In a June 13 opinion and order, Judge Deborah L. Boardman declared Maryland's library e-book law "unconstitutional and unenforceable" all but ending a successful months-long legal effort by the Association of American Publishers to block the law.

"In its February 16, 2022 memorandum opinion, the Court determined that the Maryland Act likely conflicts with the Copyright Act in violation of the Supremacy Clause," Boardman's opinion reads. "Although neither AAP nor the State has moved for summary judgment on any claim, they agree a declaratory judgment may be entered... Therefore, for the reasons stated in the February 16, 2022 memorandum opinion, the Court finds that the Maryland Act conflicts with and is preempted by the Copyright Act. The Act 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'”

The final order in the case comes after Boardman issued a preliminary injunction blocking the law, and after Maryland state attorneys declined to appeal Boardman's February 16 decision, arguing only that a declaratory judgment was sufficient and a permanent injunction was not warranted in the case.

In her decision this week, Boardman denied the AAP's bid for a permanent injunction, agreeing with the state that a declaratory judgment rendering the law unenforceable sufficiently protected the AAP's interests.

“We thank Judge Deborah L. Boardman for delivering a clear decision that protects the exclusive rights that are the basis of the United States Copyright Act and the means by which authors and publishers make so many intellectual and economic contributions to society and the long-term public interest," AAP president and CEO Maria Pallante said in a statement.

First introduced in January 2021, the Maryland library 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.

In response, the AAP filed suit on December 9, 2021 arguing that the Maryland law was pre-empted by the federal Copyright Act. Just days after a February 7 hearing, Boardman agreed with the AAP and temporarily enjoined the law. Boardman's order this week now permanently renders the law enforceable.

Library advocates maintain the law was never an attempt to undermine copyright, however, but to regulate what they believed were unfair licenses. Specifically, the law emerged as a direct response to Macmillan's (since abandoned) 2019 embargo on frontlist e-book titles, which librarians insist was fundamentally inequitable. Furthermore, 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.

In her statement, Pallante said that Maryland had "enacted a shadow copyright law that would have forced authors and publishers to transmit literary works to public libraries within its borders according to regulated terms imposed by the state."

While the legal battle is over in Maryland, library advocates say the fight for equitable access to e-books in libraries will continue. A revised bill is said to be under discussion in Maryland, while lawmakers in other states are still considering their own library e-book bills. Among them, lawmakers in Rhode Island last month advanced the state's library e-book bill, SB2842, out of committee and to the floor for where it now waits for a full vote.

Like Maryland's now blocked library e-book law, Rhode Island's bill would also require publishers who offer e-book licenses to the general public to also offer to license those works to libraries and schools on "reasonable terms," but the measure also includes a provision that would make any licenses "that limits the rights of a library or school under the U.S. Copyright Act" unenforceable under Rhode Island state law.

In her statement, Pallante said the outcome in Maryland should discourage other state actions. “Today’s decisive ruling, combined with Governor Kathy Hochul’s December, 2021 veto of a nearly identical bill in New York on constitutional grounds, sends a two-fold message to other legislatures being similarly lobbied: there is nothing judicious about undermining authors or the viability of an independent publishing industry.”

Meanwhile, one outstanding issue appears to remain in the Maryland case: A footnote suggests the AAP is now seeking to recover its costs and attorneys fees. "The only outstanding issue is AAP’s request for an award of reasonable costs and attorneys’ fees," the footnote states, adding that the AAP "has advised the Court that the parties intend to brief whether AAP is entitled to fees and costs under those statutes."