Tag: libraries

Book Bans Should Remind Library Groups that Authors’ Rights Matter

If I believed in Hell and a “special place” reserved for certain villains, I would say that one of those suites in the stygian underworld is the destiny of all book burners. And lately, it seems that room is getting overcrowded. According to a recent story in The Guardian, “the ALA has been tracking bans for two decades and reported that 2021 was the worst year for attempted censorship yet, with 1,597 books challenged,” writes Maeve Higgins.

Higgins reports that certain conservative groups in the U.S. are targeting libraries through a variety of political mechanisms with the purpose of banning books that include or address LGBTQ+ rights, race, sexuality, and the usual catalog of verboten lit among the mouth-breathers. Meanwhile, the Neo Nazis and Proud Boys are simply showing up at library events with the purpose of intimidating staff and visitors.

Book bans are nothing new, of course, but if librarians are sentinels defying those forces, I would remind the leadership of the American Library Association (ALA) et al. that the authors are not only on the same side but are often directly in the crosshairs of censors. And what protects the author best is the market. When copies of Maus sold out after a Tennessee school board banned the book, the response was more than satisfying—it was important. Because that’s how the market protects the voice of Art Spiegelman and the voice of the next author who writes the next book some idiot wants to destroy.

I mention this because when it comes to copyright law, it’s almost as if the ALA and other library associations forget that behind that book about race or gender or the Holocaust—or whatever topic frightens the snowflakes on the far right—is an author. Maybe the author is gay or Black or trans or Jewish, or some combination of these and other experiences that are as worthy of expression through storytelling as any other. But the author’s financial reward for her labor is precarious at best.

The median income made from writing alone is $20,300 per year, and those who say that this is due to capitalism and the greed of publishers have no idea what they’re talking about. Even with its myriad imperfections, only a free market can produce the kind of diversity in literature and cultural works we enjoy in the U.S., and foundational to that market is the bundle of authorial rights protected by copyright law. It should be obvious that library organizations are the author’s natural ally on these matters, just as they stand shoulder-to-shoulder to oppose censorship. But sadly, the connection seems to elude the ALA and many of its cohorts.

To be clear, I do not believe that individual librarians tend to forget the authors. In fact, I am certain this is not the case. The individual librarian is often the author’s best friend and strongest advocate. But your local librarian is also not the person who decides which policies the ALA et al. pursue, and in the area of copyright law, these groups have wasted extraordinary time, energy, and money on efforts to weaken copyright rights in ways that would not only harm authors, but which would obviate the need for most libraries before long.

To be absolutely blunt about it, the library associations have been duped on copyright issues. Not because they are fools, but because they mean well. Their best intentions have been used against them by parties whose motives—whether ideological, financial, or both—demand opposition to the copyright rights of authors. For instance, the ALA has recently expended vast resources pursuing state legislation to undermine ebook licensing models, despite the fact that these bills are unconstitutional on their face and, when we look at the numbers, appear unnecessary to the purpose of serving library communities.

The library associations have also backed commercial ventures seeking to distort the fair use and first sale doctrines in copyright law, revealing a shortsightedness that is hard to fathom—both because it turns allies into antagonists, and because some of those commercial ventures would swallow the role of many libraries. Equally naïve is the tacit endorsement library groups have given to the Internet Archive’s invented theory of “Controlled Digital Lending,” which would aggravate the economic precarity of authors and would be hazardous to libraries everywhere.

If IA’s founder Brewster Kahle achieved his stated ambition to build a free repository for “every work ever created,” what do the library associations imagine happens next? While the number of professional writers would be decimated, libraries across the country would be shuttered as obsolete relics. After all, if one segment of a community will vote to defund the local library for hosting Drag Queen Story Time, and the readers in that same community can get everything from a central database on the web, who will pay to keep a library’s doors open and why?

And before long, which entity is really going to own and control that universal repository of everything? Google? Amazon? Meta? If you think localized book bans are bad, imagine Meta and its invisible star chamber influencing books the way they currently moderate comments on Facebook. I would think most librarians are wise enough students of history and current events to see where weakening authors’ rights can lead, which brings us to the question of who convinced these associations to pursue copyright boondoggles and make unnatural adversaries of authors?

Ivory tower academics and lobbyists who receive substantial funding from the tech industry are at the forefront of all efforts to weaken authors’ rights, including initiatives alleged to be in the interest of libraries. Just review the names of the amici who filed for the defendant in Hachette et al v. Internet Archive, and it will not take long to see the intersection of Big Tech money and advocacy of IA’s false claim to be a surrogate for “all libraries.” Such proximity to Silicon Valley should be a bright yellow flag for the ALA, but like the frog carrying the scorpion, they remain willfully blind to the true nature of that industry and its utopian promises.

Librarians on the front lines in the contemporary assault on literature should keep in mind that there is more than one way to prevent a book from being read; and censorship, infuriating as it is, has often been defeated by the market. A far more effective means to silence a multitude of writers would be to ensure that their books are never written in the first place, and one way to achieve that end is to weaken the copyright rights of authors and further limit their power to change the world.

What Problem Do Those eBook Bills Address Anyway?

In late December, New York Governor Kathy Hochul vetoed the state’s library ebook bill, acknowledging that the law would be preempted by the Copyright Act. In mid-February, a district court in the State of Maryland, responding to a lawsuit filed by the Association of American Publishers (AAP), ordered a preliminary injunction suspending that state’s ebook law, also on preemption grounds. Recognizing which way the wind was blowing, Kyle Courtney of Library Futures Foundation drafted a letter on February 1 to the House Committee on Corporations of the Rhode Island State legislature proposing amendment to that state’s bill, writing:

…we are advising, based on the current landscape involving litigation and vetoes of similar eBooks laws in other states, that you consider friendly amendments below that will effectuate enough changes in H7113 to help avoid running afoul of the challenges documented below with respect to activities in other states.

What follows is a recommendation that Rhode Island remove one paragraph demanding that publishers license to libraries et al., which the footnote describes as the language in direct conflict with federal law. However, the remaining provisions of the bill still invite a preemption challenge because they presume to dictate terms and pricing models to publishers in conflict with the principle that copyright protects the author/owner’s right to decide the manner in which a work is made available. Hence, the provisions that would remain in the RI bill, as well as nearly identical bills in five other states, may still be construed as unconstitutional state compulsory licenses.

As Courtney’s letter emphasizes, the strategic approach taken by the various lobbying organizations pushing for these bills is to present the subject in the context of state contracts while seeking to remedy a consumer protection problem—namely, the alleged “unconscionability in licensing” practices by the publishers. But so far, the organizations lobbying for these bills have yet to support the accusation that current ebook licensing regimes are extortionate and/or that they are causing a disruption in a library system’s ordinary capacity to serve its community. And that’s to say nothing of presenting a compelling case in every state in which these bills have been introduced.

It is no surprise the American Library Association (ALA) et al. have not presented a thorough argument, because it would be a hell of lot of work. To assess whether a given market is underserved (in any context) requires a considerable amount of research and evidence, including counterfactuals, polling, budget analysis, etc. In this instance, it would be a rather large data-science project to manage and model all the relevant inputs, like overall reading trends, library-use trends, preferences for digital vs. physical materials, and cultural and economic data, to determine whether, and where, the ebook borrowing market is underserved and conclude that the licensing models are the cause.

Instead of doing any of that homework, what associations like LFF and the ALA have done instead is to compare the consumer price of an ebook purchase (e.g., $18) to a library price of an ebook license (e.g., $55 for 2 years), then cry foul and draft legislation to resolve this apparent injustice. But if state lawmakers are going to accuse the publishers of unfair practices to justify a law that flies in the face of the Copyright Act, it should demand more evidence than these two numbers alone. Or if state lawmakers are going to elide all complexity in favor of blunt metrics, then why not simply recognize that three times the price to make an ebook available to fifty times the readers hardly sounds like extortion by any reasonable definition?

The Mid-Hudson Library System

Although I certainly do not have the resources or data-science chops to do the kind of research mentioned above, I did a little digging into the Mid-Hudson Library System (MHLS), which serves my home region, just to see what I could learn.

One of 23 systems in New York State, MHLS comprises 76 small-town and public-school libraries in five counties with a total population of more than 686,000 (~ 258,000 households) earning a median income of about $76,000/year. The 2021 budget for the library system was just under $4 million, a little more than half of which comes from statewide and local taxpayers. In 2021, MHLS spent about $90,000 (2.25% of its budget) on digital lending materials, through a few different marketplaces, and presumably using more than one licensing model.

For example, OverDrive, one of the major marketplace platforms where librarians license digital materials, makes ebooks available under three different licensing models. Through Simultaneous Access, certain publishers offer package deals for multiple titles up to a certain number of loans. In the One Customer One Use model, presumably for back catalog or less popular books, the licenses never expire. And the model most often used by the major publishers for the most popular books is Metered Lending, which offers one or two-year licenses and/or limits the number of loans per license.

In 2021, MHLS ebook circulation was ~ 314,000, and the first three months of 2022 are tracking toward a similar total. Even at the unrealistic frequency of one book per unique patron, that would be less than 1/3 of the total population in the system, which likely says more about demand than it does about supply. In fact, at the national level, although ebooks and audiobooks continue to occupy a greater percentage of a library’s collection, print book borrowing is still 518.92% higher than ebook borrowing as of 2019.

Looking at the catalog, it appears that MHLS offers about 10,000 ebooks (70% fiction/30% nonfiction), presumably under more than one licensing model. But even if all 10,000 were licensed under Metered Lending at a rate of $55 for two years, this amounts to a cost of about $1.07/year per household in the system. Alternatively, we can estimate that a two-year license of $55, at a maximum rate of one loan every two weeks ($55 / 52 readers), is a Cost Per Loan (CPL) of about $1.06.

So, the numbers available do not seem to justify even a hypothesis that ebook licensing is unduly burdensome or is resulting in underserving the MHLS community. And the overall demand nationwide for borrowed ebooks hardly justifies the rhetoric of the lobbyists, who would have us believe that a literature-starved public is suffering on the libraries’ virtual steps at the mercy of the big publishers. When an expenditure is just over two percent of the operating budget, one must step back and look more holistically at the question presented.

Collections Are a Fraction of a Library’s Expense

The data collected in the Institute of Museum and Public Services (IMLS) Public Library Survey reveals that libraries’ costs are increasing for personnel and general operating expenses while costs are trending downward for collection materials—especially the cost of ebooks and audiobooks. Noting that most libraries spend an average 10% of their annual budgets on their collections overall, an article in Wordsrated summarizing the IMLS Survey states, “The drop in price per item is due to library collections becoming increasingly digital. This is because the price per digital item has declined significantly. All while the average cost per book increased 10% since 2003.”

The statistical trends in the IMLS Survey suggest that libraries are going through a lot of transition these days—as collections become more digital, as physical spaces are adapted to provide more programs and services, and as overall reading and borrowing habits continue to shift in the market. Change in any system presents both opportunities and challenges, and it is a safe bet that not every local library will, or can, adapt in the same way. But if the data show that ebooks are, as of 2019, “the cheapest material in a library’s collection,” then why on Earth is this the moment to lobby for these ebook bills in the states?

The answer to that cannot be, “Well, if the prices were even lower, we could do more.” Yeah. That’s how everything in life works. But for one thing, as much as publishers and authors care quite a bit about library patrons, it is not incumbent upon them to outright subsidize the libraries as they navigate the changing landscape—let alone by mandating that the publishers remain bound by old models so that libraries can adapt to new ones. That’s not a symbiotic relationship.

Looking forward, neither the libraries nor the publishers can say what the trends will be in five or ten years, but the libraries should be cautious about putting too many eggs in the ebooks basket. What happens to the relevance of the seventy or so local libraries in MHLS if the system plays an outsized role as a conduit for ebook lending? Don’t at least some taxpayers or prospective donors in each town begin to wonder why they need to keep paying the librarians and maintaining the buildings? Perhaps the local librarians should look at the data and ask whether ALA, LFF et al are doing them any favors.

Of course, knowing the track records of the people behind these ebook bills, it is fair to doubt that they are trying to solve a problem at all but are instead pursuing a broad, anti-copyright agenda. The tone of Courtney’s letter, for instance, makes clear that he (and his colleagues) object to the legal doctrines on which the NY and MD bills were opposed and that his recommendations to RI are a begrudging pivot in strategy to achieve the same ends by a slightly amended rationale.

But to oblige any copyright owner to make a work available under terms mandated by state law invites substantial conflict with federal law and the authority of Congress alone to amend that law. Consequently, no state legislature should embark on such an adventure without a compelling and thorough analysis of the problem allegedly being solved. And so far, the lobbyists for these ebook bills have presented little more than a melodrama barely worth reading at any price.

AAP Sues Maryland over eBook Licensing Law

“Remarkably, the Maryland Act subjects publishers to civil and criminal liability for attempting to exercise their exclusive rights in the very manner envisioned by the federal statute.” – Complaint in AAP v. Attorney General of the State of Maryland.

It is inherent to the exclusive rights of the Copyright Act that authors may decide the manner in which their works are made available. When, where, and at what price to release a novel, a motion picture, a record album, etc. to the public is implicitly the sole right of the copyright owner, and the case law is replete with affirmations of this principle. The Constitution empowers Congress to secure the rights vested in authors, and as of the Copyright Act of 1976, federal copyright law preempted common law copyrights to bring the U.S, under a uniform code in the interest of justice and administrative sanity.

Yet, at the urging of a handful of library associations, the State of Maryland was the first of several states to enact a law, which amounts to a state compulsory license on eBooks. Rhode Island and Massachusetts have similar bills in the works, and New York’s eBook library licensing bill only awaits the governor’s signature.

On December 9, the Association of American Publishers (AAP) filed suit against the Attorney General of the State of Maryland, seeking to bar enforcement of the Maryland Act, which would take effect on January 1. The lawsuit was inevitable. The Maryland Act is unconstitutional as a matter of law; it does not address a real problem as a matter of policy; and it is downright insidious as a tactical move in a broader strategy to weaken copyright law for all creators of works.

The mechanisms in the Maryland Act, which implicate exclusive copyright rights, include the requirements to:  1) make all eBooks available to libraries in the state simultaneously with making them available to the state’s consumer market; 2) allow state libraries to obtain unlimited eBook licenses; and 3) make eBook licenses available on “reasonable terms.”

The availability mandate reveals that these bills are predicates to more than eBooks because, for instance, libraries also lend motion pictures, whose producers often depend on windowing releases as part of their market strategy. The unlimited license provision elides the fact that a single eBook library license may serve dozens or hundreds of readers in contrast to a consumer’s purchase of a single eBook. And that omission conspires with the uncertainty that “reasonable terms” is undefined in the Maryland Act, which means the state would be setting terms, and therefore, supports the conclusion that this law amounts to a compulsory license.

The Maryland Act is Unconstitutional

Setting aside all other matters, I predicted in my last post on this topic that any federal court will likely hold that these bills are unconstitutional on the basis that the Copyright Act preempted the panoply of state copyright laws that existed prior to the 1976 Act. Jonathan Band, who lobbies for both the American Library Association (ALA) and the Computer and Communications Industry Association (CCIA), alleges that preemption does not exist here, saying that the Maryland Act only “regulates licensing terms” (akin to contracts), which is outside the scope of the exclusive rights secured by the federal copyright law. This is verbal legerdemain.

If a state enforces a law, under pain of civil and criminal penalty, dictating the terms by which a copyright owner may exercise his rights, then under the walks-like-a-duck doctrine, that is what we call a state imposed compulsory license. And because it is the sole purview of Congress to codify compulsory licenses in the federal copyright law, preemption clearly applies. Congress has never codified a compulsory license for literary works, and we should also note that the compulsory license for musical works is a relic of a bygone era doing considerable harm to songwriters in the digital market.

The eBook Bills Do Not Remedy a Problem

There is a reason why the library associations who have lobbied for these state bills, speak in generalities and platitudes like “being shut out of the marketplace of ideas.” Because they do not present real data to support a claim that these state bills serve an unmet need among the library-going public. Most of the publishers (certainly most of the majors represented by AAP), already release new titles to libraries concurrently with releases to the buying public. So, that’s not really a complaint.

If the libraries allege that eBook license fees are onerous, they should be required to support that claim with numbers while acknowledging that eBook lending is distinctive from eBook selling, and then demonstrate how their constituents are underserved as a result of current licensing models. As mentioned in other posts, the libraries may not want to go there because their own lending data do not reveal a public clamoring for works of history and literature which they otherwise cannot access. So, it’s easy for the library groups to lodge general complaints and plead for overreaching laws while the publishers’ more difficult task may entail making decisions about format, timing, or pricing to give a specific title its best shot in the market.

Further, as the AAP complaint states, “The Maryland Act is not a reasoned response to any broad concerns in the digital market. To the contrary, it appears that the state law is motivated by discontent with a single technology company that has at times refused to distribute to libraries the ebooks and audiobooks that it publishes. The Maryland Act’s legislative history and public statements by state legislators and public officials reveal some very specific concerns about this company, Amazon, which is not an AAP member.” [emphasis added]

Amazon behaving badly and making a mess for everyone else? Hardly a stretch, right? That company has exerted so much predatory influence across so many markets, including publishing, that it deserves its own antitrust division at the DOJ. But if the AAP complaint is based on an accurate read of the legislative background, it sounds like the parties lobbying for these bills and gaining the sympathies of legislators maybe using the word publisher, when what they really mean is Amazon. But, of course, we must remember that these state bills have very little to do with access to eBooks.

Weakening Copyright Law is the Goal

These eBook bills are not about addressing a narrowly defined problem faced by libraries. Libraries enjoy many carve-outs in the copyright law, and if they have sufficient evidence to argue for a new and specific exception vis-à-vis eBooks, then directly lobbying Congress for such a provision would be more honest and more efficient. But the agenda driving these bills is anything but narrow. Aside from the implications for other categories of works (like motion pictures mentioned above), the various interests backing the eBook library bills knew they would be litigated, and they probably know that they will probably lose.

We see this tactic employed in other areas of public policy all the time. When openly lobbying for legislative change in Congress may be untenable, one group or another devotes its resources to passing state laws, which are certain to be challenged in court, where even losing can be useful. Either some judge in the process writes a compelling dissent, or merely racking up a scorecard of court losses can become a foundation for appealing to Congress to amend federal law. The strategy itself is not inherently sinister. It depends on one’s view of the end justifying the means.

Here, the end is to chip away at copyright rights with the same strategy employed by those who seek to limit other constitutional rights until, for instance, the exclusive rights in copyright law are little more than a bundle of compulsory licenses for all categories of works. And as Chris Castle describes in his post on this topic, who ultimately benefits the most from such a regime? Google and Friends. And the irony there, as I have also discussed before, is that the library associations are woefully shortsighted. Amend the copyright law as they seem to envision, and a host of commercial tech ventures will not just devour the economic value of authorship but will also set fire to libraries without lighting a match.

Photo by: nito