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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.

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Paul January 25, 2013 um 8:11 pm

Rather than urging that the state use force, why not just let the market work? If the large publishers want to be left in the dust ala Kodak, let ’em. It’s THEIR business to sink or swim after all.

Nate Hoffelder January 25, 2013 um 8:44 pm

Letting the market work it out means there will be few or no ebooks from the major publishers in the libraries, sold at high prices with ridiculous restrictions. There would effectively be no market.

There are times where a seller should not be allowed to refuse to do business. Given that it could be argued that the less well off depend on libraries more than the rich, one could argue that not selling ebooks to libraries is discrimination based on economic class.

Paul January 25, 2013 um 9:15 pm

And so what if the majors refuse to place their ebooks in libraries? Their loss. But consider that such a situation offers a VERY ripe avenue for small indie publishers and the self-published, who, until now, have been left out in the cold completely. Forcing anyone to do business is a recipe for disaster. Look what it did to the housing/mortgage market. Rather than using coercion and force, we should be using the the reasoning of our arguments, based on sound market principles, to make an economic case to the publishers as to WHY it will be in their best interest to offer their ebook catalogs to libraries. Anything else smacks of failed socialist economics.

Nate Hoffelder January 25, 2013 um 9:32 pm

Except that a book from one publisher is not always going to be an adequate for a blocked title from another publisher. And this law does not require that the publishers do anything other than treat a library like their consumer customers. That is not an unreasonable demand. it is in fact the current situation for the paper book market.

"reasoning of our arguments"

Have you still not figured out why publishers don’t like libraries? It’s because they see each book or ebook sold to a library as lost sales. Whether or not this is true, there is no reasoning with a man afraid for his pocketbook.

Also, please consider for a moment why we have public libraries. We have them for the same reason that we found public education. It levels the playing field in out society. That is a public good (and should be defended as such) which outweighs whatever loss the publishers think they might suffer.

fjtorres January 26, 2013 um 6:27 am

No need to argue the merits of the case, Nate.
They have the power to do so if they choose.
The only reason not to choose to is sufficent palm grease and obviously the BPHs have fallen behind in their "brown bag lobbying" in Connecticutt. 😉

fjtorres January 26, 2013 um 6:29 am

They need to connect with a bigger cut, to be more blunt.
"An honest politician is the one that stays bought." 🙂

fjtorres January 26, 2013 um 6:14 am

Strictly speaking, libraries are creatures of the "state" and the state has the power to regulate economic activity. A recent SCOTUS decision has made it clear the "state" can even compel economic activity. So it is hardly impossible for the state to say that to do business in the state a publisher or distributor must also deal wih the state. The mandate would be the economic equivalence of a tax and uder the tax equivalence principle set forth by the SCOTUS, perfectly legal.
As a matter of fact, the Federal Government has for a very long time required this: every book published in the US has to be available to the Library of Congress. It is a conditio of copyright registration.
Make no mistake, the state *can* compel you to sell to the state pretty much anything at any time. And under tax equivalence it can force you to buy anything from anybody.

Property rights?
What property rights?
"You didn’t build that!" remember?

Paul January 26, 2013 um 3:18 am

Nate, it’s a quaint notion to think that we’re serving the "public good" by using force to violate the rights of others, but frankly, it’s unethical. See this to understand why:

fjtorres January 26, 2013 um 6:23 am

You forget that the state doesn’t deal with ethics. Or morals.
Only law. And force.
And the state uses its legal monopoly of force to create law.
What is quaint is the notion that a government is subject to ethics.
Not on this planet, not in this universe; not now, not ever.
It isn’t even part of political theory, much less reality.

The only difference between one type of government and another is the rationale they hide their threat of force behind. "For the public good" sounds better than "because the great leader says so" but the effect is the same.

We’re all serfs.
Only difference is some are volunteers and like it and some of us resemt the hell out of it.
But that’s a difference that makes no difference.

William Walsh January 28, 2013 um 3:52 am

We constrain copyright related commerce every single day. Every single minute. An artist or songwriter doesn’t have to authorize use of their music in other create works, compulsory licenses already have a long standing tradition in our copyright law, and in my opinion, serve a very similar function to what Nate is proposing here.

Bill Smith January 26, 2013 um 12:04 pm

This proposed law might actually do very little to help the situation since publishers could simply sell the books to libraries under the terms imposed in consumer sales: No right to resell, no right to loan, etc.

So libraries might be able to buy books at the same price consumers pay…and only loan them once.

That’s a very likely reading IMHO unless the law specifically includes authorized uses, loaning terms, etc.

Nate Hoffelder January 26, 2013 um 12:51 pm

Good point, and one I missed.

MyLogic August 24, 2013 um 11:19 am


There is a very, very, very simple solution to the dilemma.

Given recent US Supreme Court decisions, I’m surprised no one has mentioned it. The solution is as simple as proposing a 30% tax on all Publisher book sales (in the state), and stating that the only exemption to the new tax is…for Publishers that offer their electronic catalog to all private and government entities at the same rate, and with the same rights, as individual consumers have as of the date of the implementation of this new tax. Publishing companies have 180 days to be in full compliance (by which time all agreements with private and government institutions need to be amended in order for companies to qualify for this exemption). Publishers failing to meet the exemption deadline, are subject to the new tax, retroactive to the date this law was enacted by the state [the day the tax was signed by the governor]).

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