Yesterday, New York State Governor Kathy Hochul vetoed A5837, the eBook lending bill, which is almost identical to bills in Rhode Island, Massachusetts, and Maryland. The Maryland law, set to take effect on the first of the new year, triggered litigation by the American Association of Publishers (AAP), primarily on the basis that these bills are unconstitutional, preempted by federal copyright law, and this was the rationale stated by Governor Hochul for her veto. But even if preemption were not an issue, I am glad to see that New York, the birthplace of America’s literary heritage, has rejected legislative tactics designed to weaken the rights of authors.
In addition to the fact that New York is and always has been central to American publishing, antebellum New York was the epicenter of the first domestic literary movement, which proclaimed a more democratic literature that would no longer feed off the traditions of Europe. Walt Whitman was among the first young authors who answered that call with his elegy Leaves of Grass, but who also joined the contemporary authors who advocated for better copyright law. The cultural dividend of those efforts is the diverse anthology of literary works we enjoy today, and, of course, New York retains its prominence in literature, art, and entertainment.
The eBook Bills Are a Solution Without a Problem
These eBook lending bills are allegedly written to meet an unfulfilled demand for library access to eBooks by compelling publishers to license to state libraries and mandating the terms of those arrangements. But aside from the consideration that this amounts to an illegal state compulsory license, if the governors were to visit their state libraries, audit expenditures on eBook licensing, and assess demand for these works, they would find it difficult to identify the problem these bills are supposed to alleviate. On the contrary, the legislative background of these bills comprises little more than generalizations echoing Silicon Valley’s naïve view that somehow access to creative works can exist without production of creative works.
While doing no good for readers, these bills would cause significant harm to the complex symbiosis between authors and publishers and even jeopardize the symbiosis between authors and libraries. Yet, for reasons difficult to fathom, the American Library Association (ALA) and other library lobbying organizations continue to advocate policies hostile to authors’ interests. Although public libraries are essential and beloved, they do not operate in a vacuum but rather as part of a copyright economy that begins with authors.
Copyright incentivizes authors to produce and distribute their work by granting the exclusive right to decide the terms on which that work is made available, including timing, geography, price, and format. Often, these decisions may be the difference between success and failure, and any state law that functions as a compulsory license strips the author of those prerogatives. In this case, the eBook lending bills propose to divest the author of those rights in the service of a much broader agenda looking far beyond the narrow claim to improve eBook lending.
Although copyright is rarely a partisan matter, it is notable that these bills have been pursued in blue states where it is easier to promote the idea that this is about corporate versus public interest with the librarians advocating for the latter. But aside from the fact that authors’ interests are a public interest, if one looks behind the blue curtain, one discovers the names of individuals (e.g. Jonathan Band) and organizations (e.g. Fight for the Future) with significant funding ties to the tech industry, which ultimately stands the most to gain by using state legislatures to chip away at federally protected rights.
For instance, the library groups generally endorse the tech industry view that these state bills are preludes to statutory changes to federal law, like amending Section 109 to extend the first sale doctrine to digital copies. But the library associations fail to recognize that such a change in the law would not only empower commercial ventures to exploit authors but would also hasten the irrelevance of libraries in the digital age.
While I think it is generally good news when any state governor recognizes federal law for what it is, in this case, it is especially gratifying to see New York spared from looking rather dumb considering its role in the copyright ecosystem. I believe we are about to see in Maryland that the courts affirm that these eBook bills are unconstitutional and, therefore, doomed to the scrap heap. In the meantime, perhaps the many thousands of creative professionals who live and work in New York State should ask why our legislature actually passed such a disruptive, and ill-fated bill without a damn good reason in the first place.