Unfortunate, But Not Surprising: Court Blocks Maryland's Library eBook Law
from the the-public-suffers-but-whatever dept
Back in December, we wrote about how the major book publishers had teamed up to sue the state of Maryland over a fairly tame law concerning ebooks and libraries. As we’ve been detailing, over the last few years, the big book publishers have been working overtime to abuse copyright law to destroy libraries. Whereas, historically, a library could just buy a book like anyone else, and then lend it out, with ebooks, the publishers demand ridiculous prices for libraries and then put nonsensical restrictions on how libraries can lend out those ebooks. This is because publishers hate libraries — and, while they want to insist to you that copying a digital file is “theft,” they will also deny that those same digital files get the kind of first sale rights of physical books.
The Maryland law was very simple. It basically tried to make the digital world for libraries and ebooks similar to the analog world of libraries and paper books. It said that if a publisher offers an ebook to the public then it has to offer libraries an ebook license at a “reasonable” price. Leaving aside the debates about what constitutes “reasonable,” the publishers argued that this law violated federal copyright law, which preempts states from creating their own copyright laws. Maryland argued back that this wasn’t a copyright law, but just about licensing — pointing to an Ohio case about a law that regulated movie licenses that was found not to be preempted by the Copyright Act.
The court, though, has come down initially on the side of the publishers, issuing an injunction to stop the law from going into effect, and suggesting that it looks like the law is preempted by federal copyright law.
The Act’s mandate that publishers offer to license their electronic literary products to libraries interferes with copyright owners’ exclusive right to distribute by dictating whether, when, and to whom they must distribute their copyrighted works. Accordingly, the Court finds that the Maryland Act likely stands as an obstacle to the accomplishment of the objectives of the Copyright Act and that it is likely preempted under the Supremacy Clause.
Which… I get. But then couldn’t you just as easily argue that the First Sale doctrine does the same thing? Or various copyright exceptions?
But, in the end, the Court more or less says that if publishers need to license ebooks on reasonable terms to libraries, it’s for Congress, not the states to decide.
Libraries serve many critical functions in our democracy. They serve as a repository of knowledge–both old and new–and ensure access to that knowledge does not depend on wealth or ability. They also play a special role in documenting society’s evolution. Congress has underscored the significance of libraries and has accorded them a privileged status on at least one occasion, legislating an exception to the Copyright Act’s regime of exclusive rights that permits libraries to reproduce copyrighted material so it may be preserved in the public record across generations. See 17 U.S.C. § 108. Libraries face unique challenges as they sit at the intersection of public service and the private marketplace in an evolving society that is increasingly reliant on digital media. Striking the balance between the critical functions of libraries and the importance of preserving the exclusive rights of copyright holders, however, is squarely in the province of Congress and not this Court or a state legislature.
So, hey, Congress, maybe here’s a copyright reform that the public would actually get behind?
Filed Under: copyright, ebooks, libraries, licensing, maryland
Companies: aap
Comments on “Unfortunate, But Not Surprising: Court Blocks Maryland's Library eBook Law”
Not enough Digital Rights defenders.
Unfortunately, Ron Wyden and Zoë Lofgren make up a infinitesimally tiny minority of the 435 voting memebers of congress. I wish there were more of them!
Re: Derp. Error.
Not 435, but 535. I regret the error.
Re: Re:
*raises hand then puts it down*
A possible work around
Are their cheap ebook readers, so that the reader plus normal cost of the ebook would be less than what the publishers demand from libraries. That way the library would be lending an ebook reader with a licensed copy.
Re:
Not new, though I’m sure some older second hand readers that could be utilised.
But, given that the titles in question are DRM infected, all they’d have to do is introduce clauses in the DRM T&Cs that prohibit that (if they don’t already exist) and they’re back to square one – it’s something that would be unenforceable for the general public, but if the library are explicitly offering devices in violation of that new clause, they would still have a lengthy court battle ahead of them.
Re:
The advantage of ebook lending from an library perspective is about the variety of books you can make available to people, on a relatively easily accessible basis, thanks to cloud storage and distribution systems.
If we had a single copy of the book on an ereader, we would have to lend out that specific device to everyone who wanted the book – which creates problems of logistics, and restricts lending to individuals who can come to the library and pick up the ereader. If you put more than one book on each ereader, you’re tying up multiple parts of your limited collection every time someone takes out the device, even if they only want one of the books.
So, there’s not really a good work around by having the content only on one device, unfortunately – it doesn’t suit the needs of the majority of the public, because it creates a lot of bottlenecks to access.
Re: Re:
“If we had a single copy of the book on an ereader, we would have to lend out that specific device to everyone who wanted the book”
Well, that depends on the source of the book, really. Most DRM schemes I’m aware of tie the book to an account, not a specific device. For example, the Kindle DRM allows you to download on to multiple apps, physical readers and view in the web reader, you just have restrictions on how many can be active at once. So, as long as the library didn’t violate the T&Cs by having the book on too many devices simultaneously, they could have a pool of readers and just switch out the content when it’s borrowed.
But, as I mention above, that’s dependent on the licence allowing such lending, and I doubt the publishers would just let that one slide without a fight. Since, we know damn well that if today’s mindset was around decades ago they’d also be fighting the highly beneficial concept of a library in the first place because of imagined short-term losses, so they’re not going to let the “we’re doing exactly the same with a physical reader to allow for lower overheads and more books” go without a fight.
The advantage of ebook lending from an library perspective is about the variety of books you can make available to people, on a relatively easily accessible basis, thanks to cloud storage and distribution systems.
If we had a single copy of the book on an ereader, we would have to lend out that specific device to everyone who wanted the book – which creates problems of logistics, and restricts lending to individuals who can come to the library and pick up the ereader. If you put more than one book on each ereader, you’re tying up multiple parts of your limited collection every time someone takes out the device, even if they only want one of the books.
So, there’s not really a good work around by having the content only on one device, unfortunately – it doesn’t suit the needs of the majority of the public, because it creates a lot of bottlenecks to access.
“The Act’s mandate that publishers offer to license their electronic literary products to libraries interferes with copyright owners’ exclusive right to distribute by dictating whether, when, and to whom they must distribute their copyrighted works.”
How is this different from physical books? The “must distribute” and “to whom” part of the sentence is maybe the issue. If the publisher offers the e-book for sale to the public, doesn’t that eliminate the “must” and “to whom”?
As I’ve probably said many times, “lending” digital files is a ridiculously artificial concept in and of itself. Once the file has been copied, it’s been copied and the idea of “returning” it is as nonsensical as returning words someone has spoken.
Copyright just doesn’t work at all in the modern world. Which isn’t at all surprising given it was invented in the 18th century to control printing presses.