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HOUSE DOCKET, NO. 3425 FILED ON: 1/20/2023
HOUSE . . . . . . . . . . . . . . . No. 3239
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Ruth B. Balser
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act empowering library access to electronic books and digital audiobooks.
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PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:Ruth B. Balser12th Middlesex1/20/2023Brian W. Murray10th Worcester1/27/2023Natalie M. Higgins4th Worcester2/17/2023Patrick Joseph Kearney4th Plymouth3/8/2023 1 of 7
HOUSE DOCKET, NO. 3425 FILED ON: 1/20/2023
HOUSE . . . . . . . . . . . . . . . No. 3239
By Representative Balser of Newton, a petition (accompanied by bill, House, No. 3239) of Ruth
B. Balser and others relative to authorizing library access to electronic books and digital
audiobooks. Tourism, Arts and Cultural Development.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
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An Act empowering library access to electronic books and digital audiobooks.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 Chapter 78 of the General Laws is hereby amended by adding the following section:
2 SECTION 35. An Act empowering library access to electronic books and digital
3audiobooks.
4 A. Definitions
5 For purposes of this act, the following terms mean:
6 (1) “Digital audiobook” means a published work that is in the form of a voice recording
7(narrated) and is released as a digital audio file;
8 (2) “Electronic book” means a published work that is in written form and is released as a
9digital text file; 2 of 7
10 (3) “Electronic literary materials” means digital audiobooks and/or electronic books;
11
12 (4) “Libraries” include:
13 (A) public libraries;
14 (B) public elementary school or secondary school libraries;
15 (C) tribal libraries;
16 (D) academic libraries;
17 (E) research libraries;
18 (F) special libraries
19 (G) talking book libraries; and
20 (H) archives;
21 (5) "Publisher" means one whose business is the manufacture, promulgation, license,
22and/or sale of books, audiobooks, journals, magazines, newspapers, or other literary productions
23including those in the form of electronic literary materials. For the purposes of this bill the term
24‘publisher’ shall also include aggregators who enter into contracts with libraries for the purposes
25of providing materials for purchase or license from the publishers;
26 (6) “Aggregator” means one whose business is the licensing of access to electronic
27literary material collections that include electronic literary material from multiple publishers;
28 3 of 7
29 (7) “Literary monograph” means a literary work that is published in one volume or a
30finite number of volumes;
31 (8) “Technological protection measures” means any technology that ensures the secure
32loaning and/or circulation by a library of electronic literary materials;
33 (9) “Borrower” means a person or organization, including another library, to whom the
34library loans electronic literary materials of any sort;
35 (10) “Virtually” means transmitted to receiving parties via the Internet in such a way that
36the transmission appears in front of the receiving parties on a computer, tablet, smart phone, or
37electronic device;
38 (11) “Loan” means create and transmit to a borrower a copy of electronic literary
39material and delete it at the end of the loan period;
40 (12) “Loan period” means the time between the transmission of electronic literary
41material to a borrower and the copies’ deletion, as determined by any individual library.
42
43 B. Contracts Between Libraries and Publishers
44 (a) Any contract offered by a publisher to a library for the purposes of licensing
45electronic literary materials to the public in this state is governed by Massachusetts law.
46 (b) A contract between a library and a publisher shall contain no provision that:
47 (1) Precludes, limits, or restricts the library from performing customary operational
48functions, including any provision that: 4 of 7
49 (A) Precludes, limits, or restricts the library from licensing electronic literary materials
50from publishers;
51 (B) Precludes, limits, or restricts the library’s ability to employ technological protection
52measures as is necessary to loan the electronic literary materials;
53 (C) Precludes, limits, or restricts the library's right to make non-public preservation
54copies of the electronic literary materials;
55 (D) Precludes, limits, or restricts the library’s right to loan electronic literary materials
56via interlibrary loan systems; or
57 (2) Precludes, limits, or restricts the library from performing customary lending
58functions, including any provision that:
59 (A) Precludes, limits, or restricts the library from loaning electronic literary materials to
60borrowers;
61 (B) Restricts the library’s right to determine loan periods for licensed electronic literary
62materials;
63 (C) Requires the library to acquire a license for any electronic literary material at a price
64greater than that charged to the public for the same item;
65 (D) Restricts the number of licenses for electronic literary materials that the library may
66acquire after the same item is made available to the public;
67 (E) Requires the library to pay a cost-per-circulation fee to loan electronic literary
68materials, unless substantially lower in aggregate than the cost of purchasing the item outright; 5 of 7
69 (F) Restricts the total number of times a library may loan any licensed electronic literary
70materials over the course of any license agreement, or restricts the duration of any license
71agreement; unless the publisher also offers a license agreement to libraries for perpetual public
72use without such restrictions; at a price which is considered reasonable and equitable as agreed to
73by both parties
74 (G) Restricts or limits the library’s ability to virtually recite text and display artwork of
75any materials to library patrons such that the materials would not have the same educational
76utility as when recited or displayed at a library facility;
77 (3) Restricts the library from disclosing any terms of its license agreements to other
78libraries.
79 (4) Requires, coerces, or enables the library to violate the law protecting the
80confidentiality of a patron’s library records found in Chapter 78, Section 7.
81 C. Remedies
82 (A) Unfair and Deceptive Practices
83 (1) Offers to license electronic literary materials that include a prohibited provision listed
84in Section 3 constitute unfair and deceptive practices within the meaning of Section 2 of Chapter
8593A, Regulation of Business Practices for Consumer Protection, and any remedy provided
86pursuant to Chapter 93A shall be available for the enforcement of this act.
87 (2) Actions for relief pursuant to this act may be brought by libraries, library officers, or
88borrowers. 6 of 7
89 (3) Parties shall be enjoined by the courts from enforcing license agreements that include
90a prohibited provision listed in Section 3.
91 (B) Unconscionability
92 (1) Contracts to license electronic literary materials that include prohibited provisions
93listed in Section 3 of this chapter are unconscionable within the meaning of Chapter 106, Section
942-302 in violation of Massachusetts public policy and are deemed unenforceable and void. Any
95waiver of the provisions of this title is contrary to public policy and shall be deemed
96unenforceable and void.
97 (C) Any publisher that violates this title shall be subject to an injunction and liable for a
98civil penalty of not more than two thousand five hundred dollars ($2,500) for each violation or
99seven thousand five hundred dollars ($7,500) for each intentional violation, which shall be
100imposed by the court.
101 D. Severability
102 The provisions of this act are severable. If any provision of this act or its application is
103held invalid, that invalidity shall not affect other provisions or applications that can be given
104effect without the invalid provision or application.
105 E. Existing Contracts
106 Nothing in this subsection affects existing contracts that are currently in force providing
107libraries with electronic literary products from vendors and aggregators.
108 F. Effective Date 7 of 7
109 This act shall take effect upon its enactment into law unless otherwise specified. The
110provisions of this act apply to transactions entered into and events occurring after such date.