The goal of these bills is to firmly ground ebook contracts and licenses under state law. The language of the bills does not implicate the purview of the federal government. The bills do not include any language that "forces" publishers to grant a license; the language proposes an approach that does not demand that publishers license to libraries, but instead merely utilizes existing state law to make sure ebook license and contract terms are fairly balanced and are an effective use of taxpayer money.

Previous attempts at state ebooks legislation, such as the eBook legislation at issue in Maryland, contained language requiring that publishers “shall offer” licensed ebooks to Maryland public libraries “on reasonable terms.” The court in Maryland stated that the “shall offer” language in the Maryland ebooks bill was preempted by federal law because “[t]he Act’s mandate that publishers offer to license their electronic literary products to libraries interferes with copyright owners’ exclusive right to distribute by dictating whether, when, and to whom they must distribute their copyrighted works.” In other words, it "forced" publishers to sell to libraries.

By contrast, these eBook bills do not contain the “shall offer” language and instead are rooted in the purview of the state (i.e. contract law), clarifying that states are within their rights to regulate rather than mandate contracts.

It doesn’t. 

The Maryland ebooks law that was struck down forced publishers to offer a license to the libraries if the publisher licensed any ebooks to consumers in the state. Typically a “compulsory” license like this is something that only the federal legislature (Congress) can regulate, since compulsory licenses are part of the Copyright Act. Because the Maryland law compelled/forced publishers to sell to libraries, even if the publishers did not want to sell to libraries, this law was ruled as an unconstitutional exercise by the State of Maryland - only Congress can make compulsory licenses.

Here, all of the Maryland language to force publishers has been removed. That means it no longer involves copyright law. In fact, many of the states have eliminated any language that has to do with copyright. Again, this is a licensing and contract bill based on previously existing state laws that regulate contracts. The language of this bill harnesses the power of the state to help libraries that serve the public negotiate fair and equitable terms that are reflective of the special mission libraries have in service of the public.

These bills concern library ebook contracts and licensing agreements with publishers. Because libraries have a forward-facing mission in service of the public and are most often funded by taxpayer money, states have a special interest in regulating how that money is spent. 

The bills do not affect any other ebook licenses offered to the public; they are unique to libraries since their special mission is one of access, preservation, and equity.

As of March 2023, Connecticut (HB 6800 and 6829), Massachusetts (SB 2188 and HB 3239), and Hawaii (HB 1412) have active versions of these bills in committee. Rhode Island also has a similar bill; however, it’s distinguishable from Connecticut and Massachusetts because it’s a “hybrid” of the Maryland bill (in that it includes the “shall offer” language, as well as a clause that would render unenforceable license terms that “limit the rights of a library or school under the U.S. Copyright Act”). Importantly, that provision would be severable – meaning that should the Rhode Island bill become law and parts of it later declared invalid, the remainder of the bill would stand. Virginia also introduced a similar bill to Rhode Island, but a few weeks ago the senate committee voted to table it - and as far as we can tell, not for any reasons related to copyright.

The eBooks Study Group are also working with other legislatures presently to introduce more library ebook bills in other states.

Check out our Bill Tracker page for the latest status updates on these bills.