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Libraries, Publishers Battle Over Terms for E-Books’ Use (1)

Jan. 18, 2022, 10:05 AMUpdated: Jan. 18, 2022, 2:27 PM

States that want to give libraries a better deal on e-books are watching a publishers’ suit against Maryland, the first state to set terms for how digital books are distributed for public borrowing.

Library associations, including the American Library Association and several state groups, have been pushing for state laws to require publishers to distribute digital works to libraries on “reasonable” terms that the states would set. The groups say libraries pay too much for electronic books and should be able to get them at lower prices.

The bills and the law enacted in Maryland have set off alarm bells for authors and publishers who fear the legislation encroaches on copyrights.

Similar suits to the one in Maryland by the Association of American Publishers might follow if bills in other states move forward, copyright attorneys, publishing industry lobbyists and others said. They say the bills propose a radical rewriting of the copyright system that only Congress is able to change.

A hearing on a preliminary injunction on the law’s implementation will be held in early February. Maryland on Friday filed a responsesaying the suit should be dismissed for failure to state a claim upon which the court can grant relief.

“The Maryland case is very, very significant because we’re hoping and believe the court will say, ‘You can’t do this. This is unconstitutional,’” said Keith Kupferschmid, the president of the Copyright Alliance, a nonprofit that represents a broad group of creators. “And, presumably, other states would at least be a little more cautious. Hopefully they wouldn’t introduce the bills at all.”

Library associations are watching what happens in Maryland to decide how to proceed in other states. Bills are pending in Massachusetts and Rhode Island, and legislation is likely to be reintroduced with some changes in New York after Gov. Kathy Hochul (D) vetoed an earlier version, citing preemption by the Copyright Act.

‘Chilling Effect’

Library officials back the bills so they can loosen restrictions on the number of digital works that can circulate and not let publishers dictate pricing terms, said John Chrastka, the executive director of the EveryLibrary Institute, a nonprofit that advocates for library funding.

The Rhode Island and Massachusetts bills are based on the Maryland law. Supporters hope the bills can either be redrafted to avoid similar lawsuits or that the Maryland court will throw out the case.

In New York, Brianna McNamee, the New York Library Association’s director of government relations and advocacy, said the bill Hochul vetoed will likely be tweaked based on recommendations from her office.

“The bill’s viability in its current form is contingent on that pending litigation in Maryland,” McNamee said. “In a perfect world, if the suit goes away it would be our hope that it would provide reassurance to the governor and her staff that New York state won’t be sued upon enacting similar legislation.”

It’s not clear that the Maryland law is preempted by the Copyright Act, said Alan Inouye, the senior director of public policy and government relations for the American Library Association. The AAP’s claims aren’t valid in terms of copyright law because it’s actually a matter of contract law, Inouye said.

The bills could be changed to root the remedy in state contract law rather than the Copyright Act, Chrastka said. The EveryLibrary Institute has encouraged the Massachusetts State Assembly to evaluate the legislation, suggesting modifications to embed it in contract law.

Other states are also considering proposing similar bills, but are waiting on the Maryland lawsuit, Chrastka said.

“The problem with the AAP lawsuit is it’s had a chilling effect on other conversations,” Chrastka said. “A state by state approach to enshrining the rights of the library as a buyer in contract law kind of framework might be the best approach until Congress has the courage to crack it open in a fair way.”

Potential Preemption

The Maryland law and the similar legislation are preempted by the federal Copyright Act, which gives copyright owners a bundle of exclusive rights, including being able to decide when and how their works are distributed, Mary Rasenberger, the CEO of the Authors Guild, said.

The AAP and proponents of the lawsuit said they support public libraries and that libraries are essential in expanding readership, but the Maryland law has the potential to harm creators and weaken the copyright system.

“The public libraries are an important piece of providing public access, but they don’t operate alone in a vacuum,” said Maria A. Pallante, the CEO of the Association of American Publishers.

The Motion Picture Association, the National Music Publishers Association, and the News Media Alliance also oppose the bills because they say there could be a potential domino effect in states also creating compulsory licenses for other creative works besides e-books.

“The other industries are concerned because if states start doing this,” Rasenberger said, “then the next thing down the line is going to be movies and television programming.”

(Updated in fifth paragraph with Maryland's motion to dismiss.)

To contact the reporter on this story: Samantha Handler in Washington at shandler@bloombergindustry.com

To contact the editors responsible for this story: Renee Schoof at rschoof@bloombergindustry.com; Keith Perine at kperine@bloomberglaw.com

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