Would these bills violate the rights of publishers or authors under federal copyright law and the United States Constitution?

No. The bills as written do not violate any federal copyright law. They are bills that firmly ground the library ebook contracts under existing state law. They ensure that the library ebook licenses are more reflective of the special mission libraries have to provide access to ebooks to the public. The bills do not affect any other ebook licenses that are offered to the public; they are unique to libraries since their special mission is one of access, preservation, and equity. 

States have the power to regulate all types of contracts - that’s why most states already have contract and licensing laws that are incorporated by reference into the ebooks bills. Existing laws about consumer protection, contract regulation, and the Uniform Commercial Code are often already part of state law.

The bill does not force the publishers to sell (see below); it merely states that if the publishers want to conduct ebooks business in the state they have to follow the state's law developed for library ebooks. If the publishers choose to have terms that do not reflect the library mission, then they miss the benefit of the state’s or library's purchasing power. This does not violate publishers’ rights in any way, as it is merely using consumer protection and other laws the way the legislature intended them to be used. These types of laws do not violate the rights of companies that they regulate.

In this way, the bill is very similar to some of the net neutrality laws that have been developed in many states. Under those laws, if the internet service providers want to do business in the state, they have to comply with the net neutrality principles adopted under that state’s law. This is just one of many examples of how states can help regulate unfair contracts in service of the public - and in this case, the public benefit is for libraries to have fair and equitable contracts.

What is the difference between the Maryland bill that was struck down, and these new bills?

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.

How does copyright law factor into these bills?

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 implicates 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.

What is the scope of these bills?

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.

Which states have active legislation?

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.

Who is behind these efforts? 

The eBooks Study Group is a 501(c)(4) non-profit organization led by a self-assembled, largely volunteer, small group of librarians, attorneys, and library advocates from various non-profit organizations such as Library Futures, EveryLibrary, and ReadersFirst.

The model legislation was developed by Kyle K. Courtney, a copyright lawyer and librarian, and co-founder of Library Futures.

(Library Futures, a separate entity, is a project of the New York University Engelberg Center on Innovation Law & Policy. Their funding is publicly available.)