By Caitlin Dewey
Stateline, an initiative of The Pew Charitable Trusts, provides daily reporting and analysis on trends in state policy. Read more at Stateline.org.
Librarians and their legislative allies are pushing publishers of electronic books to lower their prices and relax licensing terms, an effort that could make it easier for millions of library users to borrow the increasingly popular digital versions of books.
Supporters say the e-book lending legislation in several states would allow libraries to offer more digital material and shorten waitlists for popular titles. Over the long term, the measures might shore up libraries’ core mission in an increasingly digital environment.
“The current model is frustrating for libraries and archives whose service mission is totally different from the capitalist goals of a for-profit company,” said Kyle K. Courtney, the copyright adviser for Harvard University and a founder of Library Futures, an advocacy group pushing for the bills. “We have dealt with publishers and rights-holders for centuries, but it’s never been as bad as it is now.”
Since the early 2010s, libraries and publishers have clashed over the terms and costs of e-book licenses, which grant libraries permission to loan digital books. Such licenses now typically expire after a certain amount of time or number of loans. Libraries also must pay several times the cover price of equivalent print versions.
Publishers argue that the markups and other restrictions protect authors’ intellectual property rights and incentivize companies to invest in their work. As the cost of e-book licenses has continued to rise, however, librarians and their advocates in at least nine states have pushed for legislation that would require publishers — especially the “Big Five” publishers that produce the overwhelming majority of consumer books — to offer libraries more “reasonable” licensing terms.
State lawmakers have given such bills bipartisan support, but several measures have faltered before states could implement them. New York Democratic Gov. Kathy Hochul vetoed her state’s e-book bill in late December, citing copyright concerns. In June, a federal judge in Maryland dealt the movement a second blow, ruling that federal law preempts states’ attempts to regulate e-book licenses.
Undeterred, librarians and lawmakers in states including Maryland, Massachusetts and New York told Stateline they are preparing a new legislative strategy ahead of next year’s sessions. The new bills seek to evade the stumbling blocks that scuttled the legislation in Maryland and New York.
Rising Prices, Restrictive Terms
Librarians’ latest legislative push comes after two breakneck years for digital loans. Such checkouts (including e-books, audiobooks and digital magazines) exceeded half a billion in 2021, according to OverDrive, the largest distributor of digital library content — up 55% from two years before.
In response, many U.S. libraries have rapidly expanded their digital collections and shifted spending to e-books and digital audiobooks. Libraries rarely “own” e-books, however. Instead, they license the right to loan them out — a model more like buying software than shopping at a bookstore.
Under this arrangement, publishers can set expiration dates on e-book licenses, limit the number of times an e-book can be borrowed, delay sales to libraries or refuse them access altogether. Today, it is common for e-book licenses from major publishers to expire after two years or 26 borrows, and to cost between $60 and $80 per license, according to Michele Kimpton, the global senior director of the nonprofit library group LYRASIS.
In 2019 testimony to Congress, the American Library Association emphasized the disparity between consumer and library e-book prices, using the 2014 bestseller “All the Light We Cannot See” as an example. While consumers paid $12.99 for a digital version, the same book cost libraries roughly $52 for two years, and almost $520 for 20 years.
“E-books used to be on libraries’ digital shelves forever, but now you’re paying $60 for a title every two years,” said Kimpton. “That definitely is not favorable for libraries, but that’s kind of where we are right now.”
In addition to straining limited budgets, which since the early 2000s have remained roughly flat in most places, librarians say current licensing models have hollowed out their digital back catalogs and skewed their current collections. Forced to spend more money on fewer books, librarians inevitably focus on bestsellers, titles by big-name authors and new installations in popular series, said Michael Blackwell, the director of the St. Mary’s County Library in Southern Maryland.
That overlooks books by new and emerging authors, midlist books and some older books with expiring licenses. Patrons often still wait weeks or months to borrow popular titles.
“We believe many people across the country are being disadvantaged,” said Blackwell, who also leads the global library coalition ReadersFirst. “You shouldn’t need to have a credit card to be an informed citizen.”
‘Something Has to Be Figured Out’
Regulating e-book licenses has proved challenging, however. In the past two years, at least nine states — including Connecticut, Illinois, Massachusetts, Maryland, Missouri, New York, Ohio, Rhode Island and Tennessee — have considered bills that would require publishers to license e-books to libraries at “reasonable” prices and terms, often leaving the word “reasonable” to future interpretation.
Last year, lawmakers in Maryland voted unanimously to approve the e-book bill that would have barred publishers from delaying e-book sales to libraries, among other provisions. In New York, only one of the legislature’s 211 voting members opposed the bill to establish civil penalties for publishers whose licensing terms unfairly restrict e-book access.
The issue has generally been nonpartisan, said Alan Inouye, the senior director for public policy and government relations at the American Library Association. On the political left, e-book licensing is a matter of equity and equal access to knowledge; on the right, lawmakers have sometimes framed costly and restrictive licenses as a poor use of public dollars.
But federal law does not allow states to limit the exclusive rights of copyright holders, said Sandra Aistars, the director of the Arts and Entertainment Advocacy Clinic at George Mason University’s Antonin Scalia Law School. Publishers are “totally free” to set different prices and terms for different markets, allowing them to experiment in the marketplace and “more granularly meet consumer demand,” she added.
Publishers and their supporters also have argued that the industry can reasonably differentiate between libraries and consumers because they buy different products. While consumers purchase individual access to an e-book, libraries purchase the right to disseminate it to the public.
Last December in New York, Hochul vetoed the e-book bill after intense lobbying from the arts and entertainment industries. She noted that federal copyright law gives authors exclusive control to decide how they share their work. That same month, the Association of American Publishers filed suit against Maryland’s e-book law on similar grounds. In June, a U.S. District Court judge ruled that federal copyright law preempts Maryland from regulating e-book licenses.
“Libraries are an important part of the copyright ecosystem as authorized distributors,” said Terrence Hart, the general counsel for the Association of American Publishers, in a statement to Stateline. “There won’t be anything to distribute if states destroy the incentives and protections of authors to license and exploit their exclusive rights to their works.”
Advocates and lawmakers in several states now say they’re preparing to introduce revamped e-book bills that can withstand legal scrutiny — though federal law still would preempt any state law that infringes on copyright, Hart said. One model, developed by Library Futures, contends that states can regulate e-book terms under contract and consumer protection laws.
Lawmakers in Massachusetts already have worked with Library Futures to amend their e-book bill, said state Rep. Ruth Balser, a Democrat who co-sponsored an earlier version last year. That measure did not pass out of committee, Balser said, because legislators first hoped to see how the Association of American Publishers lawsuit played out in Maryland.
Advocates in Maryland, meanwhile, are preparing a prospective bill that would ban public libraries from engaging in “unfair” contracts, potentially cutting large publishers off from the state’s library market.
Lawmakers and library groups in New York also have begun discussions on how they can “tweak” the bill Hochul vetoed, said state Assemblymember Josh Jensen, a Republican co-sponsor of New York’s failed e-book bill. As a teenager, Jensen worked in a local library reshelving books.
“I was frustrated, obviously,” Jensen said of the governor’s veto. “But I think something has to be figured out. We’re not looking to dictate terms here — we’re just saying there has to be reasonable terms and good faith. It’s a very common-sense argument.”