Tennessee Also Has a Bill and the Maryland Hearing today
/RF apologizes to Tennessee for not noting in late January (when mentioning Rhode Island and Illinois) that a library digital content bill is also active there as of Jan. 26.
SB1955 seeks the following: “This bill establishes requirements for a publisher that offers to license an electronic literary product to the public. Under this bill, a publisher who offers to license an electronic literary product to the public must offer to license the electronic literary product to libraries in the state on reasonable terms, which would enable libraries to provide library users with access to the electronic literary product.”
Thank you, Tennessee, and welcome! With you joining, some of the allies of the AAP can no longer claim that our effort is some elite coastal (Illinois sort of refuted that anyway—quite a bit of coast there, even if it is fresh water) and “blue state,” as if being a state where the populace primarily votes democratic invalidates anything. No, our effort is truly bi-partisan. Many proudly conservative state senators and representatives have voted “yes.” If yours is a “Red Sate,” you may have even more support. One of our key points is that the present status quo is a ripoff of public dollars on a massive scale. But good stewardship of public funds will play well anywhere.
Today’s Maryland hearing, Association of American Publishers v. Frosh, brought few surprises. Those following the case so far will have heard the basic arguments and the precedents. [Update: the hearing is well-covered in Andrew Albanese’s Publishers Weekly piece. One new point from the AAP attorney is that the state’s position is anti-capitalist, somehow demonizing profit. Typical AAP stretch: nothing in our Maryland denies profits. We will spend as much, or even more, if terms are better. The profits on library sales will be there—they might just not get distributed the same way. And perhaps newer or lesser known writers will get more of a share, with sales of their books increasing with more readership.
The issue of course isn’t profit. It’s excessive cost, at least when compared to what we spend on print. And though some of the bills advancing state that twice retail consumer ebook prices would be reasonable, I still think a comparison to print, with its hundred plus years of balance, is best, at least for public libraries. Twice consumer ebook price is likely to be around $30—not the at the publishers have an ebooks Bonanza at agency prices. Print retail would be about $27—a far fairer price on a two year license (or call it 30 to 40 circs—much better than a time-based license) than we pay from the larger publishers. Yes, give us that, and maybe a perpetual license at two or even three times that many public librarians might call it a deal. It’s vastly different for academics, of course. There, perpetual access, or better still ownership at retail print price is necessary. Unlike in most public libraries, the print equivalent usually doesn’t get worn out and retains value for research. Yes, different terms will have to be negotiated to get to “reasonable.” As we’ve said so many times before, no one model would suit every use, except perhaps ownership at consumer ebook retail—and at least in public libraries, that model would not seem fair to the publishers. (There, see—we can see it from all sides!)
Both sides presented well today. The summaries at the end laid out what this hearing is about: corporate interests vs people's needs. Corporate interests got everything that could have been wished for under DMCA. This hearing is about a rebalance for libraries and their readers. I'm not sure how else we will see any redress—not if the matter is left up to market forces under the current unfair status quo. We can only hurt readers by doing the one thing that may be necessary take to get any sort of concession: simply refusing to license at usurious rates. (Let’s call it the nuclear option—not attractive.) Today's AAP arguments didn't show that they have invalidated the state's position of having an overriding interest in fair contracts for libraries. Judge Boardman noted at one point that "“It does seem to me that there is inequity and an unfairness on how publishers have treated public libraries.” Yes, indeed!
It is quite clear that more balance is needed if libraries are to fulfill their vital function of providing materials to all and continuing to be the "Palace for the People." We do not denigrate profit and want to treat authors and publisher fairly, but "enough" is long past. No matter what the outcome of today, this is an important and valuable step in what will have to be a long campaign. As many states are now showing, librarians AND their legislators will be there, fighting for readers. We in libraries are slow to be contentious, but we will not back down when our core mission is at stake. I'm very proud of our state legislature and our Attorney General for standing tall for Marylanders today. Outright dismissal of the AAP request for preemption seems unlikely. I hope we move into discovery. Let’s take a look at the profits. Maybe a few authors will want better deals, too. RF salutes the efforts in other states. We encourage others to join, no matter what the Maryland outcome. When we wake up to see that corporate interests have made digital content in libraries a commodity and source of every renewed revenue, always slipping away, impoverishing our collections and making access difficult for readers who don’t want or cannot afford to buy, it will be too late.
But with ebooks, that is how it already is with our holdings from large publishers, isn’t it?