With a hearing set for Monday, February 7, attorneys for the state of Maryland this week fired back at the Association of American Publishers, insisting the state's library e-book law is not preempted by federal copyright law, and that the state has the authority and a compelling interest to protect public libraries from “unfair” market practices.

In a 25-page brief, filed on February 3, Maryland lawyers say the AAP is seeking to find a copyright conflict where none exists, and reiterate their contention that the AAP is misrepresenting the state’s new e-book law.

“The Maryland Act…does not invade the exclusive rights of copyright holders; it leaves to them whether to offer copyrighted content to the public. All the law does is regulate the publishers’ business model after the publisher has decided to offer its material for licensing, left the world of copyright, and entered the marketplace for such transactions,” the Maryland reply brief states. “At that point, the Maryland Act simply requires that publishers not unfairly discriminate against Maryland public libraries and offer them licenses on reasonable terms—concepts that one would think the publishing industry would embrace as part of its ‘responsive relationships’ with ‘their library partners.’”

Maryland’s library e-book law passed the Maryland General Assembly unanimously last March, 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, however, filed suit on December 9, arguing that the 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." In a January 28 reply filing, AAP lawyers doubled down on their preemption claims, arguing that the law clearly infringes upon the publishers' exclusive rights, and said that Maryland’s “pretext of regulating market practices” fails, in part because the "unfair practices" the Maryland legislature claims to be addressing arise from “its misperception of the metes and bounds” of copyright. “What Maryland criticizes as ‘exploitative tactics,’ to the extent they even occur, are legitimate practices in digital licensing,” AAP lawyers argue.

The AAP is seeking a declaration that the law is preempted, and as well as an injunction blocking the law from being enforced.

Maryland’s public libraries’ mission to provide free access to literary works to members of the public presents a compelling state interest that is directly aligned with the properly balanced interests of the Copyright Act.

Maryland, however, counters that the AAP case should be dismissed. In their reply filing this week, Maryland attorneys insist that the law "regulates trade, not copyright," and calls out the AAP’s “remarkable assertion that Maryland has no legitimate interest in protecting publicly funded libraries—and the state residents who use them—from the discriminatory practices of some e-book publishers.”

"The Act’s provisions apply only when the publisher has made the decision to license a work and to make such licenses available to the Maryland public. When that occurs, the Act prohibits the publisher from discriminating against public libraries or charging them unreasonably high prices," Maryland argues. Answering a rhetorical question raised in the AAP's reply brief, Maryland attorneys say that the state's public libraries "do not seek to be their own version of Netflix." Rather, "they seek to be what they have been for centuries: providers of information resources to patrons, particularly those who cannot afford to purchase literary works."

Furthermore, nothing in the case law cited by the AAP, Maryland attorneys argue, “stands for the proposition that publishers can arbitrarily refuse to license e-books to Maryland public libraries or do so only on demonstrably unfair terms." To that end, Maryland attorneys say the case the AAP relies heavily upon for its preemption claims: a 1999 decision in Orson Inc. v. Miramax (a case that involved the commercial distribution of art films in local theaters), is not on point.

"Orson involved commercial actors seeking to exploit an artist’s copyrighted material for profit; it says nothing about public libraries and their special role in the way knowledge is disseminated throughout the Nation," the Maryland brief states. "While the Association, in this portion of its argument, views public libraries as just another commercial customer...libraries are a public institution predating copyright and critical to fostering democratic values in the citizenry. Maryland’s public libraries’ mission to provide free access to literary works to members of the public presents a compelling state interest that is directly aligned with the properly balanced interests of the Copyright Act and that is not shared by the commercial movie theater in Orson."

In fact, far from being in conflict with copyright, Maryland attorneys insist the state's e-book law supports Congress's intent: "to ensure that copyright owners receive a fair price for the works they choose to license, and that the artist’s right to control his or her work is balanced with the public’s need for access to creative works.”