Maryland state officials told PW that the Association of American Publishers could recover as much as $300,000 in court costs and legal fees from the state after the AAP successfully challenged Maryland’s library e-book law in court. The estimated figure was quoted to PW by Maryland officials and comes after Judge Deborah L. Boardman set a briefing schedule for the parties in an order last week. UPDATE: The AAP will not see seek to recoup costs and legal fees it incurred in the case, it has said in a new filing.
Under Boardman’s June 23 order, if the parties do not “resolve AAP’s request” for fees and costs in the coming days, AAP’s brief in support of its request for costs and attorney fees is due August 22. The state’s opposition is due September 21; the AAP’s reply is then due on October 6, 2022.
The request comes after Boardman in a June 13 opinion and order declared Maryland's library e-book law "unconstitutional and unenforceable," ending a months-long legal effort by the AAP to block the law.
First introduced in January 2021, the Maryland library e-book law would have 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 passed the Maryland General Assembly unanimously on March 10, and went into effect on January 1, 2022, though it was never invoked.
The AAP could face a high bar to winning an award for attorney fees. In a 2016 ruling, the Supreme Court issued new guidance on the awarding of legal fees in copyright cases, holding that such fee awards should not be awarded to the prevailing party simply as a matter of course, and that the “reasonableness” of a losing party’s case should carry “substantial weight” in determining whether to award fees.
Notably, the AAP used this guidance to reverse a judge's decision ordering them to pay $3.2 million in legal fees, after being declared the losing party in its 11-year copyright battle over e-reserves with Georgia State University.
Library advocates maintain the Maryland e-book law did not intend to infringe upon copyright law but to regulate what the state believes are unfair licenses. Specifically, the law emerged as a direct response to Macmillan's (since abandoned) 2019 embargo on new release e-book titles.
The AAP, meanwhile has argued that the library e-book market is working well and that the Maryland law was undertaken as "an end run by certain groups that want to divert copyright policy from the federal government to state legislatures."
Clarification: The $300K figure quoted above to PW is an estimate put forth by Maryland officials and not a number delivered by AAP attorneys. While our initial story did not attribute the figure to AAP, which has confirmed only its intent to seek legal fees and costs, we have revised the story and headline to clarify that the potential figure is not a specific request from AAP. A statement to PW from AAP General Counsel Terry Hart is appended below:
PW’s June 30th story by Andrew Albanese about AAP’s fee request in AAP v. Frosh was news to us and it's incredibly disappointing that PW did not contact AAP, the focus of its story, beforehand. Let’s remember: Publishers did not invite this litigation and only pursued it after state legislators accepted the misguided arguments of bill advocates and dismissed the constitutional and legal concerns that have now been validated by a federal court. AAP bore the costs of defending authors and publishers against state legislation that subverted the copyright framework that serves as the backbone of American creativity and ingenuity.
