State-Mandated Digital Book Licenses Offend the Constitution and Undermine Free-Market Principles

Alden Abbott —  14 February 2023

Various states recently have enacted legislation that requires authors, publishers, and other copyright holders to license to lending libraries digital texts, including e-books and audio books. These laws violate the Constitution’s conferral on Congress of the exclusive authority to set national copyright law. Furthermore, as a policy matter, they offend free-market principles.

The laws interfere with the right of copyright holders to set the price for the fruit of their intellectual labor. The laws lower incentives for the production of new creative digital works in the future, thereby reducing consumers’ and producers’ surplus. Furthermore, the claim that “unfair” pricing prevents libraries from stocking “sufficient” numbers of e-books to satisfy public demand is belied by the reality that libraries have substantially grown their digital collections in recent years.

Finally, proponents of legislation ignore the fact that libraries actually pay far less than consumers do when they purchase an e-book license for personal use.

A more detailed exploration of this important topic is found in the Federalist Society Regulatory Transparency Project’s just-released paper, “State Mandates for Digital Book Licenses to Libraries are Unconstitutional and Undermine the Free Market.” Read and enjoy!

Alden Abbott


Alden Abbott is a a senior research fellow at the Mercatus Center, focusing on antitrust issues. He previously served as the Federal Trade Commission’s General Counsel from 2018 to early 2021.