One rainy L.A. morning, we were minding our own business, slowly drying off after navigating another atmospheric river, when we encountered a nasty surprise.
No, it wasn’t the dog poop by the office building elevators – we knew where that came from. What truly disgusted us was the resurgence of state bills to mandate or tamper with library licenses for e-books, which would unilaterally decrease authors’ compensation.
By requiring rightsholders to license e-books to libraries on certain conditions (these bills use the phrase “reasonable terms” to make them sound … well, reasonable), these bills seek to bypass negotiations and agreements that typically protect authors’ livelihoods and publishers’ legitimate business interests. In doing so, they violate federal law and the U.S. Constitution.
The library licensing bills have been called “a solution in search of a problem” because e-books are already so widely accessible and affordable. As one law professor explained, the most popular e-books can cost libraries under $1 per two-week loan period. Copyright blogger David Newhoff arrived at a similar figure – $1.06-$1.07 per e-book loan – when extrapolating from data about his regional library system.
While e-books are generally cheaper than print books, professional authors have increasingly relied on e-book royalties to earn a living. From 2009 to 2015, e-books jumped from comprising 3%-5% of sales to 25%-30%.
If passed, e-book licensing bills would further decimate creative livelihoods under the guise of promoting “universal access to knowledge.”
We thought the compulsory e-book licensing initiatives were floundering in December 2021, when New York’s governor vetoed her state’s bill, acknowledging that it was “preempted by federal copyright law.” We rejoiced in June 2022, when a U.S. court declared Maryland’s law “unconstitutional and unenforceable.” But these initiatives refuse to disappear.
Early this year, on a wet and ugly morning, our day got even worse – we learned that many state legislatures had begun debating similar bills. The states reviving previously rejected measures included Illinois, Connecticut, Rhode Island, and Massachusetts. Meanwhile, Virginia and Hawaii had introduced e-book licensing bills for the first time.
We wondered, “Who could be behind this e-book licensing scheme? Who is spreading misinformation to undermine creative industries?”
We got out our magnifying glass and donned our sleuthing suit, as we have often done before. This time, the trail of clues led to Fight for the Future (FFTF), an organization that routinely abuses online communication channels to sabotage copyright reforms.
In 2011, FFTF helped to foment hysteria over anti-piracy legislation, which culminated in the indefensible internet blackout of 2012. In 2016, FFTF unleashed a flood of misleading, bot-driven comments upon the United States Copyright Office (USCO), which had embarked on a multiyear study on the Digital Millennium Copyright Act (DMCA). The study evaluated whether the balance between creatives and tech companies had changed since the DMCA was passed in 1998.
Although the USCO’s study rightly concluded that the “original intended balance has been tilted askew” in favor of Big Tech, and that creatives have been doomed to an endless game of infringement whack-a-mole, FFTF’s spam bots kept insisting the opposite – that the DMCA favored large rightsholders and contributed to online censorship.
Now, in 2023, FFTF is marshalling a new front to portray copyleft proposals to be in the best interest of authors and libraries … when, in truth, they would betray both to Big Tech.
Another FFTF Misinformation Campaign
Immediately after the U.S. District Court for the District of Maryland struck down that state’s e-book licensing law, a relatively young nonprofit called Library Futures (est. 2020) released an eBooks Policy Paper. Library Futures counts FFTF, as well as other witting or unwitting Big Tech allies, among its coalition members.
Without conceding that the Maryland law violated federal law or the Constitution, Library Futures’ new e-books paper advised state legislators to rephrase compulsory licensing bills in terms of “regulating” intrastate commerce (let’s pretend that e-books don’t move around the planet at lightning speed) and voiding “unconscionable” contracts (i.e., contracts that actually let authors get paid).
According to Library Futures, this legal hocus-pocus could be used to obliterate fair market e-book payments while evading objections grounded in federal copyright protections.
We’re not lawyers – remember, we’re sleuths! – but it appears that Library Futures is coaching state legislators to sneak intrusive, infringing, and unconstitutional restrictions through the backdoor.
We had a hunch that someone – or something – must have spread misinformation to pave the way for Library Futures’ deceptive paper.
Further investigation turned up FFTF’s smoking megaphone.
A case study in misdirection, FFTF’s petition Authors for Libraries asserts broad principles, such as: “Libraries are a fundamental collective good,” pretending that such truisms are under attack. The petition plays down the differences between print and electronic formats for books, including the far greater susceptibility of the latter to piracy. Most importantly, the petition minimizes the urgent question of how professional authors can be compensated adequately – let alone fairly – in an age of mass digital reproduction and transmission.
The FFTF petition cobbles together numerous outlandish proposals – all based on the bogus theory that it’s libraries, not copyrights or creatives, that are in jeopardy. As evidence of the allegedly rampant threat, FFTF mentions the federal court ruling that overturned Maryland’s e-book licensing law. By FFTF’s reductive account, the plaintiffs didn’t succeed in defending copyrights – but rather, they squashed librarians’ effort to obtain e-books for “reasonable fees.”
First published in September 2022, FFTF’s Authors for Libraries petition now has over 1000 signatures. It concludes with some heartfelt testimonials from some writers, but they don’t stand up for their fellow authors. In fact, many of these testimonials come from full-time or retired academics, who conveniently don’t have to sell articles or books to earn a living.
The Dreaded Sequel
Despite legal sophistry from FFTF and the FFTF-supported organization Library Futures, we’re confident – well, let’s make that hopeful – that the new spate of state e-book licensing bills won’t get any further than New York’s or Maryland’s did, and for the same reason: copyright is protected by federal law and cannot be undercut by state laws.
In the meantime, however, FFTF is confusing legislators, educators, and the public about the integral role of copyright in promoting useful knowledge and creative expression. The misinformation campaign could prove an even bigger challenge if Ron Wyden, “The Senator from Google,” were now to introduce an e-book licensing bill in Congress.
And, just so you know, he has been making noises about doing so since September 2021.
As The Verge recently observed, “the future of Google itself is a bet on an expansive” – we’d say revisionist – “interpretation of copyright law.” While the observation was made in an article about generative AI, Google has been making this bet for a very long time … and getting rich at the expense of creatives in the process.
We need to stop these e-book licensing bills now – or we risk letting FFTF’s misinformation campaign lead to serious, long-lasting harms at the federal level.