AAP Asks Court to Permanently Ban Maryland Library’s eBook Law

Maryland’s library e-book law is coming to an end. In a filing this week, the Association of American Publishers asked federal judge Deborah L. Boardman to close the door on the law once and for all by converting her February preliminary injunction blocking the law into a permanent injunction.

“[Maryland] has provided no guarantee that Maryland law will ever be enforced. The state took no action to repeal the Maryland law. In addition, [the state] offers only a barrister’s argument for the proposition that the state “does not intend” to enforce Maryland law,” the AAP brief states. “Intentions can change. An injunction stops the state from enforcing Maryland law, period. »

In an April 26 order, Boardman asked Maryland attorneys to respond to the AAP filing by May 9.

The AAP’s response comes after Boardman in February issued a preliminary injunction barring enforcement of Maryland’s e-books law from libraries, saying the state’s law is in fact preempted by federal e-book law enforcement. copyright.

On April 11, Maryland attorneys told the court that the state would no longer defend the law. But in a final motion, Maryland attorneys asked the court to waive the permanent injunction, arguing that a declaratory judgment was sufficient. “The state’s conduct shows the injunction is not needed here,” Maryland attorneys told the court in an April 11 filing. “Because the state does not enforce Maryland law and has no intention of doing so, the threat identified by plaintiff will not materialize.”

But lawyers for the AAP told the court that a declaratory judgment was simply not enough to protect the publishers.

“A permanent injunction, as opposed to simply entering a declaratory judgment, is the necessary and appropriate next step in this case,” the AAP filing states. “The state acted contrary to law in enacting the Maryland statute, disregarding pre-emption issues that the publishing and authoring communities had brought to its attention. The state then “doubled down” on its defense of Maryland law in this proceeding, raising a host of invalid arguments about state authority and aggressively challenging the principles and operation of the nation’s federal copyright law At every turn, the state’s actions reflected an unwillingness to abide by the judgment of the United States Congress on copyright policy and state-federal boundaries under the Supremacy Clause of the Constitution of the United States.

First introduced in January 2021, Maryland’s e-book law required any publisher offering to license “an electronic literary product” to consumers in the state to also offer to license the content to public libraries” on reasonable terms”. The bill was passed unanimously by the Maryland General Assembly on March 10 and took effect on January 1, 2022.

The law came after a decade of tension in the digital library market, with libraries long complaining of high prices and unsustainable, unnegotiated restrictions. Specifically, however, the law emerged as a direct response to Macmillan’s (since dropped) 2019 embargo on top-list e-book titles, which prompted widespread calls for federal and state lawmakers to protect basic access to digital works in libraries.

The Association of American Publishers filed a lawsuit on Dec. 9, 2021, arguing that the Maryland law infringes the exclusive rights given to publishers and authors under copyright law. A week later, on December 16, AAP attorneys filed for a preliminary injunction blocking the law. Just days after a Feb. 7 hearing, Boardman enjoined the law.

Similar bills are currently still pending in half a dozen other states, though bills in at least three of those states (Missouri, Tennessee and Illinois) appear to be virtually dead. In late December, New York Governor Kathy Hochul vetoed the New York Library’s e-book bill.

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