On December 29, New York Governor Kathy Hochul wisely vetoed a bill that would have imposed compulsory licensing and rate regulation on copyrighted books made available in electronic formats. New York Assembly Bill 5837, if it had become law, would have granted to New York public libraries a state-level special right of access to ebooks, audiobooks, and other digital literary works that belong to copyright owners. Such access would have been based on rates deemed reasonable by courts in that state. But New York's AB 5837 clashed with the rights of copyright owners that are secured by federal law and its terms clearly were preempted. The veto of the bill was well deserved.
New York's AB 5837 is roughly identical to a bill that was recently signed into law in Maryland. Some of the serious legal problems with that state's mandate were described in my blog post from December 14, 2021: "Maryland's Unlawful Compulsory License for Ebooks Should Have a Short Shelf Life." In short, the Copyright Act confers broad, exclusive federal jurisdiction over copyrights. Attempts by states to directly regulate access to copyrighted works clash with copyright owners' exclusive rights to decide prices and terms regarding who can reproduce, distribute, display, and publicly perform their works.
Notably, not a single legislator in New York or in Maryland voted against either of those bills to impose state-level forced access mandates on ebooks and other copyrighted works. Before any state legislatures consider similar legislation, I recommend that their members electronically access the following reading materials: Sections 106 and 301(a) of the Copyright Act.
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