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'A Real Threat'

Tillis Says State E-Book Laws Put Writing Profession at Risk

The writing profession is under threat from state legislators seeking to strengthen public libraries’ hand in negotiations with e-book publishers like Amazon, Sen. Thom Tillis, R-N.C., told us Wednesday. Library advocates said in interviews that e-book laws in Maryland and New York are an important step in ensuring libraries maintain their role in society.

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The Maryland law, which took effect this month, and a similar bill in New York would require e-book publishers to license items to libraries on “reasonable” terms set by states.

New York Gov. Kathy Hochul (D) vetoed her state’s e-book bill, which passed the House unanimously and the Senate with one vote against. Hochul cited the author’s exclusive right to determine with whom to share their work and “on what terms. Because the provisions of this bill are preempted by federal copyright law, I cannot support this bill.” The Association of American Publishers sued in December to block Maryland's law, saying state law is preempted by the Copyright Act. Maryland Attorney General Brian Frosh (D) has until Jan. 14 to respond to AAP’s motion for a preliminary injunction in docket 1:21-cv-03133 before the U.S. District Court in Baltimore. His office declined to comment.

What incentive is there going to be for any creator, who could actually go out and find some other way to make a living, to put their future earning at risk?” said Tillis, the top Republican on the Senate Intellectual Property Subcommittee. “We’re talking about a real threat to the creative community and people actually pursuing this profession. There’s no way to make the numbers work. At the end of the day, they’ve got to pay for their groceries.”

Tillis wrote Copyright Office Director Shira Perlmutter in May asking the CO to assess the Maryland law. Perlmutter responded in August, saying “under current precedent, the state laws at issue are likely to be found preempted.” The CO declined further comment Wednesday. The office of Senate IP Subcommittee Chairman Patrick Leahy, D-Vt., declined comment.

There's a “significant problem” in terms of pricing for libraries buying e-book licenses, said Alan Inouye, American Library Association senior director-public policy and government relations. Inouye said libraries pay about $55 for every two-year digital license. Libraries often receive distributor discounts for print books and can sometimes pay as much as 40% less than the public for hard copies, though it varies for each library, he said. Some publishers, however, refuse to sell to libraries at any price, including Amazon, which started offering some of its published titles for the first time in 2021 “as these laws are starting to bubble up,” he said. Because there’s no guarantee of access, library’s role in society is at stake, he said: “It doesn’t make sense. That’s why we need some kind of way to balance rights as compared to the print era.”

It would be a cruel irony if in the digital world we end up with less access to knowledge and information as American readers than we had in the analog era,” said Digital Public Library of America Executive Director John Bracken. “The momentum that you’re seeing through state legislation are initiatives” to “make sure librarians and publishers are in contact and that licenses for e-books are being offered to libraries under reasonable terms.”

It’s giving libraries a tool in negotiations” so publishers can’t charge “10 times the cost” of what a member of the public pays for an e-book, said Re:Create Executive Director Joshua Lamel. “The state should absolutely step in and say, ‘Let’s try to even the field with these very uneven contract negotiations.”

Publishers are always willing to negotiate with libraries, which are partners with shared interests in books and reader access, said AAP General Counsel Terry Hart: There’s a long history of publishers working with libraries to ensure licensing terms are fair and reasonable. And a federal framework is important for publishers negotiating across the U.S. and abroad with international trading partners, he said.

Congress established the best way to create a “robust, creative sector” through the Copyright Act, and states are ignoring the intent of Congress, said Hart. State laws can interfere with marketplace-based decisions that are the responsibility of copyright owners to determine, he added: “They must consider a lot of things when they’re putting their books out there -- timing, format, marketing channels -- all these decisions to make sure they’re able to recoup the investments they put into it to make sure authors are compensated fairly.”