Court blocks Maryland library e-books law

In a rebuke to Maryland state lawmakers, a federal judge has granted the Association of American Publishers’ motion for a preliminary injunction, preventing Maryland officials from enforcing the state’s new e-book law. .

“It is clear that Maryland law is likely an impediment to achieving the goals and objectives of copyright law,” Federal Judge Deborah L. Boardman concluded in a 28-page opinion. Although the judge noted that Maryland law only requires an “offer” of license and does not “explicitly” require publishers to grant licenses to libraries, “this is a distinction without difference “, concluded Boardman (drawing directly from the AAP brief), finding that the threat of civil and criminal penalties for non-compliance amounts to “a forced transaction” that “effectively deprives publishers of their exclusive right of distribution “.

In enjoining the law, Boardman concluded that the AAP had cleared the four factors necessary to grant a preliminary injunction – a likelihood of success on the merits; irreparable harm; winning the remaining shares and that the injunction was in the public interest. But while the court accepted – and largely accepted the AAP’s arguments on each factor – the court’s decision ultimately boiled down to a simple conclusion (which the AAP also argued): Maryland law is fatally flawed because it is preempted by federal copyright law.

“Although the state may view the law as necessary to correct an imbalance and expand library access to digital literary products, the salutary legislative purpose plays no role in the conflict prevention analysis,” said Boardman. “Despite the state’s characterization of the law as a regulation of unfair trade practices, the law defeats the purposes and purposes of copyright law.”

In a statement, AAP officials hailed the court’s “decisive” action.

“We are extremely pleased with the court’s prompt notice and robust analysis that led to the granting of a preliminary injunction today,” AAP President and CEO Maria Pallante said in a statement. a statement. “As the court found, this outcome is entirely in the public interest, and it “It is only through copyright protection that books and other creative works can be generated and distributed .””

In a statement, ALA officials told PW that efforts by the library community to achieve equitable access to digital content will continue.

“ALA unequivocally supports Maryland law and supports the Attorney General’s defense of the right of Maryland libraries to license digital content on reasonable terms,” ​​said ALA President Patty. Wong, in a statement. “The Maryland Legislature, which voted unanimously in favor of the legislation, rightly sees the injustice of the marketplace and has used its legal power to correct it. The ALA sees the injustice to our public libraries, who have been paying for e-book licenses on unreasonable terms for too long. More importantly, libraries see the injustice for the residents of Maryland, who rely on them for access to e-books.”

“Legal technicalities notwithstanding, the proceedings thus far have established that there is definite injustice in library access to digital books,” added Alan Inouye, ALA’s Senior Director, Public Policy and Government Relations. “ALA looks forward to the next steps in this process as well as efforts elsewhere to achieve the goal of equitable library access to digital books and fair treatment for all stakeholders in the digital library ecosystem. digital book.”

It is clear that Maryland law is likely an impediment to achieving the goals and objectives of copyright law…

First introduced in January 2021, Maryland law requires 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. ” that would allow library users to access it. It was passed unanimously by the Maryland General Assembly on March 10 and took effect on January 1, 2022. The law emerged after a decade of tension in the digital library market, with libraries long complaining high prices and unsustainable and non-negotiated restrictions. Specifically, the law emerged as a direct response to Macmillan’s (since dropped) 2019 embargo on frontline e-book titles, which prompted widespread appeals to federal and state lawmakers. Similar bills are currently pending in at least five other states.

The AAP, however, filed suit on Dec. 9 last year arguing that Maryland law violates the exclusive rights given to publishers and authors under copyright law. A week later, on December 16, AAP lawyers filed for a preliminary injunction blocking the law.

In defending the law, Maryland state prosecutors countered that the law was not about copyright protection, but “unfair and discriminatory business practices by publishers at the expense of public libraries”.

Boardman’s swift 28-page decision on the AAP’s motion comes just days after a Feb. 7 hearing in which she appeared clearly skeptical of Maryland’s law. While the law is now in effect, the legal battle continues and Maryland state officials have asked the court to dismiss the AAP’s case, which is still pending. Boardman’s opinion in enjoining the law, however, reads like a thorough vindication of the AAP’s copyright argument.

“Libraries face unique challenges as they stand at the intersection of public service and the private marketplace in a changing society that is increasingly dependent on digital media,” Judge concluded. “However, balancing the essential functions of libraries with the importance of preserving the exclusive rights of copyright owners is squarely a matter for Congress and not for this Court or any state legislature.”

Update: Maryland Attorney General Brian E. Frosh released the following statement: Our office is currently reviewing the decision to determine next steps. We believe that publishers should not be able to unfairly take advantage of Maryland’s public libraries. We will continue to seek fair treatment for public libraries in Maryland.

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