Maryland Ebooks Lawsuit Over and A Save-the-Date

As Jim Milliot reports in an article in Publishers Weekly, the Association of American Publishers (AAP) has filed that it will not seek costs and legal fees from Maryland in the lawsuit over the state’s library ebook bill.

Milliot notes that the AAP says “its decision was limited to this particular case, and that it ‘expressly reserves all rights, claims, and remedies that may be applicable with respect to any future legislation or other matter’.”

Thus ends—for now— Maryland’s effort to get library ebook costs that approximate the generally far lesser costs that libraries pay for print. It has been a valuable learning experience for those of us in libraries seeking fair terms. The law’s language—borrowed from bills previously brought forward in New York and requiring the publishers to offer fair terms—was based on a a still earlier effort to put forward legislation at the federal level. At the federal level, this language would not have been subject to a preemption challenge. A different ruling was possible in the Maryland case, but this ruling, which pretty much states that publishers/authors may charge whatever they like and license (or not) to whomever they like, is the one we have to live with. Clearly a different tactic will have to be used to used. Massachusetts—the only state with a bill still pending—has changed to make the licensing a matter of fair consumer law, with libraries not able to engage in unfair licenses. Maryland advocates are working on a draft based on state contract law. Libraries getting state funds cannot enter into unfair contracts, with the term “fair” defined in the potential bill. Neither bill can be challenged on the basis of federal copyright laws preempting them. States are perfectly justified in regulating how state funds are spent. The publishers are not compelled to change their prices. They will, however, have to negotiate fair terms if they wish to do business with libraries in these states. We shall have to see if these efforts can become law and what effect they will have if they do. It is important for libraries that we continue the effort. The ReadersFirst Working Group is gathering evidence that Big 5 library prices are in many cases going up. Our ability to acquire and sustain rich digital collections, already challenged, is becoming less and less.

It would be churlish not to offer the AAP congratulations. As my colleague Carmi Parker has pointed out at length in a position paper, the AAP has made some false claims in their public statements about the Maryland law. They are doing their job, however, and have prevailed in this Maryland case. It is gracious of them to let the matter rest. I wish Maryland had won and the publishers had negotiated (we never intended to apply the law). But we in libraries are not sore losers. For now, I’m glad the matter is over and we can concentrate on future efforts.

Speaking of library ebook laws, plan on attending a DPLA/COSLA/ReadersFirst webinar on the topic on September 27, 4 pm Eastern Time. We’ll have a great panel:

• Kyle Courtney, Copyright Advisor, Harvard University and Co-founder and Board Chair, Library Futures

• Alan Inouye, Senior Director, Public Policy and Government Relations, ALA

• Brianna McNamee, Director of Government Relations and Advocacy, New York Library Association

• Irene Padilla, Maryland State Librarian

Register here.