Connecticut is About to Force* Publishers to Sell eBooks to Libraries
If you shared my dismay yesterday when you read the details about Macmillan’s library ebook pilot then I have something to cheer you up. A new bill has been proposed in the Conn.General Assembly that would require publishers to sell ebooks to libraries.
Some information on the proposed law is already online, but I am hoping that the actual law is more detailed and specific in the conditions and requirements. I can see a couple serious loopholes in the proposed bill, which states:
Be it enacted by the Senate and House of Representatives in General Assembly convened:
That the general statutes be amended to require publishers of electronic books to offer such books for sale to public and academic libraries at the same rates as offered to the general public.
The first question that springs to mind is whether this is legal. Given that state authorities regulate all sorts of business activities already I do not see a Constitutional argument that would invalidate this regulation.
But the fun part about this law is that publishers can comply on price while still limiting what libraries can do with the ebooks. The proposal says "same rates" but not a more exact term like "same terms and conditions". The former term is commonly used in the UCC (a body of regulations enacted by most US states), but I cannot see that it is ever specifically defined and that is a problem.
All the instances of "same rates" that I found in the Conn. UCC referred specifically to money, not the nuances of a contract to sell digital content. That is an issue because, for example, HarperCollins' 26 checkout limit would still arguably be legal under the proposed bill.
Perhaps I missed something, but my proto-lawyer Aspie nature is telling me that the term needs to be better defined.
There’s also no mention of school libraries, though I suppose they are covered by he reference to academic libraries. But more importantly, the proposed bill as quoted above has a huge loophole. Publishers can comply with that law by pulling the majority of their ebooks from library ebook distributors and then offering exactly 2 titles at retail prices.
I don’t see any place in the proposed bill where it says publishers have to offer their entire catalog to libraries. They are required to sell "ebooks", and 2 titles would qualify.
Still, now that we know about this law and the many problems with it, everyone who approves of the intended goal now has the chance to contact the relevant legislators in Conn. and start lobbying them to pass a more nuanced version of the proposed bill.
It is rather odd that a legislator should see the need to resolve this Gordian not by applying legal force. While I’m sure many in publishing will wring their hands and express dismay, I think this bill stands in remarkable contrast to the lip service the major publishers give to supporting libraries.
Ask any major publisher and they’ll tell you that they love libraries, that libraries are great partners, and more BS along that line. Everyone who has heard that line knows what utter BS it is, and this proposed bill confirms it. If the major publishers really loved libraries then this law would never have been necessary.
This proposed bill has been referred to the Joint Committee of General Law. You can find a list of legislators on that committee here.