In the old days, when you wanted to borrow a book, you trudged down to your local library and checked it out.
Now, if you want an e-book or an audiobook, you can sit on your couch at home, open your library's app, and download it. Voila!
According to the American Library Association (ALA), about one fifth of the books sold in the U.S. are eBooks.
Some publishers are worried that the ease of borrowing a digital book from a library is hurting sales and have decided to limit how and when libraries can access digital books. Now, libraries in Massachusetts and nationwide are vowing to fight back. They say the practices are not just unfair and unethical, but they might be illegal.
In addition to petitions and boycotts, the Massachusetts Library Association said they have reached out the state’s attorney general, hoping that her office will bring legal action against publishers. Librarians are also hopeful that relief will come from a Congressional antitrust subcommittee investigating competition in digital markets.
Until Now: 'A Plateau of Mediocrity'
It was only in 2014 that libraries started offering their patrons access to a wide range of digital books that came from all of the so-called "big five" publishers.
“Back in the early part of the decade — 2010, 2011 — publishers refused to sell e-books to libraries at all,” said Andrew Albanese of Publisher's Weekly, who has been covering e-books and audiobooks since before they became widely popular.
In the years since 2014, an equilibrium emerged between libraries and publishers that Albanese called “a plateau of mediocrity” because “nobody was really happy” with the situation.
There are two key components of the status quo: First, unlike print books, which libraries often get at a steep discount, libraries pay more for digital content than the general public.
“We pay up to five times the cost that [a] consumer would pay for this material,” said Esmé E. Green, director of the Goodnow Library in Sudbury and president of the Massachusetts Library Association.
The ALA gives the example of "The Codebreakers" by David Kahn, for which a consumer can buy the e-book version for $59.99 but a library must pay $239.99 for time-limited access.
That time-limited access is the second thing frustrating libraries. Publishers generally limit how long libraries can use an e-book or audiobook license. The limit varies based on the particular publishing house, but the principle is the same. After the limit is reached — for example, after 26 or 52 lends or after two years has elapsed — a library must buy the license again at full price.
“All of a sudden, the title vaporizes,” said Philip McNulty, executive director of the Minuteman Library Network, which serves more than 40 library systems, including Framingham, Cambridge and Newton. “That was one of the most disappointing things, from several years ago, that publishers were doing,” he said.
The result of these rules, he said, is that library wait lists for e-books and audiobooks can be long. For his network’s most popular book, Delia Owens’ "Where The Crawdads Sing," McNulty said the wait is 19 weeks. A patron requests it January, and she’ll get it in May.
On average, the wait time in McNulty’s network for a digital book is just under two months. “That’s on average, and includes the majority of titles that have zero reserves,” he said. “So, some of the top titles have long, long wait lists.”
Libraries are annoyed with this system, but some in the publishing world do not like it,either.
“You have publishers, on the other side, who are looking at their e-book sales — which are sort of declining in the consumer market — and wondering if this huge growth in the library e-book market is a reason for that,” Albanese said. “Five years after they jumped in, they are starting to retreat.”
“For Macmillan, 45% of the eBook reads in the U.S. are now being borrowed for free from libraries. And that number is still growing rapidly,” wroteJohn Sargent, the CEO of Macmillan Publishers, in July 2019 in a letter to authors, illustrators and agents. “The average revenue we get from those library reads (after the wholesaler share) is well under two dollars and dropping.”
The New Normal? Delaying and Denying Access
In response to concerns that library lends are taking away from publisher sales, some publishers have introduced new policies that limit when libraries get access to new releases.
Most notably, Macmillan announced a two-month embargo on sales of new e-books and audiobooks to libraries. After a trial period, the policy went into effect in November 2019.
That means when a new release hits bookstores, a library is permitted to purchase one digital copy, but then they must wait until two months have passed before purchasing more copies. This is true regardless of the size of the library. For the first two months, Boston Public Library and New York Public Library each get one copy of the most recent best-sellers.
Macmillan, one of the big five publishers in the U.S., declined to be interviewed for this story, but Sargent explained this decision in his July letter, writing that it was “in response to our growing fears that library lending was cannibalizing sales.”
The hope is that readers who do not want to wait several months for libraries to get access to new releases will themselves purchase the Macmillan e-book or audiobook.
But Albanese, of Publisher's Weekly, said that Sargent is also worried libraries’ digital lending practices will create long-term problems. “It's training consumers that they can get things for free,” said Albanese, explaining Sargent’s position.
Macmillan is not alone. Blackstone Audio has also instituted a moratorium on sales to libraries for the first 90 days after a book is released. Blackstone, which is among the largest independent audiobook publishers in the U.S., started this policy in July 2019. A representative of Blackstone declined to be interviewed.
As frustrated as libraries are with the high prices, time-limited access and long waitlists, these new embargos have libraries up in arms.
“It’s a war. It’s a battle for what is right and what is fair,” said Green, of the Goodnow Library in Sudbury and the Massachusetts Library Association.
She argued that publishers have the wrong target. Libraries have played a critical role in introducing the public to digital books, she argues, and creating buzz about new releases. “We embraced the technology, we showed people how to use it, we made it accessible," Green said.
However, most of all, she said, the idea of an embargo — of limiting access — is antithetical to the whole idea of libraries. The goal of libraries, she said, is to help make knowledge more accessible to those who might not be able to pay for it.
“The library has been helping people for hundreds of years. That's what we do. And so, if you take that away, you're actually hurting your communities,” Green said. “It's not good for our social fabric."
The Amazon Theory
Albanese said there’s a popular theory about what’s motivating these new policies. "You could ask the question: Who benefits by denying e-book access to libraries for two months?" he said.
His thinks Amazon is the true beneficiary.
Albanese said that industry sales data suggests 75 to 90 percent of Macmillan's e-book sales are through Amazon. Amazon owns both the e-book reader Kindle and the audiobook platform, Audible. Audible did not respond to multiple requests for comment.
"So, if people are going to be denied a book from a library and are clearly so frustrated that they go to go buy that book, chances are pretty good they're going to buy from Amazon," Albanese said.
Others have voiced this theory, too. Bibliotheca, which works with libraries on various projects including a digital content app, wrote a letter arguing Amazon is behind publishers changing their policies. Bibliotheca urged libraries to stop sharing their data with Amazon.
“There is only one company that has access to readers’ digital retail purchases as well as users’ digital library borrowing habits, and that is Amazon,” wrote Tom Mercer, senior vice president of digital products for Bibiliotheca.
Green said that Amazon has long angered librarians. Amazon, which produces some of its own digital content and has sought out exclusive deals with prominent authors, has largely not allowed libraries to use their content.According to the ALA, Amazon Publishing “ranks as the fifth largest publisher for eBooks by dollar sales.”
"Audible, which is owned by Amazon, doesn't sell to libraries. Period. Like, not at all. Zero,” said Green.
Libraries With No Leverage
The challenge for libraries is that they have almost no power in their negotiations with publishers. “Absolutely no leverage,” Albanese said.
Publishers determine the rules. When setting prices, there is no negotiation process. Libraries do not get a seat at the table.
"Macmillan is engaging in antitrust measures," she said. "It's an unfair sales practice that you sell freely to the public, but with the libraries you have a special restriction where we're not allowed to buy things."
Green, the president of the Massachusetts Library Association, said they've reached out to Massachusetts Attorney General Maura Healey in the hopes that she will take up their case. Healey's office declined to comment on the issue but said they review all of their complaints carefully.
The Rhode Island Library Association have a lawyer looking into whether there is an antitrust violation. Their president, Julie Holden, said the ultimate goal is to get their state’s attorney general involved. Further, the Ocean State Libraries, which serves more than 50 library systems in Rhode Island, said it is considering discontinuing purchasing from Macmillan until the situation changes. They will formally decide later this month.
In October, the ALA wrote a report to the House Judiciary Committee. It informed an antitrust subcommittee that publisher policies were “abusive.”
“Unfair behavior by digital market actors — and the outdated public policies that have enabled them — is doing concrete harm to libraries,” the ALA report said.
Einer Elhauge, an antitrust expert at Harvard Law School, has looked into this topic. “Antitrust law is basically competition law. It’s a law that regulates how firms can compete with each other,” he said. “So, it’s similar to a referee in a sports competition.”
Elhauge parsed the arguments, and as far as he can tell from all the media reports, libraries would not have an easy time winning this case. The publishers do not seem to be violating the rules. There’s no single publishing house with monopoly power. Publishers are not “meeting in a smoke-filled room and agreeing to do the same thing,” he said.
In fact, from a legal standpoint, Elhauge said, there could be an argument against libraries.
“It could be the case — let’s say, it’s just crude, round numbers — a library may be paying three times as much per e-book, but it’s getting read nine times as many digital reads,” he said. “So there is this argument, if that’s true, that libraries are being undercharged.”
Elhauge said libraries could ask legislators for a new law protecting them or just more public funding. For example, he said, Congress could “solve the problem within the e-book industry by taxing the sale of e-books and having some of that money go to libraries to fund the purchase of e-books.”
Industry insiders say it seems unlikely that other publishers will follow Macmillan's lead and institute an embargo on new e-books.
“I've talked to tons of authors, I've talked to every other publisher — all of the other big five publishers — and tons of indies about this,” Publisher’s Weekly’s Albanese said. “None of them seem inclined to follow Macmillan's model of an embargo.”
This, however, may only be cold comfort for librarians who have little say in the process. Even now, as they deal with high prices and long wait times for books, the status quo is unsustainable, they say.
Correction: Due to incorrect information from a source, the fact that 75 to 90 percent of Macmillan’s e-book sales are through Amazon was initially attributed to Amazon data rather than to industry sales data. Amazon does not share their data.