During an online seminar this week, U.S. Register of Copyrights Shira Perlmutter revealed that some in Congress have asked the Copyright Office to weigh in on the constitutionality of Maryland’s new library e-book law. Perlmutter did not reveal what stage any potential review may be at, however, and officials at the Copyright Office declined to comment further.
“All we can say is that the Office continues to work on responding to requests we have received from senators,” a spokesperson for the Copyright Office told PW.
PW knows of one legislator that has raised concerns: North Carolina Senator Thom Tillis, Ranking Member of the Senate Judiciary Committee’s Subcommittee on Intellectual Property.
In a May 26 letter, Tillis echoed concerns expressed by the Association of American Publishers in its written testimony to Maryland legislators on May 24—including a contention that Maryland’s library e-book law is unconstitutional because it “encroaches on the exclusive domain” of federal copyright law.
When it takes effect in January, 2022, the Maryland law (known as SB432) will require 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.
Jonathan Band, a legal advisor to the library community who has consulted on the Maryland law insists it is constitutional, not preempted by federal copyright law, and is narrowly designed to "prevent unreasonable discrimination" against public libraries. "The [Maryland law does] not force publishers to transfer any of their exclusive rights," Band insists, "and the publishers’ rights remain undiminished."
In his letter, Tillis asked Perlmutter, acting in her capacity as “the expert adviser to congress on copyright matters,” to weigh in and "clarify if federal preemption applies."
The bill passed the Maryland General Assembly unanimously in March, and became law on June 1. Meanwhile, laws like the one in Maryland are gaining momentum in other state legislatures. In June, New York passed a similar law that is now awaiting the governor's signature or veto. At least half a dozen states are reported to have begun exploring similar legislation.
Tillis's request for guidance is not uncommon. One of the duties of the Register of Copyrights is to advise Congress on matters of copyright and such opinions are routinely sought by legislators on a range of matters. But whatever opinion the Copyright Office weighs in with, Band told PW, it is unlikely to impact the law in Maryland.
"The Copyright Office's opinion on a state law will have no influence on how a court interprets a state law," Band told PW. "Indeed, the Supreme Court recently indicated that courts need not defer to the Copyright Office even when it is interpreting the Copyright Act."
An adverse opinion from the Copyright Office, however, could chill other states from taking up similar legislation—something Tillis himself acknowledges in his letter, concluding that an opinion from the Copyright Office would "provide helpful direction to states so they may avoid proposing or enacting legislation that is preempted by the Copyright Act."