Court Seeks Proposed Declaratory Judgment in Maryland e-Book Case

In a paperless order issued May 26, Judge Deborah Boardman asked attorneys for the State of Maryland and the Association of American Publishers to submit draft language for declaratory judgment to end the parties’ dispute. on the State Library Electronic Book Act. But in filing the proposed wording, the parties dispute whether the request means the court is preparing to reject the AAP’s bid for a permanent injunction.

“The parties have met and conferred to discuss the order and agree that a declaratory judgment can be entered. The parties, however, disagree on whether a permanent injunction can still be granted” , reads an AAP brief filed last week. “The plaintiff interpreted the order as referring only, ‘at a minimum’, to the Court’s decision that a declaratory relief should be entered, but understood that the Court was still considering whether a permanent injunction was also necessary. The plaintiff still believes that a permanent injunction is necessary and appropriate here. The state interpreted the order to mean that a permanent injunction will not be granted, and that “minimum” referred to the relief upon which the parties could get along.”

Regardless of the court’s final decision, Maryland’s library e-book law is one step closer to its end. In February, Boardman issued a preliminary injunction barring enforcement of the e-book law from Maryland libraries, saying the state law is likely preempted by federal copyright law. And in a filing in April, the AAP asked federal judge Deborah L. Boardman to convert her preliminary injunction blocking the law to a permanent injunction.

Maryland attorneys, meanwhile, argued that a permanent injunction was unnecessary, telling the court that the state would no longer defend the law in court and had no intention of invoking or to apply the law.

While a permanent injunction would be a much stronger remedy, the brief wording proposed by each party for a proposed declaratory judgment serves a similar function and, if issued, would effectively scuttle Maryland’s library e-book law by stating that it would be preempted by the Federal Copyright Act.

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.

AAP filed a lawsuit on December 9, 2021, arguing that Maryland law violated the exclusive rights granted to publishers and authors under copyright law, and on December 16, AAP’s attorneys requested a preliminary injunction blocking the law. Just days after a Feb. 7 hearing, Boardman came out in favor of the AAP.

Library e-book bills are currently still pending in half a dozen other states, with Rhode Island lawmakers last month voting their bill out of committee and recommending passage.

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