But publishing companies that have resisted selling digital assets to libraries are already changing their tune. Online retailer Amazon, for instance, not only sells books but operates its own publishing business. Until recently, Amazon Publishing didn’t sell ebooks or audiobooks to libraries. But shortly before the Maryland law took effect, the company announced a deal with the Boston-based non-profit Digital Public Library of America to begin licensing its ebooks to public libraries. The company said it is also working out a similar deal for Audible, Amazon’s audiobook publisher.
Library officials still back the bill, in hopes it will force publishers to negotiate better deals for digital books. “It would establish the idea that there actually is a problem here, ” said Alan Inouye, senior director of public policy and government relations for the American Library Association, “and that there needs to be a coming together on a discussion on what are reasonable terms.”
The lockdowns and library closures forced by the COVID-19 pandemic have spawned booming demand for online book borrowing. OverDrive, a company that provides digital library services to public libraries, said that patrons worldwide checked out half a billion items in 2021, a new record. In Massachusetts the Library eBooks and Audiobooks program, which provides digital assets to patrons at 377 state libraries, has seen demand increase by more than 40 percent
According to the American Library Association, libraries currently pay three to five times as much as consumers for ebooks and audiobooks. Thus, an ebook selling for $10 at retail could cost a library $50. In addition, the library can only buy the right to lend the book for a limited time — usually just two years — or for a limited number of loans — usually no more than 26. James Lonergan, director of the Massachusetts Board of Library Commissioners, believes that publishers settled on 26 checkouts after calculating that this is the number of times a printed book can be checked out before it’s worn out and in need of replacement.
And that’s what happens to a digital book after 26 checkouts. The library must “replace” it by paying full price for the right to lend it out 26 more times.
Lonergan admits that this approach makes a certain sense. Traditional printed books can only be borrowed by one user at a time, but in theory a digital book could be loaned to thousands of patrons at once. Also, printed books wear out and must be repurchased, but digital books last indefinitely. “You can’t have a book be available forever at the same price point,” Lonergan said. “The publishers need to make money.”
Lonergan thinks libraries and publishers can work out less expensive and more flexible terms. Publishers might charge a lower up-front cost for their digital products, for instance. Or they might expand the number of times libraries can lend out an ebook or audiobook. Lonergan believes that passing the Massachusetts law would give publishers further incentive to deal.
But the Association of American Publishers (AAP), which represents most of the nation’s leading publishers, is ready to fight. An emailed statement from AAP said the Massachusetts bill “raises significant constitutional and federal copyright law concerns and is an unjustified intrusion into a vibrant and thriving market for ebooks and audiobooks that benefits authors and publishers, booksellers, libraries, and the general public. “
The AAP has already sued in federal court to block enforcement of the Maryland law, arguing that only the federal government can regulate digital publishing practices.
Again, Lonergan thinks the publishers may have a point. But he said this is all the more reason for Massachusetts to pass the law. Lonergan noted that apart from the Maryland law, Rhode Island lawmakers are also considering the idea. “I think the hope is if enough states…make these efforts,” Lonergan said, “then Congress will step in and do something about this on the federal level.”