The Attorney General of Maryland, Brian Frosh, told a federal district court in a filing this week that Maryland will offer no new evidence in a legal challenge brought by the Association of American Publishers (AAP) against the state’s recently enacted library e-book licensing law. The state’s demurral removes any obstacle to the court converting its preliminary injunction against enforcing the provision into a permanent injunction, effectively rendering the law a dead letter.
The law would have required that any publisher that licenses its e-books for consumers in the state license to libraries as well on “reasonable” terms, creating, in effect, a compulsory license within Maryland. In her initial ruling imposing the injunction, federal district judge Deborah Boardman cited the statute’s clear conflict with federal copyright law, which provides authors (or their assignees) the exclusive right to determine how their works will be distributed. A similar law in New York was vetoed last year by Governor Kathy Hochul on the same grounds.
Copycat laws remain pending in several other states, including Rhode Island, Connecticut and Massachusetts, but in light of the court’s ruling in Maryland, along with the New York governor’s veto, their prospects would appear dim.
The New York and Maryland laws arose from a long-simmering dispute between publishers and public libraries over what the libraries claim are overly restrictive and expensive e-book licenses. It erupted in 2019, when Macmillan Publishing imposed an embargo on licensing front-list e-book titles to libraries over what it claimed were free digital loans’ negative impact on hardcover sales. The other four members of the Big Five houses never went quite that far, but all tightened their policies by requiring regular renewal of licenses by libraries or by capping the number of loans permitted.
The solons behind the various state bills may harbor a sincere, good-faith belief that they were merely supporting state-supported free public libraries and protecting consumers. But the striking similarity among the bills in multiple states smacks of an orchestrated campaign to create new law on digital redistribution of copyrighted works on a state-by-state level without having to confront the federal Copyright Act head-on.
The U.S. Copyright Office, as well as every court that has looked at the issue, have held that the redistribution of digital works is infringing because, unlike the transfer of physical copies, which is permitted under §107 of the Copyright Act, digital transfers unavoidably involve a reproduction of the original file — if I send you a file you have a copy but I still have mine — which the law does not permit without the permission of the copyright owner.
From a political organizing perspective, public libraries and librarians make pretty attractive poster children for someone looking to advance an anti-copyright owner agenda. No politician, expect perhaps for MAGA-addled book-banners, wants to be seen as anti-library. The New York law, for instance, passed the state assembly 148-0, and the state senate by 62-1.
Publishers, sadly, have also made themselves easy targets. They have been accused more than once of e-book price-fixing and in 2012 the Department of Justice hit Apple and the Big Five with a civil antitrust suit.
The easy target is not always the correct one, however.
Far from being digitally deprived, a study published in February 2022 by the not-for-profit research group WordRated, involving 17,500 libraries in all 50 states, found that U.S. public libraries are actually more digital — and more popular — than ever.
While in-person visits to brick-and-mortar library locations have declined by 21% from 2009 to 2019, and the number of books being borrowed is down by 19%, the total number of registered borrowers was at an all-time high, at 174 million, or more than half the U.S. population. Borrowers were also more active than ever, checking out an average of 16.9 items, both physical and digital, in 2019, up 11% from 2014.
The size of library collections are also larger and more digital than ever. The total collection size at U.S. public libraries grew by 113% over the 10 years of the study, peaking in 2018 at 1.9 billion items.
Notably, digital items now represent more than half of all collections, rising from 1.9% in 2009 to nearly 55% in 2019.
Total e-book collections, in fact, are now nearly as large as print books.
Public libraries are also running more programs than ever, and more peopling are attending or participating in those programs, driving up collection use.
The digital transformation of libraries has also driven down the average cost for items in the collection. The average cost per digital item fell from $19.64 in 2003 to $0.46 by 2019, while the overall blended average cost per item (physical and digital) fell from $1.31 to $081.
Indeed, insofar as public libraries face growing financial challenges, those challenges are not coming from the cost of material in their collections; it is coming from higher operating and administrative costs.
The average annual operating cost per library grew by more than 17% from 2014 to 2019, to $765,715.23. Most of that increase came from the administrative side, primarily staff.
As a result of those increased operating and administrative costs, libraries are spending a smaller percentage of their overall budget than ever on items for the collection, just 10.82%.
If state legislators genuinely want to help public libraries, they would get more bang for the buck by increasing funding for operating and administrative costs, not by trying to rewrite federal copyright law for e-books.