In Final Order, Court Declares Maryland Library E-Books Act Unconstitutional

In a June 13 notice and order, Judge Deborah L. Boardman declared the Maryland Libraries E-Book Act “unconstitutional and unenforceable,” ending a months-long successful legal effort by the Association of American Publishers to block the law.

“In its opinion of the memorandum dated February 16, 2022, the Court determined that Maryland law likely conflicts with copyright law in violation of the Supremacy Clause,” reads the opinion of Boardman. “While neither the AAP nor the State has sought summary judgment on any claim, they agree that declaratory judgment may be entered…Therefore, for the reasons set forth in the memorandum notice of 16 February 2022, the Court finds that Maryland law conflicts with and is preempted by copyright law.The law “constitutes an obstacle to the accomplishment and execution of the purposes and purposes of Congress” .

The final order in the case comes after Boardman issued a preliminary injunction blocking the law, and after Maryland state prosecutors declined to appeal Boardman’s Feb. 16 decision, arguing only that a declaratory judgment was sufficient and that a permanent injunction was not warranted in the case.

In its decision this week, Boardman denied the AAP’s request for a permanent injunction, agreeing with the state that a declaratory relief rendering the law unenforceable sufficiently protected the interests of the AAP.

“We thank Judge Deborah L. Boardman for issuing a clear ruling that protects the exclusive rights that underlie U.S. copyright law and the means by which authors and publishers make so many contributions intellectual and economic resources to society and the long-term public interest,” AAP President and CEO Maria Pallante said in a statement.

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

In response, the AAP filed suit on December 9, 2021 arguing that the Maryland law was preempted by federal copyright law. Just days after a Feb. 7 hearing, Boardman agreed with the AAP and temporarily banned the law. Boardman’s order this week now makes the law permanently enforceable.

Library advocates argue that the law was never an attempt to undermine copyright, but to regulate what they believed to be unfair licensing. Specifically, the law emerged as a direct response to Macmillan’s (since dropped) 2019 embargo on frontline e-book titles, which librarians said was fundamentally unfair. In addition, the law came after a decade of tension in the digital library market, with libraries long complaining of high prices and unsustainable, unnegotiated restrictions.

In his statement, Pallante said Maryland had “enacted a phantom copyright law that would have required authors and publishers to transmit literary works to public libraries within its borders under regulated conditions imposed by the state”.

While the legal battle is over in Maryland, library advocates say the fight for fair access to eBooks in libraries will continue. A revised bill is reportedly being discussed in Maryland, while lawmakers in other states are still considering their own library e-book bills. Among them, Rhode Island lawmakers last month moved the state library’s e-book bill, SB2842, out of committee and up the floor for which it now awaits a full vote.

Similar to the now-blocked law on e-books in Maryland libraries, the Rhode Island bill would also require publishers who offer to license e-books to the general public to also offer to license those works under license to libraries and schools on “reasonable terms,” ​​but the measure also includes a provision that would make any license “that limits a library’s or school’s rights under U.S. copyright law unenforceable under Rhode Island state law.

In his statement, Pallante said the outcome in Maryland should discourage further state action. “Today’s landmark decision, combined with Governor Kathy Hochul’s December 2021 veto of an almost identical bill in New York on constitutional grounds, sends a double message to other legislatures under similar pressure. : There is no sense in undermining authors or the viability of an independent publishing industry.

Meanwhile, one outstanding issue appears to remain in the Maryland case: A footnote suggests the AAP is now seeking to recover its costs and attorneys’ fees. “The only outstanding issue is the AAP’s request for an award of costs and reasonable attorneys’ fees,” the footnote states, adding that the AAP “has informed the Court that the parties intend to advise whether the AAP is entitled to any fees and expenses under these Bylaws.”


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