In a paperless order issued on May 26, Judge Deborah Boardman asked lawyers for the state of Maryland and the Association of American Publishers to submit proposed language for a declaratory judgment to end the parties' dispute over the state's library e-book law. But in filing the proposed language, the parties dispute whether the request means the court is preparing to deny the AAP's bid for a permanent injunction.
"The Parties met and conferred to discuss the Order and agree that a declaratory judgment may be entered. The Parties disagree, however, in their view of whether a permanent injunction may still be granted," reads an AAP brief filed last week. "Plaintiff interpreted the Order to refer only, 'at a minimum,' to the Court’s determination that a declaratory judgment should be entered, but understood that the Court was still considering whether a permanent injunction is also necessary. Plaintiff still believes 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 “at a minimum” referred to the relief on which the parties could agree."
However the court ultimately rules, Maryland's library e-book law is a step closer to its end. In February, Boardman issued a preliminary injunction barring Maryland’s library e-book law from being enforced, holding that the state’s law is likely preempted by the federal Copyright Act. And in an April filing, the AAP asked federal judge Deborah L. Boardman to convert her preliminary injunction blocking the law into a permanent injunction.
Maryland attorneys, meanwhile, have argued that a permanent injunction is not necessary, telling the court that the state would no longer defend the law in court, and had no intention of invoking or enforcing the law.
While a permanent injunction would be a much stronger remedy, the brief language proposed by each party for a proposed declaratory judgment is similar in function, and, if issued, would effectively scuttle Maryland's library e-book law by declaring it to be preempted by the federal Copyright Act.
First introduced in January 2021, the Maryland 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 passed the Maryland General Assembly unanimously on March 10, and went into effect on January 1, 2022.
The AAP filed suit on December 9, 2021 arguing that the Maryland law infringed on the exclusive rights granted to publishers and authors under copyright, and on December 16, AAP attorneys moved for a preliminary injunction blocking the law. Just days after a February 7 hearing Boardman found in the AAP's favor.
Library e-book bills are currently still pending in half a dozen other states, with legislators in Rhode Island last month voting its bill out of committee and recommending passage.
