In a January 28 court filing, lawyers for the Association of American publishers doubled down on their claim that Maryland’s library e-book law is clearly preempted by the federal Copyright Act, and said supporters of the law are seeking to “unravel decades of federal legislation and jurisprudence that delineate the contours of copyright law.”

In their 37-page reply filing, AAP lawyers asked the court to reject Maryland’s recently filed motion to dismiss the AAP’s case, and to grant the AAP’s motion for a preliminary injunction blocking the law.

“Maryland makes clear that it intended both to interfere with the statutory provisions of the United States Copyright Act and to challenge the authority of the United States Congress to weigh and determine questions of copyright policy in the digital environment,” the AAP brief states, going on to claim that despite Maryland’s characterization of its library e-book law as a consumer protection statute, the measure amounts to “a state mandated licensing scheme” that conflicts with federal copyright law.

“Contrary to Maryland’s claim, when a state law purports to restrain unfair trade practices, the preemption analysis depends on what the law does,” AAP lawyers argue. “Here, the Maryland Act restricts exclusive rights that are reserved for copyright owners to exercise under federal copyright law."

The AAP filing comes ahead of a scheduled February 7 court hearing.

First introduced in January 2021, the Maryland library e-book law passed the Maryland General Assembly unanimously on March 10 and went into effect on January 1. It requires that publishers that offer to license “digital literary works” to consumers in the state must also offer to license the works to public libraries on “reasonable” terms.

The AAP lobbied unsuccessfully against the law last spring, and ultimately filed suit in federal court to block the measure last December, just weeks before it was set to take effect. The AAP and its allies did successfully persuade New York governor Kathy Hochul to veto her state's library e-book law late last month.

Specifically, the AAP's December 9 complaint argues that the Maryland law is preempted by the Copyright Act because it "takes away publishers’ rights to decide when, how, to whom, and in what formats they will distribute their works, and whether to decline to distribute their works altogether." Furthermore, AAP argues there is no “extra element” that "qualitatively" distinguishes the state law from a copyright infringement claim, the key legal test for preemption.

In their January 14 answer, Maryland attorneys accused the AAP of mischaracterizing the Maryland law and moved to have the case dismissed.

Maryland attorneys argue that publishers “continue to enjoy complete control over the rights granted by the Copyright Act,” and insist that the law does not compel a license, only a reasonable “offer to license" and only when a work is also available to consumers. No publisher, the state insists, will be "forced to enter into involuntary and uneconomic licensing agreements.”

Furthermore, Maryland attorneys argue there is an “extra element” that augurs against federal preemption—the state’s authority to regulate against unfair and discriminatory contracts.

“There is no clear and readily apparent inconsistency between the Copyright Act and the Maryland Act that either makes compliance with both laws impossible or renders the Maryland Act an obstacle to the purposes of the Copyright Act," Maryland state attorneys argue, adding that "a copyright does not make a product invulnerable to regulation of the manner in which it is marketed."

But in their January 28 reply, the AAP waves off Maryland’s arguments. That the text of the law requires only an “offer to license” is a “distinction without a difference,” AAP lawyers say, insisting the law “deprives publishers of their discretion to control or refrain from such licensing decisions.”

And AAP lawyers argue that Maryland’s “pretext of regulating market practices” fails the “extra element” test because the "unfair practices" Maryland sees arise from "its misperception of the metes and bounds of federal copyright law.”

What Maryland criticizes as 'exploitative tactics,' to the extent they even occur, are legitimate practices in digital licensing...

In fact, despite the well-documented tension in the digital library market, AAP lawyers reiterate their claim that the library e-book market is working just fine. "What Maryland criticizes as 'exploitative tactics,' to the extent they even occur, are legitimate practices in digital licensing across copyright industries that have developed over several decades and stem directly from the exercise of exclusive rights," the AAP brief argues, while also citing strong growth in library e-book lending in contrast to “a multi-year, downward trend" in consumer e-book purchases.

“Maryland’s desire to get ‘more for less,’" AAP argues, "is not a substantial state interest."

AAP lawyers further insist their case is so airtight that the extraordinary measure of a preliminary injunction blocking the law is warranted. “The fact that the Maryland Act violates the Supremacy Clause and is therefore preempted is alone sufficient to demonstrate irreparable harm,” AAP lawyers state. “But if the Maryland Act is allowed to remain in effect only to later be struck down as preempted, publishers will be forced to needlessly spend time, money, and resources to comply with the invalid state law while it is in effect—and they may even be subject to fines or criminal liability during this time,” the brief goes on to argue.

Throughout, the brief gives the impression of an AAP that is out of patience. Unlike its initial filings, the AAP’s reply brief makes no mention of the important role libraries play, and instead largely approaches libraries as any other commercial market actor. “Regardless of whether libraries are non-profits or serve a purportedly ‘non-commercial function,’ they still negotiate and enter into commercial transactions when purchasing physical books and licensing digital content,” the brief states at one point.

The AAP brief also dismisses the driving force behind the Maryland Act—equitable access.

"Maryland does not have the authority to demand that publishers and authors provide every interested public library in the state with immediate access to all of their literary holdings, whether or not they call it ‘equitable access,’" AAP lawyers argue, as well as noting that "older Americans and seniors with disabilities" should "not be coopted to justify an unrelated, preempted, and unconstitutional legislative effort like the Maryland Act.”