By Caitlin Dewey
Stateline, an initiative of The Pew Charitable Trusts, provides daily reports and analysis on state policy trends. Read more at Stateline.org.
Librarians and their lawmaking allies are urging e-book publishers to lower their prices and relax licensing terms, an effort that could make it easier for millions of library users to borrow the increasingly popular digital versions of books.
Proponents say e-book lending legislation in several states would allow libraries to offer more digital material and reduce waitlists for popular titles. In the long term, the measures could strengthen the core mission of libraries in an increasingly digital environment.
“The current model is frustrating for libraries and archives, whose service mission is completely different from the capitalist goals of a for-profit corporation,” said Kyle K. Courtney, Harvard University copyright advisor and founder of Library Futures, an advocacy group pushing the bills. “We’ve dealt with publishers and rights holders for centuries, but it’s never been worse.”
Since the early 2010s, libraries and publishers have been at odds over the terms and costs of e-book licenses, which allow libraries to borrow digital books. Such licenses now usually expire after a certain time or number of rentals. Libraries also have to pay multiples of the cover price of equivalent printed versions.
Publishers argue that the markups and other restrictions protect authors’ intellectual property rights and provide incentives for companies to invest in their work. But as the cost of e-book licenses has continued to rise, librarians and their advocates in at least nine states have been pushing for laws requiring publishers — particularly the “Big Five” publishers who produce the vast majority of consumer books — to do so would offer libraries more “reasonable” license terms.
State legislators have bipartisanly supported such bills, but several measures stalled before states could implement them. Democratic New York Gov. Kathy Hochul vetoed her state’s e-book bill in late December, citing copyright concerns. In June, a federal judge in Maryland dealt a second blow to the movement, ruling that federal law forestalls attempts by states to regulate e-book licenses.
Undeterred, librarians and legislators in states such as Maryland, Massachusetts and New York narrated state border they are preparing a new legislative strategy ahead of next year’s sessions. The new bills attempt to sidestep the stumbling blocks that stalled legislation in Maryland and New York.
Rising prices, restrictive conditions
The librarians’ latest legislative push comes after two breakneck years for digital lending. According to OverDrive, the largest distributor of digital library content, such tills (including ebooks, audiobooks, and digital magazines) will surpass half a billion in 2021 — 55% more than two years ago.
In response, many US libraries have rapidly expanded their digital collections and shifted their editions to e-books and digital audiobooks. However, libraries rarely “own” e-books. Instead, they license the right to borrow them – a model more akin to buying software than shopping at a bookstore.
Under this agreement, publishers can set expiration dates on e-book licenses, limit the number of times an e-book can be borrowed, delay sale to libraries, or deny them access altogether. Today, it’s common for e-book licenses from major publishers to expire after two years, or 26 loans, and cost between $60 and $80 per license, according to Michele Kimpton, global senior director at nonprofit library group LYRASIS.
In a testimony before Congress in 2019, the American Library Association highlighted the discrepancy between consumer and library e-book prices, using the 2014 bestseller All the Light We Cannot See as an example. While consumers paid $12.99 for a digital version, the same book cost libraries about $52 for two years and nearly $520 for 20 years.
“E-books used to be on libraries’ digital shelves, but now you’re paying $60 for a title every two years,” Kimpton said. “It’s definitely not good for libraries, but that’s where we are right now.”
Along with the strain of limited budgets that have remained roughly flat in most places since the early 2000s, librarians say current licensing models have eroded their digital back catalogs and distorted their current collections. Forced to spend more money on fewer books, librarians inevitably focus on bestsellers, titles by well-known authors and new installations in popular series, said Michael Blackwell, director of St. Mary’s County Library in southern Maryland.
This overlooks books by new and emerging authors, mid-list books, and some older books with expiring licenses. Patrons often wait weeks or months to borrow popular titles.
“We think there’s a lot of people being disadvantaged across the country,” said Blackwell, who also leads the global library coalition ReadersFirst. “You shouldn’t have to have a credit card to be an informed citizen.”
“Something has to be found out”
However, regulating e-book licenses has proven difficult. In the past two years, at least nine states — including Connecticut, Illinois, Massachusetts, Maryland, Missouri, New York, Ohio, Rhode Island and Tennessee — have considered bills that would require publishers to offer e-books at “reasonable” prices to license to libraries. Prices and terms, with the word ‘reasonable’ often being left up to future interpretation.
Last year, the Maryland legislature voted unanimously to pass the e-book law, which among other things would have prohibited publishers from delaying e-book sales to libraries. In New York, only one of the 211 voting members of the Legislature opposed a bill introducing civil penalties for publishers whose license terms unfairly restrict access to e-books.
The issue has been generally impartial, said Alan Inouye, senior director of public policy and government relations at the American Library Association. For the political left, licensing e-books is a matter of justice and equal access to knowledge; On the right, lawmakers have sometimes labeled costly and restrictive licenses as a poor use of public money.
But federal law doesn’t allow states to limit the exclusive rights of copyright owners, said Sandra Aistars, director of the Arts and Entertainment Advocacy Clinic at George Mason University’s Antonin Scalia Law School. Publishers are “completely free” to set different prices and terms for different markets, allowing them to experiment in the market and “be more responsive to consumer demand,” she added.
Publishers and their supporters have also argued that the industry can reasonably distinguish between libraries and consumers because they buy different products. As consumers acquire individual access to an e-book, libraries acquire the right to distribute it to the public.
Last December, Hochul vetoed the e-book bill in New York after intensive lobbying by the arts and entertainment industry. She pointed out that federal copyright law gives authors exclusive control over how they share their work. That same month, the Association of American Publishers filed a lawsuit challenging Maryland’s e-book law on similar grounds. In June, a US district court judge ruled that federal copyright law prevents Maryland from regulating e-book licenses.
“Libraries are an important part of the copyright ecosystem as authorized distributors,” Terrence Hart, general counsel for the Association of American Publishers, said in a statement to Stateline. “There will be nothing to distribute when states destroy the incentives and protections of authors to license and use their exclusive rights in their works.”
Advocates and lawmakers in several states now say they are preparing to introduce revised e-book bills that can stand up to legal scrutiny — though federal laws would still pre-empt any state law that violates copyright law, Hart said. A model developed by Library Futures states that states can regulate the terms of e-books under contract and consumer protection laws.
Massachusetts lawmakers have already worked with Library Futures to change their e-book bill, said state Rep. Ruth Balser, a Democrat who co-sponsored an earlier version last year. That measure didn’t go out of committee, Balser said, because lawmakers initially hoped to see how the Maryland Association of American Publishers lawsuit played out.
Meanwhile, advocates in Maryland are preparing a prospective bill that would ban public libraries from participating in “unfair” contracts, potentially cutting off major publishers from the state’s library market.
Lawmakers and library groups in New York have also begun discussions about how to “tweak” the law Hochul vetoed, said State Assemblyman Josh Jensen, a Republican co-sponsor of the failed New York e-book -law. As a teenager, Jensen worked at a local library rearranging books.
“Of course I was frustrated,” Jensen said of the governor’s veto. “But I think you have to come up with something. We don’t want to dictate terms here – we’re just saying that there must be reasonable terms and good faith. It’s a very reasonable argument.”