In December 2021, New York Governor Hochul recognized that she must veto a bill that would have prescribed the manner in which publishers may provide eBooks to public libraries. It isn’t necessary to rehash the details of that legislation—I wrote several posts about eBook bills—but only to restate the reason for the veto: the law was unconstitutional. Why? Because state laws proposing to dictate terms for making in-copyright works available, even for libraries, is preempted by federal law.
Nevertheless, Assemblyman Angelo Santabarbara has introduced a new bill (A10544) that, although its mechanisms are different from the 2021 bill, is still unconstitutional. In fact, the operative part of the bill which, for instance, prohibits digital rights management (DRM) technology, would have the effect that a library is free to make eBooks available in any manner it sees fit and without limits of any kind. This plainly violates the Copyright Act. Even if the purpose of the proposal were well-founded in service to the public—and it is not—the states are simply not permitted to pass their own laws governing the terms under which copyright owners may distribute works to the market.
In addition to Gov. Hochul’s clear-eyed veto in 2021, related eBook bills have been proposed, litigated, and shot down in several states, begging the question as to why lawmakers seem determined to die on this meaningless hill. As discuss in this post examining the mid-sized library system serving my region in New York, there is no evidence suggesting that the public is underserved or that the current licensing regimes are so onerous as to harm the operation of libraries. Frankly, even if licensing were onerous, these laws would still be unconstitutional, but the combination of federal preemption and pointlessness does make one wonder. But not really.
These eBook bills are all variations on the same effort by the same lobbying groups seeking to push an anti-copyright agenda using the Trojan Horse of the public library. Copyright antagonists couldn’t prove DRM, governed under DMCA Section 1201, was unconstitutional, so they try chipping away at the principle through state legislatures, masked beneath the white hats of institutions we all love. And indeed, because I do love libraries, I continue to hope that they will stop running interference for organizations that have neither libraries’ nor readers’ nor certainly authors’ best interests at heart. If nothing else, continuing to introduce bills that run afoul of Article I Section 8 is a waste of everybody’s time.
Photo by: vasiliybudarin
