Sen. Tillis, The Copyright Office, and Continued Library Advocacy

As noted by Andrew Albanese of Publishers Weekly in “Senator Wants Copyright Office to Weigh in on Maryland Library E-book Law,” Sen. Thom Tillis (R, NC) of the U.S. Senate’s Judiciary Committee has sent a letter to the U.S. Copyright Office asking for a review of the Maryland law scheduled to take effect on 1/1/22.

Albanese’s article is well-worth a read but to summarize: Tillis’ letter echoes concerns previously express by the AAP [so closely that RF opines it cannot be a coincidence] that the Maryland law is unconstitutional, that the state is encroaching on federal domain, that the Copyright Office should "clarify if federal preemption applies," but that letters like this are not uncommon, unlikely to affect the Maryland law even if the Copyright Office issues a negative statement, and that the letter is an effort to chill activities in other states, including New York where a bill has been passed in the legislature but is awaiting signature.

RF agrees with the contention of Jonathan Band in the article that the Tillis letter and AAP claims are inaccurate. The letter says among other things that the state’s “compulsory license” removes rights from the copyright holder. Not so. The law respects the license offered for works by the publishers and does not dictate terms. We agree that this is likely an attempt to chill other state legislation. Our Working Group has sent the following letter to librarians in 8 states who have expressed some level of interest in legislation. In some cases, bills are awaiting introduction, while in others the idea is just germinating. We encourage stakeholders in other states to consider moving forward. A patchwork of legislation may bring the matter into federal legislation. In the meantime, library stakeholders should advocate for “print equivalent” digital licensing terms. We salute publishers who already offer such terms and ask, without them how will we ever be able to offer in digital the richness and deep collections we can offer in print?

Dear Colleagues:

We are emailing because you have expressed interest in advocacy for an eBook law in your state like Maryland’s, enabling libraries to license any eBooks or eAudiobooks made available to individuals at reasonable cost. We learned last week that Sen. Thom Tillis, ranking member on the Senate Intellectual Property subcommittee, believes the Maryland law to be unconstitutional and has requested the Copyright Office to publish an opinion intended overtly to discourage you from seeking legislative solutions to eBook access in your state.

Sen. Tillis’ letter makes arguments similar to the talking points used by the lobbying organization Association of American Publishers (AAP), so we believe that’s where the interest originates. Rather than challenge the legislation directly in court, AAP appears to be trying to enlist the Copyright Office to chill new state efforts to protect access to eBooks by raising the raise the specter of unconstitutionality. The Maryland and New York legislatures rejected the assertion that the ebook legislation is preempted by the U.S. Copyright Act and passed the legislation; it will be law in Maryland on 1/1/22. If you are interested in details, we can gather that information for you.

Ultimately, we do hope to achieve a federal-level solution to protect the rights copyright law extends to libraries, allowing us to obtain digital materials at reasonable prices without constraint and create archival copies, etc. But we believe that the path to a national solution begins with precedents at the state level: demonstrating need and modeling solutions. In brief, we hope this information will galvanize your effort to pass a law in your state that protects access to eBooks.

Please share this with letter with any interested parties in your state.