American Library Association Demands E-Books from Publishers

September 24, 2012. The American Library Association (ALA) sent an angry letter to book major publishers criticizing them for not letting libraries distribute their e-books.

This letter, signed by Maureen Sullivan, head of the ALA, states that "Simon & Schuster, Macmillan, and Penguin have been denying access to their e-books for our nation's 112,000 libraries". She demanded that "Simon & Schuster must sell to libraries".

"We librarians cannot stand by and do nothing while some publishers deepen the digital divide. We cannot wait passively while some publishers deny access to our cultural record. We must speak out on behalf of today's -- and tomorrow's -- readers. The library community demands meaningful change and creative solutions that serve libraries and our readers who rightfully expect the same access to e-books as they have to printed books."

Sullivan also alleged that these publishers' actions are "discriminatory". However, she did not disclose which discrimination statute has been violated. Nor did she threaten legal action or referral to the Department of Justice's (DOJ) Civil Rights Division or other prosecutorial or regulatory agency.

The Association of American Publishers (AAP) responded in a release on September 28 that "The issues surrounding e-lending, however, are not as simple as Ms. Sullivan claims. Publishers support the concept of e-lending but must solve a breadth of complex technological, operational, financial and other challenges to make it a reality. Each publishing company is grappling individually with how to best serve the interests of its authors and readers, protect digital intellectual property rights and create this new business model that is fair to all stakeholders."

The AAP response is too polite to point out that while the public lending library model once served important purposes, it is becoming increasingly obsolete and irrelevant. The benefits once provided to many only through lending libraries are now provided elsewhere.

For example, a wide range of information is now available online for free, rendering the limited collection of printed books and periodicals in lending libraries less useful and less convenient. Also, readers can now purchase from a huge selection of new books via online book sellers, and from an even larger range of used books, often at trivial prices, through online secondary markets for books such as those of Amazon, Abe's Books, and eBay. In addition, commercial e-book sales have substantially lowered new book prices. Moreover, a large number of books are available online for free, and the Google Books program is digitizing and making available public domain works from major libraries for free.

In the case of educational material, most of the great literary works, including novels, poetry, and drama, and much of the best books in fields such as history and philosophy, is in the public domain, and available online for free.

The AAP is also too polite to state that the ALA's public lending library members, as well as its school and university library members, are mostly run by political subdivisions of states. States, due to an unfortunate series of 5-4 opinions written by the Rehnquist court's states rights faction, have immunity from suits for damages for copyright infringement. Some states now infringe, and hide behind 11th Amendment immunity. Until this loophole is rectified, publishers have particular cause to fear unauthorized distribution of their works via the state library systems.

See, 1999 Rehnquist opinion in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, invalidating the Patent and Plant Variety Protection Remedy Clarification Act, and 1999 Scalia opinion in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, invalidating the Trademark Remedy Clarification Act.

Information technology has reduced the costs of reproducing, storing, and transferring books to trivial levels. However, the cost of researching, writing, editing, and marketing quality works remains expensive. It requires intelligent and educated people. It is time consuming and labor intensive. And, returns are based on purchases, which are highly uncertain. Providing digital copies of copyrighted books to the ALA's 112,000 libraries could threaten the financial viability of writing and publishing.