Can a Maine town's public library charge patrons a rental fee to borrow videocassettes, the way a video store does?

Plain-English summary

State Librarian Gary Nichols told AG James E. Tierney that a number of Maine town public libraries had begun charging rental fees for videocassettes, much like a commercial video rental store. He asked whether state law allowed the practice. Tierney's answer was no. The statute that authorized towns to establish public libraries, 27 M.R.S.A. § 101 et seq., was emphatic: it permitted only "free" public libraries for the "free use" of town inhabitants. The word "free" appears throughout the chapter. No Maine public library had ever charged for the use of books or other printed material, and Tierney saw no statutory basis for treating videocassettes differently. A town was not required to offer videocassettes at all, but if it chose to, it had to do so on the same free terms as books.

The opinion drew two narrow exceptions that left municipal libraries some operational flexibility. First, libraries could charge for services where the patron walked away with a new piece of property, such as copying documents or printing computer output. Second, libraries could impose damage charges and overdue fines on books, and the same applied to videocassettes. The line was between the act of borrowing (which had to be free) and incidental services or accountability for misuse (which could carry charges).

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was videocassette lending common in 1990 public libraries?

It was a relatively new offering. Tierney's opinion notes that the underlying statute had been in place largely since 1954, "at that time, videocassettes were not available as a medium to disseminate information and entertainment." The fact that the medium did not exist when the statute was written did not, in the AG's view, weaken the statute's plain "free use" guarantee for any media the library chose to offer.

What kinds of fees could a public library still charge under this opinion?

Three categories. Charges for services that produced a copy the patron kept (photocopies of documents, computer printouts). Fines for damage to borrowed materials. Fines for overdue returns. The opinion expressly preserved these as outside the "free use" requirement.

Did this opinion address school libraries, county libraries, or private libraries?

No. The opinion addressed only town public libraries established under 27 M.R.S.A. § 101 et seq. It did not reach private association libraries, school libraries, or county libraries.

Was this a binding ruling or just guidance?

It was an AG opinion, which carries persuasive but not binding authority on Maine courts. The State Librarian could rely on it to push back when a town library proposed videocassette rental fees, but ultimate enforcement would have required either court litigation or legislative action.

Background and statutory framework

Title 27, § 101 et seq. of the Maine Revised Statutes sets out the authority and conditions under which a Maine town may establish a public library. As the opinion stresses, the chapter authorizes only a "free" public library for the "free use" of a town's inhabitants, and the statute is "replete with references" to that term. Tierney noted the statutory language was old, most of it in place since 1954, predating videocassettes. The repeated invocation of "free" is what drove his reading: a town could choose what materials to offer, but it could not condition borrowing on a fee.

The opinion stands as one of the early Maine AG analyses of how a "free use" statute written in the era of print materials applies to newer media. The logic, that the medium follows the lending rule rather than the rule following the medium, would later inform similar questions about audio recordings, software, and (eventually) digital downloads, though those later questions are not addressed here.

Citations

• 27 M.R.S.A. § 101 et seq. (1990) (authority for towns to establish free public libraries for the free use of their inhabitants)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1990/ag_19900321.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

90-4

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

March 21, 1990

Gary Nichols
State Librarian
State House Station #64
Augusta, Maine 04333

Dear Mr. Nichols:

In the context of several discussions we have had recently, you have mentioned that a number of town public libraries in Maine require library patrons to pay a rental fee in order to borrow videocassette tapes. You have asked whether such a practice is permissible under state law. For reasons which are discussed below, the answer to your question is that the practice of charging a rental fee as a precondition for borrowing a videocassette from a public library is not permitted under Maine law.

27 M.R.S.A. § 101 et seq. contains the authority and conditions pursuant to which a town may establish a public library for the use of its inhabitants. Specifically, authority is granted to a town to establish a "free" public library for the "free use" of its inhabitants. Even the most casual reading of this very brief statute reveals that the legislative authority is limited to the creation of a free public library intended for the free use of town residents. The statute is replete with references to "free" public libraries" or "free use of a library". The conclusion that the Legislature intended that the libraries created by towns make lending services available without direct charge to the individuals of the town is inescapable. This is generally understood and accepted by public libraries throughout the State and it is my understanding that none charges a rental fee for the use of books or other printed material. There is no basis in the law to distinguish books and other printed material on the one hand and videocassettes on the other. Although there is nothing in the law that requires a town library to make videocassettes available to its citizens, in the event that a library chooses to do so, videocassettes must be available freely, on the same basis as books and other printed materials.

I should note, in passing, that the statutory language of 27 M.R.S.A. § 101 et seq. is old language, most of it in place at least since 1954 with only minor amendments. Obviously, at that time, videocassettes were not available as a medium to disseminate information and entertainment. Books were available and, according to 27 M.R.S.A. § 101, were to be made available to a town's inhabitants without charge. The fact that information and entertainment are now available as a medium not in existence at the time the statute in question was enacted does not undercut the statutory guarantee of "free public libraries" or "free use" of a public library.

Additionally, I should also point out that the free public library guarantee does not prohibit a public library from charging for certain services it provides, such as copying documents or providing computer printouts. The distinction is clear. One borrows a book or videocassette; if one makes a copy of a document, the copy becomes the property of the patron. Furthermore, town libraries may operate under regulations which assess charges for damage or fines for overdue books. The same kinds conditions may be attached to the use of videocassettes without running afoul of the statutory "free use" guarantee.

In conclusion, 27 M.R.S.A. § 101 et seq., the statute which provides authorization for towns to establish public libraries, requires that those libraries be free public libraries available for the free use of all the inhabitants of the town. Therefore, the practice of charging a rental fee as a precondition for borrowing a videocassette is not permitted under Maine law.

I hope this advice is useful to you. Please feel free to contact me if you have any further questions about this matter.

Very truly yours,
JAMES E. TIERNEY
Attorney General

JET/dab