Days after filing suit to nullify Maryland’s library e-book law, the Association of American Publishers this week filed a subsequent motion for a preliminary injunction that seeks to block the law from going into effect on January 1, 2022. In a 35-page supporting memorandum, filed on December 16, the AAP argues that the injunction is warranted because AAP is likely to prevail in the case, and because allowing the law to take effect would irreparably harm AAP members.
The AAP’s December 16 supporting brief largely repeats the claims laid out in its December 9 initial complaint—the main argument being that Maryland’s library e-book law is pre-empted by federal copyright law, and amounts to a compulsory license that will “force” publishers and authors “to disseminate hundreds of thousands of literary works to public libraries on pricing and other terms to be dictated and enforced by the State of Maryland.” But the filing also addresses the four-factor test required to merit a preliminary injunction.
Factor one requires that a moving party show it is likely to succeed on the merits of its case. Here, the AAP reiterates its claim that the Maryland law is clearly pre-empted by the federal Copyright Act, among other Constitutional issues.
Factor two requires the moving party to show they will suffer “irreparable harm” without an injunction. Here the AAP argues that the alleged “constitutional violation” within the Maryland law is sufficient on its own to demonstrate irreparable harm. But the filing goes on to assert that the Maryland law will “irreparably” and “immediately” harm publishers by forcing them to enter into “licensing agreements on involuntary and uneconomic terms mandated by the State of Maryland.”
Factor three focuses on the “balance of equities.” Here the AAP argues that blocking the law while the case is being decided will not impact the state—libraries will just continue to operate under the status quo, the brief states, while AAP members could face potential action if the law is invoked, thus "the balance of equities clearly tips in favor of an injunction.”
And factor four requires that any injunction be in the public interest. Here, the AAP dismisses the idea that Maryland libraries are addressing any kind of market failure with the law. The goal of providing more equitable access to e-books may be “superficially appealing,” the filing states. But in fact the “public interest" is best served “by enjoining the enforcement of invalid provisions of state law,” the AAP argues.
"Proponents of the Maryland Act are mistaken in arguing that replacing the exclusive rights of publishers and authors with a state-imposed compulsory licensing and pricing scheme will serve the public interest simply because it will provide members of the public with greater, immediate access to more literary works,” the filing states.
As of press time, the state of Maryland has yet to respond to the AAP’s initial complaint.
Maryland became the first state to enact library e-book legislation, with its bill passing the Maryland General Assembly unanimously on March 10, and becoming law on June 1. The law is set to take effect in January 2022.
New York has since followed suit, passing a similar bill in June. At press time, however, the bill still has not yet been sent to governor Kathy Hochul for signature or veto, though state law requires the bill be presented by the end of the calendar year.
The bills emerged as a direct response to Macmillan’s controversial (and since abandoned) 2019 embargo on frontlist e-books in libraries, which led library advocates to take their concerns to state and federal legislators.