Finance Committee Chair Ron Wyden (D., Oregon) and U.S. Representative Anna G. Eshoo (D., California) lead the latest charge, drafting a series of letters to the Big Five publishers to clarify their ebook contracts with public schools. Ebook contracts are notoriously tricky. For libraries, who can purchase print books and own them through their natural lifespan, ebooks come with restrictions on a number of fronts. They aren’t owned by the library and instead are licensed: at any time, the books may disappear or come with circulation limits, and those licenses come at astronomical prices. In cases where licenses can be negotiated with better terms for the library, costs only grow. These contracts and the ways they restrict access for users have become magnified over the course of the pandemic, when the digital divide became even more profound. As reported in December, one school district in southern California found itself budgeting $27 per student every 12 months to access the classic and widely-taught The Diary of Anne Frank. The same title can be purchased in print by a library for a one-time price and used without limit; outside of the library, the average person can purchase The Diary of Anne Frank on Kindle one time from anywhere from $.20 to $14 and read it as much as desired for that single cost. That doesn’t mean non-library purchases of ebooks are perpetual, nor are they owned by the individual who made the purchase. All of these challenges have led to demand for change. “E-books play a critical role in ensuring that libraries can fulfill their mission of providing broad and equitable access to information for all Americans, and it is imperative that libraries can continue their traditional lending functions as technology advances,” reads the letter Senate Finance Committee members sent to Penguin Random House, Hachette, HarperCollins, Simon & Schuster, and Macmillan.
Finance Committee members cite these rising and exorbitant as untenable for libraries to achieve their mission in making materials accessible for patrons. Senator Wyden’s mother worked in libraries, making this a particularly personal topic. Libraries, Wyden noted, are the cornerstone of communities across America and transparency from publishers on their practices is essential in order for libraries to fulfill their mission as information centers. And in an era of misinformation, ever-shifting access to research thanks to paywalls, libraries need to be at the forefront of providing resources to their patrons. “Many libraries face financial and practical challenges in making e-books available to their patrons, which jeopardizes their ability to fulfill their mission. […] Under these arrangements, libraries are forced to rent books through very restrictive agreements that look like leases,” the members added in their letter.
The letter demands answers to the following questions from each of the Big Five by October 7: For sales of physical books to academic and public libraries, please describe any restrictions you place on the sale related to potential exercise of copyright limitations and exceptions available to schools and libraries

For each year from 2018 to 2020, what was your total revenue for the sales of physical books to academic libraries and to public libraries, respectively? For each year from 2018 to 2020, what was the total number of physical books sold to academic libraries and to public libraries, respectively?

For the licensing of e-books to academic and public libraries, please describe any restrictions you place on the license related to copyright limitations and exceptions available to schools and libraries. 

For each year from 2018 to 2020, what was your total revenue for the licensing of e-books to academic libraries and to public libraries, respectively? For each year from 2018 to 2020, what was the total number of e-book licenses sold to academic libraries and to public libraries, respectively?

Please provide copies of your standard e-book licensing agreements for academic libraries, public libraries, and consumers, and please answer the following questions: 

Do you offer perpetual e-book licenses to academic libraries, public libraries, or consumers? If so, under what terms and conditions? Do you offer sales of e-book files (with print-like rights of ownership, instead of licenses) to academic libraries, public libraries, or consumers?

Please summarize the lending restrictions included in your standard e-book licenses for both academic and public libraries, including:

the number of times and amount of time you allow an e-book to be loaned; and the legal or technical restrictions you place on each loan.

Please summarize the standard e-book licensing terms, for both academic and public libraries, regarding your access to library data, including:

what reporting requirements are placed on libraries for acquiring these e-books; whether you have any access to the lending logs of the e-books, including tracking any personal information associated with patrons and check-outs; and what other data you have access to, including uses of the work (e.g., highlighting, notes, or annotations) and patrons’ data.

During COVID-19-related shutdowns, did you create any new licensing or permission regimes (e.g., permission to read aloud) for some or all of your e-book offerings?  If so, please describe the nature of the works covered by the change and the extent of the changes. Please describe any legal actions—including cease and desist letters, threat of lawsuit, actual lawsuits, or imposition of restrictive licensing terms—you have taken since 2016 in response to the following activities: 

multiple checkouts of digital texts; interlibrary loan; controlled digital lending; libraries making copies of owned works to lend digitally on a one-for-one basis; schools making available electronic copies of books they physically own to students during the pandemic; and e-reserves.

For each of your 100 most sold or licensed works to libraries in 2020, please provide the following data from 2020:

the average price of a physical copy of the work sold to libraries; the average price of a physical copy of the work sold to consumers; the average price of an e-book license to an academic library and the average number of loans permitted; the average price of an e-book license to a public library and the average number of loans permitted; the average price of an e-book license to consumers; the profit margins for the sale of a physical copy of the book to consumers and to libraries; the profit margins for the license of an electronic copy of the book to consumers and to libraries; whether you allow libraries to purchase (rather than license) a digital copy of a book, and if so, at what average price.

For each of your 100 most sold or licensed works over the period of 2015 to 2019, please provide all the information requested in question 8 above, along with the year-over-year changes in the average sales price of a physical copy and the average licensing rate for a digital copy to consumers and to academic and public libraries. “We are thrilled to see legislators taking action for the public’s right to own and preserve all books, no matter what form they are published in. With so much of our lives happening online, the opportunity to own digital books is almost nonexistent—a stark and concerning departure from how our society interacts with paper books,” said Holland. “Through restrictive and expensive licensing schemes on ebooks and audiobooks, publishers are acting against the best interest of authors by reducing the number of titles that libraries and schools are allowed to offer and preserve. This often means that the most successful and mainstream books are the only ones purchased, locking many authors out of income from library purchases as well as away from the vast audiences of readers that public institutions serve. We hope that legislators will take swift action to ensure perpetual access to knowledge and diverse voices for everyone.” Earlier this summer, Maryland became the first state to pass legislation on ebook licensing. The bill, which goes into effect January 1, 2022, requires any publisher offering ebooks for sale to consumers in the state also make those materials available for purchase by libraries in the state. The Finance Committee’s letter is a great first step toward equitable access. Whether or not these queries will be answered — or changed — remains to be seen.