The Copyright Office Responds

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As noted by Andrew Albanese in “Copyright Office Weighs in on Maryland Library E-book Law,” the Office has responded to Sen. Tillis’ request to review the Maryland Law.

The decision is that federal copyright law “probably” would preempt the Maryland law, but opinion is notable for being tentative and never concluding anything definitively.

The matter is complicated and the article should be read. It is worth nothing, however, that an legitimate argument exists for the other side. It should also be consulted. https://www.publishersweekly.com/binary-data/ARTICLE_ATTACHMENT/file/000/004/4769-1.pdf RF thanks Jonathan Band for making cogent points.

We offer a few thoughts:

If Sen. Tillis and the AAP were hoping for a “slam dunk,” they have to be disappointed. This is no slam dunk. The footnote to the opinion is particularly telling: “It is worth noting that both Orson and Wilkinson discussed forced commercial exploitations of copyrighted works; the state legislation at issue seeks to require licensing of works to libraries, which, while arguably a commercial transaction, ultimately serves a non-commercial goal of furthering the traditional mission of public libraries to provide free access to materials for their communities. It is unclear whether this would be a significant factor for a court considering the question of federal conflict preemption. Precisely! We argue that the state has an overwhelming interest in protecting its residents’ ability to see content in libraries for a non-commercial purpose. Libraries’ mission certainly should be a significant factor.

The need for a review of federal copyright law as it applies to library licensing of materials is clear. Perlmutter says “One of the objectives of the Copyright Act is to promote the dissemination of creative works, which the Act does by, among other things, creating “a balance between the artist’s right to control the work during the term of the copyright protection and the public’s need for access to creative works.” The AAP can claim all it wants about the “healthy, robust, and ever-evolving noncommercial market channel” of the library ebook market, but the MLA statement on reasonable terms clearly establishes how libraries in many cases pay far more for digital than for analog, hindering our ability to meet demand at a time when digital has never been more needed. Any cost analysis by any front-line librarian will show the same, as do any number of published studies. We again thank the publishers who do offer a print-equivalent cost in overall license terms, but the AAP calling fair the terms that many publishers foist on libraries, knowing we have no choice if we wish to meet demand, is ludicrous.

So about that AAP statement: “ Accordingly, AAP remains deeply troubled by ongoing, coordinated lobbying efforts that seek to dictate and devalue the distribution and pricing of books in what is clearly a healthy, robust, and ever-evolving noncommercial market channel. Such efforts are antithetical to our democracy, which depends upon a vibrant private sector publishing industry that is incentivized to create and distribute original works of authorship to the public..” This overheated nonsense is risible. The MLA and the state of Maryland legislators—every single one of whom voted for the law—are not lobbyists. You have the unmitigated crust to speak of democracy? Does democracy exist only for those with a credit card?

Bottom line:

  • It doesn't matter what the AAP, Sen. Tillis, or even the Copyright Office say. The Maryland law stands. Any one who wants to challenge it will have to go to court. Who knows, the outcome might be to validate our law or eventually lead to a reassessment of copyright. In any case, it won’t be good “optics” to sue a state to do down library readers.

  • The Copyright Office all but undermines its own stand in its footnote. The whole point for us is that we are non-commercial and not doing anything that should be preempted. Library use SHOULD matter.

  • We have legal points on our side too--only litigation would solve the question

  • This whole effort is aimed at chilling passage of the New York law and to stop efforts in other states. New York's has been passed and must be presented to the governor before January. We'll have to see if a new governor wants to veto a law with 100% "yes" votes. RF encourages other states to act. You have a financial as well as a moral stake: public funds provide library digital content.

  • Sen. Tillis (R, NC), we respectfully invite you to speak with librarians from any number of excellent NC systems and to the library readers of your state. You might well find they agree with the Maryland law more than with a D.C. lobbying outfit.