US publishers object to the passing by the States of New York and Maryland of laws regulating the licensing of e-books to public libraries

By Emmanuel Legrand

The state of New York's Assembly and Senate have passed on June 10 bills that would require “publishers who offer to license e-books to the public” to "offer licenses for electronic books to libraries under reasonable terms." By doing so, New York becomes the second state in the US to enact legislation related to the licensing on e-books, following Maryland, which passed into law on June 1.

  The New York bills (S2890B in the Senate and A5837B for the Assembly) defined "reasonable" terms as including the following:

  > A limitation of the number of users to whom the libraries may simultaneously provide access to the electronic books;

  > A limitation on the number of days the libraries may provide a user access to the electronic book;

  > The use of technological of technological protection measures that would prevent a user from a) maintaining access to the electronic books beyond the access period set forth in the license, and b) providing other users access to the electronic books.

An unfair burden on public libraries

  However, reasonable terms do not include "a limitation on the number of licenses for electronic books libraries may purchase at the same date available to the public."

  A violation of the provisions in the bill could result in court proceedings. If a violation is determined by the court, it could result in a civil penalty of $500 for the initial offense, while a second offense and any offense thereafter could result in a civil penalty not to exceed $1,000.

  The bill was made necessary, according to its sponsors, because "some publishers are introducing practices that significantly interfere with libraries' ability to continue to provide their patrons with equitable access. In particular, there are e-book embargoes in place that restrict the timely availability of e-books to public libraries. These embargoes place an unfair burden on public library systems that are forced to wait eight weeks to purchase more than one license for a title. Such embargos undermine the democratic and educational function of library systems."

Prohibiting harmful practices

  In the presentation of the bill, Senator Rachel May wrote: "This bill establishes in statute what constitutes reasonable and unreasonable standards for e-book licensing to New York's public libraries. It requires publishers who offer to license e-books to the public shall offer such books to libraries on said reasonable terms. In doing so, it ensures that widely accepted and effective industry practices remain in place while prohibiting harmful practices that discriminate against libraries and harm library patrons."

  The Association of American Publishers (AAP) has been opposing the bills. In her recent address at the organisation's AGM, AAP CEO Maria Pallante (pictured, below) said she was concerned about interest groups attempting to “divert copyright protection away from Congress to state assemblies.”

  In a position brief related to the issue in Maryland, the AAP did oppose the bill and was very clear about the reason it should not be passed: "SB432 would undermine the long-established and unambiguous federal legal framework enacted by Congress to govern the distribution of copyrighted works by forcing publishers to license digital works to all Maryland public libraries under undefined “reasonable terms” if the digital works in question have been otherwise made available to the public."

Fundamental due process concerns

  The author of the brief, AAP General Counsel Terrence Hart, wrote that there were many reasons why the legislation is vulnerable to challenge. "First, federal copyright law preempts it. Second, the mandatory license created by SB432 would force an involuntary transfer of ownership that is prohibited under section 201(e) of the Copyright Act. Third, the bill would impermissibly regulate both interstate and out-of-state commerce by specifying conditions on which out-of-state publishers do business. Finally, the proposed legislation raises fundamental due process concerns, as it does not define what 'reasonable terms' are or provide any means for publishers to know whether the terms they offer violate the law and expose them to penalties."

  The Authors' Guild, in its opposition to the Maryland bill, wrote that "by creating a mandatory license, and compelling authors to make their works available, the legislation prejudices the freedom of expression rights of authors and their publishers."

  The bill is now going to the desk of GovernorAndrew Cuomo, who could either sign it into law or or veto it (Maryland's laws will take effect in January 2022). Sources it could take weeks, if not months before Cuomo has to make a decision on the bill, which opens a window for publishers to try to convince him to veto it. 

Hope for a veto from Gov. Cuomo

  "There's a hope [in the publishing community] that Cuomo would veto a bill on an issue that is pre-empted by the Copyright Act," said a source. "Most publishers are based in New York, so it's unclear why the legislature would pass a bill that would impact one of the most vibrant industries in the State."

  If signed by Cuomo, the bill be implemented within 19 days after it was passed into law. New York would then become the second state in the US to have passed an e-books licensing bill.