Just hours before it was set to become law, New York Governor Kathy Hochul on December 29 vetoed New York's library e-book bill. The bill is now back with the legislature, where it is tabled.

The veto comes despite strong grassroots support: in June, the bill unanimously passed the New York Assembly 148-0, and passed the New York State Senate 62-1. But the Association of American Publishers' December 9 federal lawsuit seeking to block implementation of a similar law in Maryland sparked concern in the governor's office. And in her brief explanation of the veto, Hochul cited the AAP's concerns.

"While the goal of this bill is laudable, unfortunately, copyright protection provides the author of the work with the exclusive right to their works," Hochul wrote. "As such the law would allow the author, and only the author, to determine to whom they wish to share their work and on what terms. Because the provisions of this bill are preempted by federal copyright law, I cannot support this bill. These bills are disapproved."

The New York bill was also opposed by a cohort of powerful New York-based industry groups, including the AAP and the Authors Guild, which urged Hochul to veto the measure in a recent letter, calling the bill "an unjustified attack" that would have "a significant negative impact on the economy and jobs" in New York.

"We thank Governor Hochul for taking decisive action to protect the legal framework that has long incentivized the American private sector to invest in, publish, and distribute original works of authorship to the public, in service to society," said AAP president and CEO Maria Pallante in a statement. "The bill that she vetoed was rushed through the state legislature in response to a coordinated, misinformation campaign, supported by Big Tech interests and lobbying groups that are notorious for wanting to weaken copyright protections for their own gain."

At press time, the New York Library Association did not have a comment.

Meanwhile, despite Hochul's veto, the question of federal preemption remains undecided. Maryland state attorneys are due to file a consolidated motion by January 14 comprising their forthcoming motion to dismiss the AAP's lawsuit against the Maryland law and their motion in opposition to the AAP’s bid for a preliminary injunction. The AAP reply is due by January 28. A remote hearing is set for February 7.

The AAP first filed suit against Maryland attorney general Brian Frosh in federal court in Maryland on December 9, claiming that the Maryland law is preempted by federal copyright law, among other issues. And on December 16, AAP lawyers filed a subsequent motion for a preliminary injunction, claiming the law would cause “immediate” and “irreparable” harm if allowed to take effect.

The court's schedule, however, means that the Maryland law (which passed the Maryland General Assembly unanimously) will take effect on January 1, 2022 as set out in the law’s text—though for how long remains to be seen.

The library e-book bills come after a decade of tension in the library e-book market, with librarians long complaining of unsustainable, non-negotiable prices and restrictions on digital licenses. Specifically, the bills emerged as a response to Macmillan’s controversial (and since abandoned) 2019 embargo on frontlist e-books in libraries, which led library advocates to take their concerns to state and federal legislators.

"This is a powerful moment for libraries," concluded a December, 2020 report on digital lending from the ALA's Joint Digital Content Working Group. "If we cannot find ways to make our digital collections robust and lasting, including a return to perpetual access as an option, libraries will never be able to meet an ever-increasing demand and provide equity to the communities we serve."

Maryland became the first state to enact library e-book legislation, with its bill passing the Maryland General Assembly unanimously on March 10, 2021, and becoming law on June 1. New York followed suit, passing a similar bill in June. A handful of other states are also considering similar measures.