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

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 to ridiculous levels, limiting how many times they can lend it out before they have to “repurchase” the ebook, and generally making it as difficult as possible 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 that would require publishers to sell ebooks to libraries at “reasonable” rates.

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. The complaint 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. 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.” 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, 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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Comments on “Book Publishers Sue Maryland Over Law That Would Require Them To Offer 'Reasonable' Prices On Ebooks To Libraries”

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Rico R. (profile) says:

Publishers: If it harms our bottom line, it's piracy!

I cannot fathom in what world this could be construed as a state trying to run around federal copyright law. Copyright says, more or less, it’s illegal to copy a work protected by copyright. Other rights and exemptions aside, copyright says nothing about how much a copyrighted work has to sell for. This state law simply says that they can’t force libraries to pay more than a fair and reasonable rate just to get the ability to lend out a digital copy of a work.

But heaven forbid a publisher can’t maintain absolute monopolistic control over their market. To me, that sounds more and more like copyright misuse. Copyright might give owners exclusive rights, but copyright doesn’t give the copyright holder the right to control the price for the work. I know, it’s sort of implied in the distribution right, but states can regulate how high a particular good can sell for in the state, and that inherently has nothing to do with copyright. If this law is struck down by the courts on the grounds that US copyright law pre-empts state copyright laws (which this most certainly not), will people finally realize that copyright law has been distorted to the point that it’s no longer defensible?

This comment has been deemed insightful by the community.
That One Guy (profile) says:

They have to frame it as a copyright issue because if they were honest and admitted that what they’re arguing against is a customer protection law meant to prevent libraries and the public that they serve from getting ripped off by publishers it would be really hard for them to spin their actions here as anything other than ‘Because we can’-levels of pure greed.

GEMont says:

In Defense of Pirates

I made a copy of this post a long time ago simply because it was a complete argument without holes, as to why Copyright Laws need to be repaired. I’m not even sure where I read it, although right here on TD is a good guess.

If it turns out that re-posting this comment somehow infringes on somebody’s copyright, please forgive and delete.

==================================

Tice with a J,
May 21st, 2014 @ 9:23pm

In defense of pirates

There is an idea that, in my opinion, is very important in any discussion of copyright/patent/IP. The idea is this: "Content creators deserve to get paid for each and every use of their content". Whether that content is a song, a program, a design, or any other kind of information, the idea is that the maker of that information has a right to be rewarded for every use of that information.

This idea appeals to our notions of fairness, especially when you consider an analogous physical situation: the skilled craftsman, whom I will call "maker" because I’m a Doctorow fanboy. A very good maker has the power to make something that no one else can make, like a Stradivarius violin, and there’s no way to get a violin like that without either buying it from Stradivarius or buying it from someone else who bought one… or stealing it, of course, but we have ways of preventing theft. The point is that the maker has total control of how many copies there are of what they sell, and whenever you see a copy in the wild, you can safely assume that the maker got paid for it.

Moving back to the realm of information, we still have skilled makers, making patterns of information that no one else could have made. We value what they make, and we want them to be rewarded, just as the physical makers are rewarded… and the information makers want to get paid, so our interests line up. So far, so good.

But now we run into trouble: information, unlike physical goods, is very easy to copy. It may take a genius to write a good book, but any common scribe can copy it. And then there are the copy machines. In fact, go take a look at all the books you own, and tell me: how many of them are copies? In my case, the answer is: all of them. I don’t own any original manuscripts (unless you count my own writings, but I don’t consider my jumbled piles of scribblings to be books). If I want to read something by, say, Edgar Allen Poe, I don’t have to ask Poe to write me a fresh copy, nor do I have to deprive anyone else of their copy. I just need someone who’ll let me make a copy of their copy. And whenever I see a copy of Poe’s work in the wild, I can usually assume that Poe wasn’t paid for it, since the vast majority of existing copies (including the one on my hard drive) were made long after his death!

Now, this offends our notions of fairness! "How can someone get something for free? Someone had to have lost something!", we think. And so we call copying "theft of intellectual property" or "piracy", because it feels like something got stolen. But this is wrong. Nothing has been stolen. No one’s purloined a violin. Neither the maker nor the customers have lost anything when one customer makes their own copies and gives them away.

Now this is the point in the discussion where pro-copyright folks bring up sunk costs. It takes time, talent, and energy to make good content, just as it does to make a good violin. Surely the content deserves some protection, yes? But wait! Somebody moved the goalposts. "Sunk costs" didn’t even come up when we were discussing the Stradivarius. Why bring them up now?

But more generally, sunk costs are irrelevant, for 2 reasons:

  1. There is no direct relation between sunk costs and quality. There’s a lot of literature on this subject, but here’s my favorite piece of evidence: going by official records, the most expensive film in history was Spider-Man 3. Whether you count inflation or not, that’s the top. Worth the investment? I didn’t think so.
  2. There is no end to the amount of monopoly that we can justify by appealing to fixed costs. We could even justify slavery (The landowners put a lot of time and money into raising those negroes, so don’t they have a natural right to claim the product of the negroes’ labor?). Unless we’re trying to justify the total state, we need to do better than to appeal to costs.

In fact, let me harp on that second point some more. Sunk costs were the justification for DRM. And what is DRM? It is the loss of control of your own computer. It invades your privacy and takes over your property. Snowden’s leaks are only the latest reminder of how dangerous this sort of thing is. Crooks and elites are all too eager to gain control of our lives, and we shouldn’t be giving them any opportunity to do so. That’s why DRM is inherently bad (Why, Mozilla? Why?). I won’t let anyone try to justify it with a sob story of how much it costs to make good cinema.

Now then, if DRM can’t be justified on the basis of sunk costs, what can be justified? For the effects of copyright are in need of justification.

Remember the central idea, that content creators deserve to get paid for each and every use of their content (or at least, for every copy). The practical effect of this is to deny customers their freedom to communicate. They must either report to the creator for every copy they make and submit to a fine, or they must refrain from copying at all. This is a broad prior restraint on speech and press. Is it justified?

It gets worse. All manner of communication goes on in private, and all of it is potentially full of illicit copies. If we want to pay the creators for every copy, we’ll have to either revoke the right to privacy in order to track down the copies, or we’ll have to pass a blanket tax on private communication (in effect, assume that all people are guilty and punish them in advance). The current U.S. legal system has both the loss of privacy and the punitive tax. Are either of these justified?

In summary, the idea of getting paid for every copy is nice, but there’s no way to implement it without compromising or abandoning other nice ideas, such as free speech, privacy, presumption of innocence, and secure ownership of personal property. That’s a lot to give up, and for very questionable benefits, too.

That’s why I have no qualms with "piracy", and I refuse to condemn the file-sharers. Not because they’re heroic or anything like that, but just because they’re doing nothing wrong. Copying, sharing, and ruining people’s business plans are natural human activities, and no one has any business trying to outlaw them.

P.S. Given the opportunity, I would download a car. Wouldn’t you?

Anonymous Coward says:

Re: In Defense of Pirates

Thanks for sharing this. I support piracy if done as civil disobedience to the copyright regime that I feel is unjust, over-oppressive, and amoral, for similar reasons this post helps to explain. I believe the copyright regime does not serve the public but a certain minority’s greed at so much expense for the public for some allegedly benefits not backed by evidence to the public that supposed to make all this worthwhile.
I agree with the poster that piracy is not wrong as I reject the copyright cult self-serving morality "copying is theft" and so on. I reject that breaking the law per se is amoral because clearly in the case of the copyright laws, the law is just the rule of the elites and the corrupt and have nothing to do with moral values. I reject this very entitled and very self-centered minority which the copyright laws are designed to serve. This entitlement culture of the content creators "I deserve to be paid for every single copy or use of my content and I dont care how much that cost others’ free speech, privacy, secure ownership of actual property, access to culture, and so" is something where anyone with some decency should not be putting up with because its fucking up society so much.

Anonymous Coward says:

Re: Re:

Yes, that would be a huge improvement. Much freeing up of culture that have been robbed from the public by the very entitled and very self-centered minority and their government cronies. Or another improvement is making the content creators register for copyright and paying an ever-increasing rent to the public on their content for the length of time. You want your content locked up, aka "protected" for 10 years, sure.. you pay a little. you want your content locked up for lifetime plus 70 or 100 years, you pay A LOT more. Disney, yes I’m looking at you, you want your content locked up for 5 or 6 generations of children, if your content is so worthwhile of taking that much from the public, then surely you will be willing of paying an exorbitant price for it, after all, you have so exorbitantly charged the public for it for years so surely you can afford it.

Another good improvement is ending this dumb permission culture thing by making copyrights not automatic on every little content created. You think your content worthwhile of being ‘protected,’ then surely its worthwhile the trouble of registering for copyright for your content, and paying an annual maintenance fee for it. If the bloodsuckers aka the corporations must have their blood aka their rent from the public on their little copyright monopolies , they pay rent to the public every year they want to seek rent from the public. fair is fair.

Of course, this is all assuming that digital copyright is necessary which I am not convinced of because this seems to be based on dogma and faith of the copyright cult and their worshippers, not on empirical evidence. I believe that art created for art’s sake generally is better than art created for money’s sake because former comes from passion to create some beauty and good, and I know passion for money is the root of evil of this society. The copyright cult and their regime is more interested in cultivating this passion for money rather than this passion for creating beauty and good, and that’s why they are so evil, and their evilness is spreading to the society, making it more evil. Culture has thrived for millennium before copyright and I dont see why not culture cannot thrive post-copyrights.

I think actually more jobs would be created long term than lost by ending copyrights because so much wealth would be freed up than wealth lost because so much wealth is lost though inefficiency though the rent-seeking copyright industry’ s monopolies. Monopolies inherently create inefficiency in the market and that is loss of opportunity. Wealth is generated though efficiency. Efficiency can be generated by axing the copyright industry.The public is paying too much for their art and science and if copyrights are ended, that mean more money in pockets of the public and all that extra wealth has go somewhere else to and that means jobs, just not from the parasitic copyright industry. That wealth could be used to create some beautiful and good or at least something more use instead of lawyers and business elites and they are not beautiful and good however they may think they are, and we have already enough of them.
Also innovation and art would be promoted by ending copyrights because innovation and art dont come from nothing.. they come from some else innovation and art and if we had much more access to culture then much more would be built on, innovated on, created on based on this greater access to culture. This copyright regime we have now lock culture behind paywalls for very long time and is anti-innovation and anti-art as it actively hinder access to culture by its power grab and pure greed. Access is important and this copyright regime is not about that and that is another reason it has to go if we truly care about promoting art and knowledge. We dont need the copyright industry and their stupid disgusting greed, and I’m sure we ‘ll manage without them.

Scary Devil Monastery (profile) says:

Re: Re:

"I think today’s copyright laws would actually be very reasonable if copyright only lasted 10 years."

Everyone keeps missing that it used to be they only lasted seven years. The thing is that when you write a fundamentally flawed piece of legislation enormously benefiting a gatekeeper industry you’ve more or less guaranteed that every presidential or congressional candidate to emerge ever after will be owing quite large sums of campaign funding to the lobby of that gatekeeper industry.

In short, copyright at all just means getting on a steep greased slope in a high-gravity environment. Where people behind you are trying to push you down it all the time.

Thus you can’t fix copyright because every attempt to make it reasonable will be undone in very short order.

Anonymous Coward says:

Re: Re: Re:

Depressing, is it? That’s the one of the reasons why I am advocating abolishing of copyright no matter how radical it sounds to other people as way to solve this gordian knot that the copyright is and end this high-gravity steep greased slope. People would disagree with me I’m sure as to them its akin to throwing the baby with bathwater.. but to me it’s an ugly fat frequently-shitting monster baby. I’m not convinced that digital copyright have much value to society.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"That’s the one of the reasons why I am advocating abolishing of copyright no matter how radical it sounds to other people…"

You won’t hear any arguments from me. In my book there’s exactly one item of "intellectual property" which isn’t an actively harmful Red Flag Act. Trademark.

Trademark is certainly abusable – and has been, a lot. Unlike the right to determine who can make copies, though, Trademark is about who gets to exploit an identity which is VERY different and is naturally understood and respected by most people.

Abolish copyright. Make an author’s work part of their trademark instead. What the author loses is the privilege of determining which copies are made – which they in reality never had in the first place – and what they gain is sole authority on who gets to use that part of their brand openly.

This rids a generation of an unfair stigma of unlawfulness over copying information while also providing the authors with control over what is actually important – the right to stand as sole author of a work and the right to cash in on anyone wanting to use said work for commercial or political reasons.

Also makes the laws surrounding it about 99% simpler.

Only casualties; Gatekeeper industries and an admittedly rather large lobby of lawyers specialized in IP rights.

LibrarianB says:

But greed is good

I’m one of the librarians who helped promote this bill. The AAP, lickspittle lackeys working to ensure that multinational conglomerates who own the publishers continue to treat our tax dollars as their private teat, completely misrepresent this law. Not that’s this is a surprise. Funny how we in libraries are forced to put up with unreasonable and expensive licenses and then, when patience is exhausted and content is withheld, get told that copyright precludes better licenses.

You LIE, AAP.

The terms are not "mandated by the state."

Libraries have ZERO control in digital content, in spite of your false claim of our "unprecedented control over basic copyright transaction."

That control isn’t even challenged under the law, the publishers would maintain full control. The law doesn’t mandate terms. We hoped to get better deals, but any publishers could simply say "we are reasonable" and our only recourse would be a lawsuit nobody wants.

Can you say "greed"?

I thought you could.

In libraries, we’ll continue to talk with the publishers. But if Maryland’s law goes down, it will be good reason at long last for federal action

Anonymous Coward says:

Re: But greed is good

Association of American Publishers, this is one of the copyright cultists’ propaganda piece.
https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/86547-aap-vows-to-protect-copyright-from-all-challengers.html

Would like to know what your take on this is.

LOL look at their Orwellian-like language. They are like how dare the "library-lobbists" (meaning you apparently) challenge their rights to extract maximum rent from libraries. what they mean by "protect copyright " sounds like protecting their profits or potential profits. By challengers they apparently mean like you or other librarians who would challenge their endeavors to extract maximum rent. "Bloating fair use doctrine"? Interesting phrase. Sounds like they think protecting and expanding fair use a threat to their profits and power. Calling the Maryland law "diverting copyright protection from Congress"? Interesting.

Who thinks this way but copyright cultists? That’s how their groupthink and doublespeak is like. How do one reason with these people whose thinking is so warped by greed?

LibrarianB says:

Re: Re: But greed is good

@ Anonymous Coward

I think the poke they took at ‘librarian lobbyists" was primarily meant to mean American Library Association, but I wear the insult proudly. I responded thusly at the time via ReadersFirst:

The article mentions AAP opposition to the Maryland law: “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.” I call BS. Not being an attorney, I won’t comment on the legal aspects, though one can find the AAP statements refuted here. But market facts? That publishers can and often do charge on average many times higher for digital than for print is certainly a market fact. Libraries can pay, indeed must pay if we want access, but that doesn’t make the prices fair. And “sophisticated actors in Washington”—that’s especially rich coming from a Washington lobbying firm. This assertion is untrue. The MLA statement was written and edited by Maryland librarians. It was approved by the MLA. It is a librarian initiative. We’re not sophisticated actors in Washington. We’re librarians, and proud of it. Maybe its easier to attack make-believe Washington actors, but AAP, address your concerns where they belong. Frankly, though, [none of] the AAP’s statements have [any] more validity than this utter falsehood.

Scary Devil Monastery (profile) says:

Re: Re:

"I am frequently frustrated with getting ebooks, which I prefer. Popular ebooks often have a LONG waiting list! "

Well, just don the tricorn, hoist the jolly roger, and set sail for The Bay then.

There is no honest reason why digital books should have become more expensive and cumbersome for libraries to supply than physical dead-tree editions. Hence if artificial scarcity is what keeps you from a work then just find a kind neighborhood seeder to provide you a torrented copy.

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