collaboration with the Public Library Association (PLA).
In this edition, Minow and guest author Kyle K. Courtney discuss the library ebooks landscape and state-level efforts to institutionalize fair licensing terms.
What short- and long-term problems do libraries currently face with regard to ebooks? Why are states working on ebook bills for libraries?
While digital content has been available in libraries for more than a decade, acquiring that content has become a major roadblock for public institutions, as American Libraries has covered in detail. Publishers set the terms of library contracts, filling agreements with complicated clauses and terms and definitions that go beyond issues of price and availability.
In the short term, publishers and ebook aggregators are preventing libraries from acquiring ebooks with fair licensing (or purchasing) terms that would allow libraries to adequately provide continual access to them. Current ebook licenses offered to libraries come with many restrictions on use, are often prohibitively expensive, and sometimes are not available at any price.
In the long term, libraries do not own but lease ebook titles, which affects collection development and services like interlibrary loan and preservation as there are no legal terms in the licenses to make them a permanent part of the library collection.
Librarians in many states are seeking to develop ebook laws that address these concerns of cost and restrictive licensing terms. State law provisions can regulate ebook contracts, harness the power of the state government, and make ebook contracts fair for libraries. Many states are looking to state procurement rules and consumer protection laws to accomplish these goals.
The core argument of much of this legislation has to do with the state’s power to protect public policy and promote the life, education, convenience, prosperity, and welfare of the state’s population and economy. These bills state that the very existence of traditional public, school, and academic libraries that provide nondiscriminatory access to materials promotes the well-being of society—whatever the format of those materials.
What do these state bills look like? How have they fared so far?
Some organizations like Library Futures have been evaluating state library ebook bills for months. One bill, which was briefly passed into law in Maryland, offered a model for states looking to institutionalize fair licensing terms, but a federal district court decision struck it down in February 2022. Many states are now pivoting in their legislative process to eliminate the language the court found problematic and focus instead on utilizing state law.
Maryland’s law stated that if publishers offer an ebook license to the public, then they must also provide an ebook license to libraries under “reasonable terms.” The bill, which was set to take effect January 2022, passed the Maryland General Assembly unanimously, despite stern letters from the Association of American Publishers (AAP) to Maryland legislators claiming the law was unconstitutional on the grounds that it was preempted by federal copyright law. AAP then sued the state of Maryland on federal preemption grounds, claiming the state was legislating in the federal copyright arena and calling Maryland’s ebook law “radical.”
During the oral arguments, federal judge Deborah L. Boardman interpreted the Maryland law’s language as an “order to distribute,” because it would force publishers to negotiate licenses they might not offer as part of their freedom to license their own copyrighted works. Boardman appeared sympathetic to the libraries, noting their value in her remarks, but the court ultimately found in favor of the publishers, stating federal copyright law provides full legal support for copyright owners to choose to sell, license, or withhold their works from anyone. Neither states nor the federal government can mandate copyright owners to license or sell materials to buyers, voiding any state laws requiring publishers to license or sell copyrighted work, even to libraries.
New York’s legislature had passed a “clone” of the Maryland bill, but the governor ultimately vetoed it, leading library communities to recognize it’s time to rewrite the problematic language in other state bills—no matter how much popular support there may be. States are now proposing ebook laws that would enable them to regulate license agreements without the Maryland language, clarifying that states are within their rights to regulate rather than mandate contracts. Bills in development also include remedies, which give the library the ability to call on the power of the state or the courts.
Bills are at various stages of the legislative process in at least six other states: Connecticut, Illinois, Massachusetts, Missouri, Rhode Island, and Tennessee. Many of these are facsimiles of the Maryland bill, with the problematic compulsory licensing language, and we await to see how these states are reworking the language of the bill.
Have there been attempts at the federal level to solve the ebooks issue? What comes next?
In September, Sen. Ron Wyden (D-Ore.) and Rep. Anna Eshoo (D-Calif.) launched an inquiry into the ebook licensing business of the largest US publishers. “The exorbitant costs and burdensome restrictions of these ebook contracts are draining resources from many local libraries, forcing them to make difficult choices to try and provide a consistent level of service and get books—print or electronic copies—in the hands of their patrons,” they wrote in a letter on the US Senate Finance Committee’s website requesting that publishers respond to a set of specific questions about licensing models and ebook costs, among other issues.
As the state legislative sessions begin again this fall, look for even more states to introduce ebook bills that will use state law to enable fair terms, fair pricing, and allow libraries to fulfill their vital function by increasing access to ebooks for patrons.
We encourage every librarian interested in working on these topics to take the following steps:
- Connect with state library organizations and legislation committees.
- Contact state reps interested in proposing state bills in the next legislative session.
- Join the Library Futures community, which will be launching more resources, model bills, and comparative ebook bill language over time.
- Sign up to get updates on ALA’s #eBooksForAll campaign
The information in this column does not constitute legal advice, nor does it necessarily reflect the views of ALA or PLA. It is meant to serve as a starting point for librarians and library lawyers who wish to research the law and consider its applications. Different jurisdictions will have different laws and may even apply the same laws differently. If you require legal advice or expert assistance, we urge you to seek the services of a competent legal professional.
Look for a new column by Lipinski later in the spring. Send questions or ideas to Associate Editor Sallyann Price at email@example.com.