Several state legislatures have been considering bills, already approved by lawmakers in Maryland and New York, to force publishers to license ebooks and digital audiobooks to public libraries on favorable terms. The scheme goes beyond the constitutionally provided role of the states – and if taken to the federal level would remain an unwarranted interference with publishers’ freedom.
Protection of authors’ copyrights is one of the few areas in which the Constitution specifically enumerates a federal power to regulate commerce. Article I, Section 8 grants Congress the power of “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” James Madison, who took a particular interest in the question, argued in Federalist No. 43 that the states “cannot separately make effectual provisions” to secure such rights and noted that even under the Articles of Confederation most states had fallen into line with efforts in Congress to coordinate a single nationwide policy. The courts have confirmed that the Copyright Act, passed in exercise of this power, pre‐empts state laws that might infringe or invalidate the federally protected rights, which extend in many situations to owners’ right to secure through contract their preferred channels of distribution.
But everyone likes public libraries – right? Which tempted some state lawmakers to skip what must have seemed the fine print. In May of last year, Maryland enacted a law requiring publishers to offer content licenses to public libraries “on reasonable terms that would enable public libraries to provide library users with access to the electronic literary product.” In many instances this implies mandating a more liberal licensing set‐up than ordinary customers get, since a license for any one individual buyer might restrict sharing the book to unrelated persons for use on other devices – something libraries presumably need to do. The law carried civil penalties in the tens of thousands of dollars as well as criminal penalties of up to a year in jail, as well as a private right of action with attorney fee awards.
The bill was passed without a dissenting vote; Gov. Larry Hogan allowed it to become law without his signature, perhaps recognizing that the votes were lacking to sustain a veto. But in February a federal district court struck it down as inconsistent with the uniform national policies of the Copyright Act, a decision analyzed at length here by Randolph May and Seth Cooper of the Free State Foundation (shorter version).
The court’s reasoning is unlikely to prove a fluke. In December New York Gov. Kathy Hochul cited similar reasons in vetoing a version of the scheme. The U.S. Copyright Office itself, in an advisory nonbinding letter to the office of Sen. Thom Tillis (R‑N.C.), said it regarded the Maryland and New York bills as invalid because of pre‐emption.
No doubt advocates of giving libraries a cheap break will respond to the pre‐emption roadblock by pushing for a federal law to do the same thing. The idea, however, would remain a bad one. This is not to say that the many knotty problems of copyright law should necessarily be resolved in favor of copyright hawks – the Constitution’s specification of “limited terms” provides one vital counter‐consideration, and others can reasonably be found in fair use, untraceable (“orphaned”) ownership rights, and others.
But the law would be wise to stay away from forced licensing schemes whose purpose is to assist a public‐sector institution by appropriating a portion of creative wealth from authors and publishers, especially if in doing so it would turn the subjective search for fair licensing terms into a legal trap for the unwary. Publishers and authors that regard wide library distribution as a good way to build public visibility should remain free to pursue that market strategy – but those with a contrary vision should be free to pursue theirs too. As May and Cooper rightly conclude, compulsory licensing and rate regulation of copyrighted works would be not only onerous as regulation but “antithetical to the property rights and free market foundations of American copyright law and policy.”
