Tag: library associations

NY Gov. Hochul Vetoes eBook Lending Bill

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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.

Familiar Tactics

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.

Why is the press so bumfuzzled about copyright issues?

During a recent scan of the Authors Guild discussion boards, where I look for copyright related comments, I noticed a couple of authors mentioning how dismayed they were to hear the NPR show 1A host a one-sided conversation about the Internet Archive being sued by several major publishers. The program, which aired on December 7, hosted Internet Archive founder Brewster Kahle, along with Melanie Huggins of the American Library Association and John Bracken of the Digital Public Library of America.

The segments of the show extolling the virtues of libraries and discussing their digital futures were valid conversations worth having, but my friends at AG were right to take issue with the producers at 1A in regard to the conflict between Internet Archive and the publishers over copyright infringement. WAMU had provided a forum for advocates of policy positions directly opposed to authors’ interests and did so without inviting any authors to participate. Instead, as the press often does it seems, 1A amplified the too-simple narrative about King John publishers and Robin Hood librarians, as if the writers of the books necessary to both institutions do not have anything to say on the matter.

If 1A and others don’t want to host a serious conversation about the legal doctrines implied by the theory called “Controlled Digital Lending,” or they don’t want to discuss the library associations’ hopes to amend §109 of the Copyright Act, fine. If they don’t want to invite counsel for the Association of American Publishers to debate these nuanced legal matters, so be it. But before providing yet another platform for those who promote the “evil publisher” narrative, perhaps some consideration for the relationship between publishers and writers is warranted.

I don’t know. Maybe Macy’s will never talk to Gimbels. Because it seems to me that public radio shows feature in-depth interviews with authors all the time. Clearly, somebody in the ambit of NPR understands that before publishers or libraries can make books available, writers have to write them. And writing books is what we call work. And using anyone’s work without license is what we call exploitation, which is precisely what writers feel when Brewster Kahle (who is a multi-millionaire, by the way) and the executives at library associations presume to make books available in ways that contravene licensing regimes governed by copyright law.

It is very disappointing when journalists in a position to shape public perception on background issues like copyright law are apparently so star struck by Kahle’s utopian shtick that they ignore the individuals whose lives would be affected by the ideas he and his friends are promoting. I wonder if the producers were even aware that Kahle lied at the top of the program about the publishers’ lawsuit, when he flatly stated, “They’re accusing the Internet Archive of lending books,” and then further insinuated that the lawsuit came out of the blue at the start of the pandemic.

Commenting as a lifelong liberal, I can say that was Kahle throwing red meat to a presumably liberal audience, no less bloviating bullshit than anything that ever flowed from the maw of Jim Jordan. Because in this case, Kahle omitted the crucial detail that what triggered the lawsuit was his decision to release 1.4 million books without license or restriction, describe the move as a “National Emergency Library” (NEL), and claim that it was Internet Archive’s response to an urgent need during the early days of the COVID shutdown. (See post here for discussion.)

But Kahle is not so naïve and innocent as he presented himself on the broadcast. The NEL was a stunt—one worthy of Barnum—that seized upon the emergency atmosphere of the first wave in the pandemic to advance a broader anti-copyright agenda. And he had to know it would force the publishers to sue. Like any activist, Kahle wants to control the narrative, which is an understandable tactic but should be seen as a tactic, and one that had nothing to do with responding to a public need, let alone showing any respect for authors.

Unfortunately, the producers at 1A, like much of the press, seem to remain blissfully unaware that the copyright agenda promoted by Kahle and the library associations is not narrow but would, if achieved, affect professionals across most if not all areas of copyrighted works. So, in this regard, perhaps they might take a glance at their own web page, read ©WAMU at the bottom, and ask themselves what that means in the broader conversation they are not quite having.

Library Associations Pursue Misguided eBook Licensing Laws

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Recently, the New York and Maryland state legislatures passed nearly identical eBook licensing bills (and Rhode Island had a sister bill in the works) responding to complaints of inequity by various library associations. Couched in the rhetoric of seeking “reasonable terms” on behalf of readers, and claiming to be neither anti-publisher nor anti-author, what the libraries have in fact advocated with these bills is an end run around copyright law. I say this because the key provisions of the legislation amount to state compulsory license regimes, which means they are almost certainly in conflict with federal statute.

The bills contain three mandates: 1) that publishers license eBooks to libraries at the same time they license them to the consumer market; 2) that publishers provide an unlimited number of licenses to libraries; and 3) that publishers make eBook licenses available “on reasonable terms.” While most publishers already choose to fulfill the first demand, the fact remains that any state law directing a publisher to make works available under any conditions undermines the exclusive rights of copyright owners as codified by federal law. Meanwhile, the ambiguity in the expression “reasonable terms” is likely to be a catalyst for a lot of unnecessary, and ultimately futile, drama related to these matters.

Although the state bills do not explicitly mention renegotiating licensing fees for libraries as a provision for arriving at “reasonable terms,” it is a matter of record that the library associations allege that library eBook licensing is too expensive. And it is clear from the press release issued by the Maryland Library Association that the libraries intend to negotiate lower licensing fees with the backing of state government, which begins to take on the color of a compulsory license regime, as stated above.

What the libraries will say in response is that they simply want eBooks licensed to them at the same rates as the consumer market, which is usually the point in the narrative when they introduce rhetorical statements about “fairness” and “access” and “underserved markets,” obfuscating the fact that eBook lending is objectively a different animal than eBook ­selling.

Buy a new eBook, and perhaps a whole family reads it for, say, $12. License that same eBook to a library system for the same price, and it is made freely available to perhaps hundreds of readers in a single year. It does not take deep knowledge of the publishing industry to see how those two paradigms are different. Now, add unlimited licensing on the day a title is released to the consumer market, and the publishers (and by extension authors) are being compelled by state law to effectively treat libraries as though they are ordinary consumers while, at the same time, accord them preferential treatment as public institutions designed for lending.

Consequently, we should not be surprised if the publishers litigate the constitutionality of these state bills on the grounds that they are preempted by federal copyright law. Section 106 of Title 17 unequivocally grants the exclusive rights to make works available on terms determined by the copyright owners. It is, therefore, almost impossible to imagine the federal court that will not find that state legislatures have no authority whatsoever to determine what constitutes “reasonable terms” for licensing copyrighted works to libraries or any other party.

The Politics of Information

Although these bills have solid bipartisan support in all three states for the moment, I suspect this has a more to do with the short-term politics of capitalizing on vague declarations like the Maryland Library Association alleging they “were shut out of the marketplace of ideas and information.” Assuming these bills are eventually defeated in federal court several years from now, I would not expect to see many of the legislators who voted for them losing any sleep over the issue. They will have scored political points and moved on.

And that brings us back to what I said at the beginning about how bewildering it is to watch library associations spend millions of dollars and tens of thousands of hours on potentially futile legislative agendas and, in the process, foster an antagonistic relationship with their only natural partners—publishers and authors. As a New York State resident, I would like to know exactly how onerous eBook licensing is relative to the resources being spent to lobby for these ill-fated state laws and similar initiatives.

And as an American citizen watching current events, I will unapologetically cast a jaundiced eye upon the libraries, or any other institution, that claims to serve the “marketplace of ideas and information” as a rationale for its policy agenda. In case the librarians aren’t following the headlines, ideas and information are in deep trouble, and not for lack of access. On the contrary, rampant conspiracy theories and absurd narratives counter to empirical evidence are being actively pursued and spread by tens of millions of Americans who have plenty of access and believe they are informing themselves. So, let’s drop the highfalutin rhetoric and talk brass tacks.

Libraries already license millions of eBook titles, including frontline and backlist books, and yet, according to market data, most avid readers still prefer buying physical copies. Moreover, library industry statistics indicate that the leading category in loaned material is cookbooks, followed by thrillers. Not that there is anything wrong with either, but libraries very likely play a more modest role in the “marketplace of ideas and information” than they like to claim while advocating changes to copyright law.

On this subject, if what many libraries are really responding to is that their most loyal visitors are complaining about being put on wait lists for the latest Harlan Coben thriller (meaning no disrespect to Mr. Coben), since when is this longstanding practice a hardship? At what point did libraries decide they are entitled to provide the immediate access offered by retailers while continuing to enjoy preferential treatment and statutory carveouts as institutions designed for free lending?

I think the answer to that is the moment everything went digital, the promise of instant access muddled everyone’s thinking and fostered a sense of entitlement to all works at the touch of a button, and at a price of free or almost free. Were this in fact the paradigm, it is a guarantee that certain authors would never write books again and that certain new authors would never write books in the first place.

Rightsholders in other categories (partly because libraries loan more than literary works through digital portals) should take note that these state bills are viewed by the library associations as one step in a larger agenda to amend—or for some parties, simply gut—American copyright law. As discussed in this post, the library groups hope to amend specific areas of the federal law while claiming that their agenda is neither anti-author nor anti-publisher.

But several of the proposals made by library associations (like advocating digital first sale) imply such a naïve understanding of the commercial digital market that they fail to recognize how, in the long run, the library advocates would only hasten the obsolescence of libraries themselves. So, perhaps the library associations’ resources would be better spent on renewed, good-faith negotiations with publishers, or, perhaps, collaborating to increase library funding. Because once upon a time, in a world before the invention of the eReader, publishers and libraries had mutual interests. And they still do.

Photo by: racorn