In a rebuke to Maryland state legislators, a federal judge has granted the Association of American Publishers’ motion for a preliminary injunction, blocking Maryland officials from enforcing the state's new library e-book law.
“It is clear the Maryland Act likely stands as an obstacle to the accomplishment of the purposes and objectives of the Copyright Act,” concluded federal judge Deborah L. Boardman, in a 28-page opinion. Although the judge noted that the Maryland Act only requires an ‘offer’ to license and does not ‘explicitly require’ publishers to grant licenses to libraries, “this is a distinction without a difference,” Boardman concluded (lifting directly from the AAP’s brief), holding that the threat of civil and criminal penalties for non-compliance amounts to “a forced transaction” that “effectively strips publishers of their exclusive right to distribute.”
In enjoining the law, Boardman found that the AAP cleared all four factors necessary to grant a preliminary injunction—a likelihood of success on the merits; irreparable harm; winning the balance of equities, and that the injunction was in the public interest. But while the court entertained—and largely accepted the AAP’s arguments on each factor—the court’s decision ultimately came down to one simple finding (which the AAP also argued): the Maryland law is fatally flawed because it is preempted by federal copyright law.
“While the State may view the Act as necessary to correct an imbalance and expand library access to digital literary products, the salutary legislative purpose plays no role in the conflict preemption analysis,” Boardman held. “The State’s characterization of the Act as a regulation of unfair trade practices notwithstanding, the Act frustrates the objectives and purposes of the Copyright Act.”
In a statement, AAP officials praised the court's "decisive" action.
“We are extremely pleased with the court’s swift opinion and strong analysis in granting a preliminary injunction today." said AAP president and CEO Maria Pallante in a statement. "As the court concluded, this outcome is very much in the public interest, and it ‘is only through the protection of copyright that books and other creative works may be generated and distributed at all.'"
In a statement, ALA officials told PW that the library community's efforts toward achieving equitable access to digital content would continue.
“ALA unequivocally supports the Maryland law and stands by the Attorney General’s defense of Maryland libraries’ right to buy licenses for 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 unfairness in the marketplace and used its legal authority to correct it. ALA sees the unfairness to our public libraries, which have paid for e-book licenses on unreasonable terms for far too long. Most importantly, libraries see the unfairness for Maryland residents, who rely on them for access to e-books."
"Regardless of the legal technicalities, the proceedings thus far have established that there is a definite injustice in library access to digital books," added Alan Inouye, ALA Senior Director, Public Policy & Government Relations. "ALA looks forward to the next steps in this proceeding as well as efforts elsewhere towards the goal of equitable library access to digital books and fair treatment for all stakeholders in the digital book ecosystem."
First introduced in January 2021, the 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 enable library users to have access. It passed the Maryland General Assembly unanimously on March 10, and went into effect on January 1, 2022. The law emerged after a decade of tension in the digital library market, with libraries long complaining of unsustainable, non-negotiated high prices and restrictions. More specifically, the law emerged as a direct response to Macmillan's (since abandoned) 2019 embargo on frontlist e-book titles, which prompted numerous appeals to both federal and state legislators. Similar bills are currently pending in at least five other states.
The AAP, however, filed suit on December 9 of last year arguing that the Maryland law infringes on the exclusive rights granted to publishers and authors under copyright. A week later, on December 16 AAP attorneys moved for a preliminary injunction blocking the law.
In defending the law, Maryland state attorneys countered that the law is not about copyright protection but about "the unfair and discriminatory trade practices of publishers at the expense of public libraries.”
Boardman’s speedy 28-page decision on the AAP's motion comes just days after a February 7 hearing at which she appeared clearly skeptical of the Maryland law. While the law is now enjoined, 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 sit at the intersection of public service and the private marketplace in an evolving society that is increasingly reliant on digital media," the judge concluded. "Striking the balance between the critical functions of libraries and the importance of preserving the exclusive rights of copyright holders, however, is squarely in the province of Congress and not this Court or a state legislature."
Update: Maryland Attorney General Brian E. Frosh has released the following statement: Our office is currently reviewing the decision to determine next steps. We think publishers should not be able to unfairly take advantage of Maryland public libraries. We will continue to pursue fair treatment for Maryland public libraries.
