The American Library Association (ALA) has delivered a written report to the House Judiciary Committee telling lawmakers that “unfair behavior by digital market actors," including Amazon and some major publishers, is "doing concrete harm to libraries.”

The report, delivered last week to a House antitrust subcommittee investigating competition in the digital market, comes as lawmakers are taking note of the growing backlash to Big Five publisher Macmillan’s decision to impose a two-month embargo on new release e-books in public libraries. In a September 13 letter to ALA executive director Mary Ghikas, the House Judiciary Committee asked ALA to respond to a set of questions in connection with its ongoing investigation, an invitation that came just days after an ALA press event at the Nashville Public Library kicked off a public awareness campaign calling attention to issues in the library e-book market. As of this writing, an ALA online petition opposing Macmillan's planned embargo, launched at that press event, is approaching 150,000 signatures.

Under Macmillan's new policy, which is scheduled to go into effect on November 1, public libraries are allowed to license a singe discounted, perpetual access e-book for the first eight weeks after a book's publication. After eight weeks, libraries can purchase multiple two-year licenses at the regular price (roughly $60 for new works). Librarians, however, say that not being allowed to license multiple copies upon publication unfairly punishes digital readers, and will only serve to frustrate users and will hurt the ability of the library to serve their community, especially if other publishers follow suit.

“Libraries are prepared to pay a fair price for fair services; in fact, over the past ten years, libraries have spent over $40 billion acquiring content,” the ALA report reads. “But abuse of their market position by dominant actors in digital markets is impeding essential library activities that are necessary to ensure that all Americans have access to information, both today and for posterity. If these abuses go unchecked, America’s competitiveness and our cultural heritage as a nation are at risk.”

The ALA comments break down what it sees as potentially “anticompetitive” behavior in the digital realm into two sectors—public and school libraries, and academic and research libraries. And no surprise, the two issues topping the list of ALA’s concerns: Amazon’s exclusive digital content, which is not available to libraries; and restrictions by the major publishers in the library e-book market.

“The worst obstacle for libraries are marketplace bans: refusal to sell services at any price,” ALA officials notes, pointing to Amazon Publishing. “The e-book titles from Amazon Publishing are not available to libraries for lending at any price or any terms. By contrast, consumers may purchase all of these titles directly from Amazon. This is a particularly pernicious new form of the digital divide; Amazon Publishing books are available only to people who can afford to buy them, without the library alternative previously available to generations of Americans.”

“ If these abuses go unchecked, America’s competitiveness and our cultural heritage as a nation are at risk. ”

Amazon’s growing power has been a simmering cause of concern and a topic of conversation at ALA conferences for years now. But Amazon’s push for exclusive digital content has been ramping up in recent years, increasing concerns, particularly in the audio market, where Amazon-owned Audible has been signing exclusive deals with bestselling authors and publishers. In addition, some in the library market are concerned that Amazon is selectively using its data to pressure publishers into further restricting library access to digital content.

A “related problem,” ALA asserts—though it is surely the primary problem libraries face on a day-to-day basis—is the increasingly restrictive, and costly market for e-books from the major publishers. This includes the “delayed release” of e-books to the library market, the ALA report states, pointing to Macmillan’s two-month embargo on new release e-book titles, scheduled to take effect on November 1, and “abusive” pricing for library e-books, where titles can often run more than four times the consumer price for two year licenses.

“Denying or delaying new content to libraries certainly is a market failure,” ALA states. “It also prevents libraries from accomplishing their democratizing mission of providing equal access to information to American citizens.”

The report also addresses library access to streaming content from providers like NetFlix and Hulu, the high cost of textbooks and learning materials, and the academic journal market.

“ALA does not take this issue lightly,” said Alan Inouye, ALA senior director of public policy and government relations, in a release. “When Amazon, the world’s fifth largest publisher of e-books, refuses to sell to libraries, or when a Big five publisher like Macmillan places an eight-week embargo on e-book sales to America’s libraries, we believe it is time to take legislative action.”

The inquiry comes after the House Judiciary Committee launched its investigation into competition in the digital market on June 3, 2019, with Chairman Jerrold Nadler (D-NY) citing "growing evidence that a handful of gatekeepers have come to capture control over key arteries of online commerce, content, and communications."

While it is unclear what the next steps will be, ALA officials say they are prepared to turn up the pressure, and stay engaged with lawmakers. Meanwhile, PW has learned that similar investigations are underway in some state legislatures as well.

“Beginning next week, ALA and our members in targeted congressional districts will engage legislators on the substance of our report," Inouye stated. "When librarians and community leaders tell Antitrust Subcommittee members how unfair digital market practices impact their constituents, Congress will listen.”