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1. Why Overbroad State Library Ebook Licensing Bills Are Unconstitutional

Author:
Devlin Hartline
Publication Date:
10-2023
Content Type:
Policy Brief
Institution:
Hudson Institute
Abstract:
There has been a coordinated push over the past few years for states to enact legislation that would regulate the marketplace for licensing copyrighted ebooks to public libraries. The supporters of these bills argue that publishers offer ebook licenses that are too costly and restrictive, making it difficult for libraries to provide adequate access to their patrons. The gist of these complaints is that the market for digital ebooks should mirror the one for physical books, in which libraries pay the same price as everyone else and set their own rules for making loans. In essence, they want states to step in to remedy the perceived disparity with ebooks, which they blame on the allegedly abusive trade practices of publishers. But the reality is that publishers treat the two markets differently because they are fundamentally different, and there is nothing abusive about it. Moreover, publishers are merely doing what federal copyright law encourages them to do, and states are powerless to enact overbroad laws that would unconstitutionally punish them for doing so. While these concerns with the ebook licensing marketplace may be relatively new, the legal issues presented by the proposed state regulations to address them are not. Many states already have laws on copyright licensing in other contexts, and the extent of a state’s limited capacity to regulate in this area has been long-settled by the courts. Nevertheless, supporters of the new ebook licensing bills appear uninterested in the clear legal implications of their favored policy position. Shortly after the first such ebook law went into effect in Maryland, a federal district court struck it down as unconstitutional because it forced publishers to grant licenses. Other states have since moved forward with new ebook legislation based on the model text provided by Library Futures, a policy organization, that purports to solve the constitutional issue by merely dictating the terms of the licenses. However, Library Futures makes no real effort to defend the legality of its proposed legislation, and the truth is that it suffers the same constitutional defect. This policy memo explains how federal copyright law supersedes and limits state laws that regulate the licensing of copyrighted works. While states can validly target certain abusive conduct related to the manner in which copyright licenses are negotiated, federal law is clear that states cannot cross the line by dictating the terms of such licenses when they directly implicate the exclusive rights secured by the Copyright Act.
Topic:
Intellectual Property/Copyright, Domestic Policy, and Libraries
Political Geography:
North America and United States of America

2. State Right-to-Repair Laws Need to Respect Federal Copyright Laws: A Constitutional, Legal, and Policy Assessment

Author:
Devlin Hartline and Adam Mossoff
Publication Date:
08-2022
Content Type:
Special Report
Institution:
Hudson Institute
Abstract:
Various states are considering laws that would mandate that producers of electronic devices provide consumers and repair shops with all the tools and know-how necessary to repair these devices. Proponents of these “right-to-repair laws” argue that consumers should be able to do whatever they want with their devices, whether a smartphone, a smart TV, or a gaming console. Right-to-repair advocates, however, ignore inconvenient facts. These state laws conflict with federal copyright law and are unconstitutional, and they are bad policy as well. First, as a simple legal matter, the proposed right-to-repair laws are unconstitutional. These laws mandate the disclosure and distribution of the code in the computer programs that make our devices work, such as operating systems, apps, and the “digital locks” that protect these computer programs from unauthorized access and copying. Federal copyright law protects all these computer programs and “preempts” any conflicting state laws under the Constitution. Second, state right-to-repair laws are wrong as a matter of policy. These laws upset the long-standing balance of rights implemented by federal copyright law. For over 200 years, Congress has enacted copyright laws to secure to authors and innovators the fruits of their creative labors. These laws have properly balanced the rights of creators, the rights of companies that produce and distribute their copyrighted works, and the rights of consumers and the public. As a result, federal copyright law has been a launching pad for the economic and cultural revolutions in books, movies, music, and now digital games and the internet of things. Everyone values their electronic devices because copyright law provides the legal foundation for today’s thriving digital marketplace. Consumers have access to an incredible selection of movies, music, games, and many other previously unimagined digital goods and services. The same is true for products that consumers have long used and that have become “smart” today, such as phones, TVs, automobiles, and other devices. Overbroad right-to-repair laws fail to acknowledge the legal rights and the underlying policies in federal copyright law that have made all this possible.
Topic:
Economics, Science and Technology, Intellectual Property/Copyright, and Innovation
Political Geography:
North America and United States of America