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Book Publishers Sue Maryland Over Law That Would Require Them To Offer 'Reasonable' Prices On Ebooks To Libraries [techdirt.com]:

Book Publishers Sue Maryland Over Law That Would Require Them To Offer 'Reasonable' Prices On Ebooks To Libraries

Copyright [techdirt.com]

from the reasonable-is-not-allowed dept

For years now, we've been highlighting how book publishers are at war with libraries, and see ebooks and ebook pricing as a key lever in that war. With regular books, a library can just buy the book and lend it out and do what they want with it. But not ebooks. Because of a broken copyright law, publishers retain excess control over ebooks, and they lord that over libraries, arbitrarily raising prices [techdirt.com] to ridiculous levels, limiting how many times they can lend it out [techdirt.com] before they have to "repurchase" the ebook, and generally making it as difficult as possible [techdirt.com] for libraries to actually be able to offer ebooks.

This is because of a broken copyright system that gives publishers way more control over ebooks than traditional hardcopy books. And book publishers have spent the past decade abusing that power. In an ideal world, Congress would get its act together and fix copyright law and properly add first sale rights for digital goods like ebooks. But, without that, some states are trying to step in and fix things, including Maryland, which earlier this year passed a law [maryland.gov] that would require publishers to sell ebooks to libraries at "reasonable" rates [publishersweekly.com].

With the law set to go into effect next year, helping more Maryland residents get access to ebooks in the midst of a still ongoing pandemic, the book publishers have continued their Grinch-like ways, and sued to block the law [publishers.org]. The complaint [documentcloud.org] says that this is an attempt by state law to route around federal copyright law, and since the 1976 Copyright Act, state copyright laws are pre-empted by federal law.

The complaint spews a lot of nonsense and propaganda about "the importance of copyright" to "the ultimate benefit of the public" which is laughable -- especially coming from book publishers who have gone out of their way to use copyright to fuck over the public [techdirt.com]. But, as ridiculous as it is from a societal level, the publisher's reading of the 1976 Act might convince a court. It is true that the 1976 act says that states can't pre-empt federal copyright law, so the publisher's argument is that this law is a route around that.

I assume that Maryland will argue, forcefully, that this is not a copyright law or an attempt to route around federal copyright law, but rather something else entirely. Indeed, as some have noticed, the Maryland law is deliberately "modest." [infotoday.com] It only says that if a publisher is already offering ebooks, it also has to make sure it will sell to libraries at a reasonable price. It's not forcing publishers to offer ebooks at all -- just make sure that the publishers can't treat consumers and libraries differently. And, as the libraries argued in the runup to this bill passing [publishersweekly.com], there is historical evidence that a law that only impacts contracting does not impede on copyright:

First, the bills are not preempted by federal copyright law. The AAP cites section 301 of the U.S. Copyright Act as authority for its argument that federal copyright law preempts the bills. In fact, section 301 was adopted by Congress in 1976 to preempt state copyright laws—laws that created rights that are “equivalent to any of the exclusive rights within the general scope of copyright.” Courts around the country have repeatedly held that section 301 does not preempt state laws relating to contracts because contract rights are not “equivalent” to the exclusive rights of copyright. Central to those courts’ analysis is that the existence of a contract constituted an “extra element” not present in copyright law. Because the bills regulate license terms, they are completely outside the scope of section 301. It should be noted that 21 years ago, Maryland adopted the Uniform Computer Information Transactions Act (“UCITA”), which regulates licenses for copyrighted works such as software and databases. Publishers strongly supported the adoption of UCITA, and did not argue that its regulation of licenses was preempted by section 301 of the Copyright Act.

Realistically speaking, this is just the book publishers, once again, attacking libraries and the public, and using copyright as their weapon to do so. It's shameful behavior, but the underlying problem is our copyright laws, and the belief instilled in copyright abusers like the publishers, that it lets them control everything, even after they've sold something. The answer is to fix our copyright laws wholesale. If the copyright laws weren't so broken in the first place, we wouldn't need states like Maryland stepping in to try to fix situations like how publishers rip off libraries (and the public with it).

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Filed Under: contracts [techdirt.com], copyright [techdirt.com], ebooks [techdirt.com], libraries [techdirt.com], maryland [techdirt.com], pre-emption [techdirt.com]
Companies: aap [techdirt.com]

Original Submission