Guest post by Dr. Kurt Brackob
A new bill proposed in the Connecticut State Senate (SB500), sponsored by Senator Tony Hwang of the 28th District and Representative Cristin McCarthy Vahey of the 133rd District, is designed to allow the commonwealth to dictate to small and independent publishers the prices and terms by which they can sell their intellectual property to public libraries in Connecticut in direct violation of Federal Copyright Law.
The proposed bill contains nearly identical language to a Maryland Law struck down last year as unconstitutional in Federal Court. It declares that “any publisher who offers to license electronic books to the public shall offer to license such books to libraries in the state on reasonable terms.”
While many independent publishers have strong relationships with and license their works to libraries, SB500 would require that they offer licenses on “reasonable terms” to libraries in Connecticut. This would create an undue burden on small publishers across the nation who simply do not have the resources or sophistication to manage licensing at scale on a state-by-state basis.
The legislation makes no distinction between large publishers and distributors, such as Amazon, and small independent publishers and author-publishers. All of these publishers would be subject to potential violations of Connecticut law on unfair, abusive, or deceptive trade practice laws if they do not “offer to license” their electronic publications to libraries.
The bill proposed by Senator Hwang and Representative Vahey would represent a fundamental, unprecedented intrusion into the free exercise of copyright by both authors and publishers. When the State dictates what it considers “reasonable terms,” it violates the free exercise of Copyright under 17 U.S.C. §106. Only Congress, not the State, has the right to regulate copyright.
In a lengthy written opinion analyzing the similar legislation, dated August 30, 2021, Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, stated, “we conclude that under current precedent, the state laws at issue are likely to be found preempted.” Meaning that the state laws interfere with the authority of Congress and thus violate the Supremacy Clause of the U.S. Constitution.
The Supremacy Clause is not the only constitutional concern raised by SB500. As the sale of electronic literary products by definition represents interstate commerce, the proposed legislation also directly violates article 1, section 8, clause 3 of the Constitution, which gives Congress the right to regulate interstate commerce. Imposing terms on publishers from the several states in their commercial relationship with Connecticut libraries clearly interferes with interstate commerce which is the exclusive purview of the Congress of the United States.
The initiative proposed by Hwang and Vahey also violates the due process clause of the 5th amendment as it is unduly vague and does not give an author or publisher a reasonable understanding of what constitutes “reasonable terms” under the law. This is troubling as anyone who violates this law could face penalties under Connecticut law. SB500 would also impose an undue burden on small publishers and author-publishers who cannot afford the legal resources to sort through the complexities of the regulatory framework that will ultimately define the intent of the legislature.
SB500 would ultimately force publishers to accept licenses they might otherwise choose not to. In other words, under this law, publishers lose the ability to control to whom they license their works and on what terms, eviscerating their rights under 17 U.S.C. §106. The Supreme Court already decided on this issue in its 1999 decision in Orson, Inc. v. Miramax expressly ruled that states cannot infringe upon the rights of copyright holders: “The state may not mandate distribution and reproduction of a copyrighted work in the face of the exclusive rights to distribution granted under §106.” The law at issue in that case, just as S2842 would do, “direct[ed] a copyright holder to distribute and license against its will and interests.”
In her well-reasoned decision striking down the nearly identical law in Maryland, United States District Judge Deborah Boardman, stated: “Libraries serve many critical functions in our democracy. They serve as a repository of knowledge — both old and new — and ensure access to that knowledge does not depend on wealth or ability…. However, striking the balance between the critical functions of libraries and the importance of preserving the exclusive rights of copyright holders is squarely in the province of Congress and not this Court or a state legislature.”
If SB500 is enacted it will surely face the same legal challenges and suffer the same fate as the Maryland law. It is hoped that Connecticut legislators will reject this irresponsible legislative proposal and not waste the hard-earned dollars of Connecticut taxpayers by subjecting the Commonwealth to legal battles over legislation that has already been rejected as unconstitutional only last year. Legislators should consider the serious repercussions of this legislation for hardworking independent publishers and self-published authors, including minorities and other disadvantaged members of the publishing community, already facing serious challenges in the current economic environment and promptly reject SB500.
Dr. Kurt Brackob is the Director of Histria Books, a leading independent publishing house and an advocate for independent publishers.