Comments to the MD Attorney General on the E-Book Suit

Recently, the Association of American Publishers (AAP) filed suit in federal court to block enforcement of the Maryland e-book bill. A wide-ranging group of pro-library policy and advocacy groups has been invited to make comments to the Maryland Attorney General who is responsible for defending the law. 

The EveryLibrary Institute is proud to be among them and has sent the following letter to the Attorney General encouraging a robust defense of the law which would create a more level playing field for libraries as they attempt to acquire ebooks and certain other electronic materials.

A robust discussion of the background on the law is available from the team at Publishers Weekly

The Honorable Brian E. Frosh, Esq.
Office of the Attorney General
200 St. Paul Place
Baltimore, MD 21202

Dear Attorney General Frosh,

The EveryLibrary Institute is a national non-profit public policy and tax policy research organization for libraries. We are following the complaint filed by the Association of American Publishers, Inc. (“AAP”) concerning Maryland public law Educ. §§ 23-701, 23-702 closely, and we appreciate the opportunity to write to you today to encourage you to support a defense of this statute robustly and fully. The EveryLibrary Institute’s network includes public libraries, academic libraries, and school libraries, including those in Maryland, who are focused on the issue addressed in the statute, and more broadly on issues affecting the historic and ongoing ability of libraries to purchase, lend, archive, and otherwise make available materials for education and enjoyment, or through preservation and adaptation.

In considering the defense of this statute, we would like to point out that the AAP’s interests do not reflect those of the publishing sector universally. While their interests do extend to several large international publishing conglomerates who are concerned with perpetuating a protectionist business model regarding libraries, numerous smaller, midsize, and independent publishers are currently pursuing business practices that provide fair terms of sale alongside licensing to libraries in Maryland and across the country.

Protectionist business practices are discretionary on the part of those publishers, and that their business practices vary from library to library as well as across classes of purchasers. It may be useful to note that certain Big 5 publishers regularly offer ebooks for sale DRM-free to the consumer market. As you know, licensing terms often include confidentiality clauses that make it difficult for observers to understand the true nature of business practices by publishers. We would like to highlight a recent study by ReadersFirst of over 300 libraries across North America that were able to disclose the ebook and e-materials terms of service to allow for a robust comparison of the uneven nature of current business practices.

It may also be useful to note that while the AAP complaint looks to frame the issues as one of copyright and to remind the court that copyright is the domain of Congress, within Congress, there are significant concerns about the business practices of the so-called Big 5 publishers regarding ebook terms of sale to libraries. Sen. Ron Wyden and Rep. Anna Eshoo are in the midst of an inquiry to those publishers and to ebook aggregators in order to discover how existing business practices affect libraries and if any changes should be considered by Congress. In their letter to publishers, they note that “These licensing agreements, with terms set by individual publishers and e-book aggregators, often include restrictions on lending, transfer, and reproduction, which may conflict with libraries’ ability to loan books, as well as with copyright exceptions and limitations.” Here at the EveryLibrary Institute, we understand that libraries are only able to exist through the exercise of their right to lend under first sale doctrine. While there are other specific rights conferred by Congress to libraries under Section 108 of federal copyright law, if libraries are excluded from purchasing as a class by publishers libraries are functionally unable to be a library.

In closing, we would like to extend our appreciation to you for taking on the burden of defending this law and, by extension the ability, of libraries to purchase and lend. By doing so you help to secure certain rights and an important type of consumer protection to libraries in Maryland that have otherwise been subjected only to the interests of the business side of publishing. We encourage you to engage in this matter secure in the knowledge that the library community will support this defense with good information and full engagement of our aims, goals, and hopes. Alongside many other organizations, the EveryLibrary Institute is available to assist and support your work.

Best regards,

John Chrastka
Executive Director
EveryLibrary Institute, NFP


You can also read about our support for a proposed bill in Massachusetts that would create true parity between ebook and print book terms and conditions for libraries by following a different approach to the law.