In a potentially significant development, Senate Finance Committee Chair Ron Wyden (D-Oregon) and U.S. Representative Anna Eshoo (D-California) this week presented a wide-ranging set of questions to the Big Five publishers regarding their practices in the library e-book market.

In their letter to the publishers the lawmakers reference “the exorbitant costs and burdensome restrictions” that they contend “are draining resources from many local libraries,” and “forcing [libraries] to make difficult choices to try and provide a consistent level of service” to their communities.

“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,” the letter states.

The letter requests responses from each of the publishers (Hachette, HarperCollins, Macmillan, Penguin Random House, and Simon & Schuster) by October 7.

The questions seek a wide range of information not only on the publishers’ digital library practices, but also on the economics of the market. Among the questions, for example, lawmakers want to know the total revenue from e-book licenses from 2018 to 2020 as well as profit margins for each publisher’s top 100 sellers in both print and digital, from library sales and from the consumer market.

The letter also asks for information about any legal actions the publishers have taken since 2016, including actions involving:

  • 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
  • E-reserves

The letter comes after a decade of tension and an especially fraught past two years in the digital library market, highlighted by Macmillan's controversial (and since abandoned) experiment to embargo new release e-book titles to libraries. Library e-books have become increasingly important, meanwhile, in the wake of the pandemic.

Currently, a group of major publishers is suing the Internet Archive over its program to scan print copies of library books and to lend the scans in lieu of print under an untested legal theory known as controlled digital lending.

In addition, two states, Maryland and New York, have recently passed laws requiring that publishers who make e-books available to consumers in the state must also make those works available to libraries on "reasonable" terms. The Association of American Publishers claims the laws run afoul of federal copyright law and are unconstitutional.