As first reported (at least by an objective source) by Andrew Albanese with PW, Governor Hochul has vetoed S2890B that would have publishers “offer licenses for electronic books to libraries under reasonable terms.”
[Updated]: The American Library Association has released a statement that expresses well the feelings of most librarians, though no doubt those in New York feel a special disappointment.
ALA President Patricia “Patty” Wong issued the following statement: "Governor Hochul’s decision to veto S2890B / A5837B is unfortunate and disappointing. Protecting New Yorkers’ access to digital books through the library is critical to ensuring equitable access to information for all. We are grateful to the New York Library Association and New York library workers, advocates, and partners in the legislature who helped develop and champion this bill, and we will continue to work toward a solution that puts equitable access first."
One is not surprised that the Association of American Publishers ()AAP) and Authors Gild would issue quick statements of support for the veto. That is how these big Washington and New York based lobbyists bring home the weekly stipend. One might wish they were less mendacious about the bill. Here are comments from the AAP’s Pallante and an AAP statement:
“The bill that she vetoed was rushed through the state legislature in response to a coordinated, misinformation campaign, supported by Big Tech interests and lobbying groups that are notorious for wanting to weaken copyright protections for their own gain.” [Palante]
Shockingly, the bill would have forced authors, publishers, and other copyright owners to grant involuntary, digital licenses to New York public libraries under state-imposed terms, in full conflict with the U.S. Copyright Act and the comprehensive purpose that it serves. The bill attached penalties for non-compliance, effectively chilling copyright owners from pursuing the full benefit of their copyright interests and literary properties within the state.
These echo a claim from AAP made about the Maryland bill earlier this year:
We reiterate that the library market for e-books is robust and appropriate and we question the strategy of library lobbyists, who are sophisticated actors in Washington, in pushing unconstitutional legislation and a storyline that is at odds with both the operation of the law and market facts.
Big Tech? Lobbying Groups? Let’s ignore the tone-deafness of big lobbyists complaining that other lobbyists are at work, or else we might spew coffee on our keyboards in laughter. I can’t speak as authoritatively for New York as for Maryland, but for Maryland and (I will assert having spoken with some librarians New York), this is beyond nonsense. No need to mince words when these lobbyists aren’t. These lobbyists, funded by large publishers who are in any case owned by megacorporations as powerful as any so-called Big Tech, are LYING. No Big Tech supported these bills. If you think so, name them. No lobbyist from Washington or New York or anywhere created and spearheaded these efforts. If you think so, name them. This a BIG LYING LIE from LYING LIARS. Perhaps they think saying it enough will make some people believe it. These bills were brought forward by librarians for the good of library readers. They were brought forward for the good of taxpayers, who pay far more for digital access through libraries than for print, simply because the publishers set prices at whatever they want, even at amounts blatantly unfair when compared to print. Library digital prices don't operate under copyright. They operate under license. This is a consumer issue and an issue of fairness. The public deserves access to content through libraries, under copyright, and at reasonable prices. And as long as were talking about Big Tech, let's extend the point to ask if allowing the public good to remain the hands of these corporate giants is a good idea.
I will meet anyone from the AAP or Authors Guild, anytime, anywhere, with a list of prices libraries pay the Big 5 for digital and what we pay for print. Hell, let’s televise it. The facts will speak for themselves. No librarian has anything to hide here.
“Involuntary licenses under state imposed terms.” Nope. Unless they wished to deliberately withhold from the library market—something which is very much to be decided as legal under copyright—in which cased the state would have compelling reason to act, the publishers would never have been forced to enter any license by this law. The law provides a framework for publisher and libraries to talk. If the publishers simply claimed to be reasonable, nothing would have happened. Well, maybe with the law in place, the public might start looking and supporting reasonable prices for libraries. And that of course is what is really happening here: well-paid lobbyists are working to ensure that price gouging and profit will go on. It’s what they do. Just as big corporations that own the big publishers are there to make profits. Its what they do. No sense being disappointed in them.
Which is not to say we shouldn’t fight them.
Governor Hochul’s veto is harder to take. Here’s her explanation:
While the goal of this bill is laudable, unfortunately, copyright protection provides the author of the work with the exclusive right to their works. As such the law would allow the author, and only the author, to determine to whom they wish 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. These bills are disapproved.
Three points:
Every legislator except one, speaking on behalf of the libraries of which New York is justly proud, pass a bill and you won’t stand with them? The publishers charge inflated prices on digital and rather than work for libraries to offer more content and expand digital offerings in a time of pandemic currently hitting your state hard, you don’t at least challenge? Library readers have been let down.
There is a legal challenge to the AAP and its various claims. What you say about copyright protection is being decided. Yet you parrot those claims, selling out other states too. Of course the AAP and others will claim that your veto validates their point. Could you have found a way to veto, if you felt you had to, without completely caving and effectively launching a salvo at other states.
“ . . .the law would allow the author, and only the author, to determine to whom they wish to share their work and on what terms.” WRONG! Copyright doesn’t do that. And in any case, we’re talking about licenses and consumer law. These things can be adjusted without infringing on an author’s right to her work.
The AAP no doubt hopes by challenging in Maryland to stop the momentum in other states. It worked in New York—for now. Let’s see what the legislators do in upcoming sessions. Work continues in other states, such as Massachusetts. The Maryland Attorney General is readying a defense of the Maryland bill. If we do not prevail, it will at least highlight the need for rebalancing copyright act to address the wrench that has tilted it to publishers in digital.
