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State eBook Licensing Bills Threaten Creators and Copyright

Beginning in 2021 and continuing into 2022, eBook licensing bills were (and are) being considered by numerous states, including Rhode Island (H6246), New York (A5837B) Maryland (HB518), Missouri (HB2210), Illinois (SB3167), Tennessee (HB1996), and Connecticut (SB131).

These bills would force publishers to license their eBooks to libraries on terms that are determined individually by each state (not by the publishers). The eBook licensing bills are of great concern not only to publishers but to the entire copyright and creative industry since copyright law explicitly provides copyright owners with the right to determine whether to license a work and under what terms. Further, they clearly represent a carefully orchestrated lobbying campaign designed not to succeed at the state level, but to serve as a pretext for undermining copyright at the federal level.

To the extent there are exceptions to these rights, those exceptions are set forth in the Copyright Act. The Copyright Act is federal law that expressly prohibits states from legislating their own copyright-related provisions. As such, the state bills are not only inconsistent with federal copyright law and would be preempted by it, but they would also lead to a patchwork of varying rules across the country that would not be favorable to copyright owners, library users, or the public.

Although the New York legislature passed its eBook licensing bill, it was quickly and decisively rejected by Governor Hochul, who vetoed the bill on December 29, 2021, due to it being preempted by federal copyright law.

To date, Maryland is the only state that passed its bill into law. The bill was passed on May 30, 2021, and went into effect on January 1, 2022. In response, the Association of American Publishers (AAP) filed suit against the State of Maryland and moved for a preliminary injunction in December 2021.

On February 16, the U.S. District Court for the District of Maryland ruled on the case, granting the preliminary injunction, which suspended the eBook licensing law at the center of the AAP v. Brian Frosh case. The court found that AAP had “clearly satisfied” all four factors of the preliminary injunction test. In its ruling, the court explicitly recognized that a “forced transaction” between publishers and libraries would effectively strip publishers of their exclusive right under the Copyright Act to decide whether, when, and to whom to distribute their copyrighted works. The court ruling also made clear that forcing publishers to offer licenses for electronic literary products on terms that would enable public libraries to provide library users with access to the electronic literary product will not necessarily increase access to those products for library users over time, and that it is only through the protection of copyright law that books and other creative works may be generated and distributed at all.

The state eBook licensing bills are clearly a solution in search of a problem as the marketplace is already providing libraries with robust access to eBooks. In fact, according to a recent post by Overdrive, the leading digital reading platform for libraries and schools, during 2021 “libraries achieved all-time records for circulation, while lowering the average cost-per-title borrowed,” with more than 120 libraries reaching one million digital checkouts.

Explore the links below to learn why the state eBook licensing bills are of great concern to creators and publishers across the country, and what’s being done by copyright advocates to help ensure they are not enacted. Please also check back often, as we will update this page as news develops.

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