Maryland’s library e-book law is effectively dead. In a recent court filing, Maryland Attorney General Brian E. Frosh said the state would present no new evidence in a legal challenge filed by the Association of American Publishers, allowing the court’s recently issued preliminary injunction blocking the law to stand, and paving the way for it to be converted into a permanent injunction.
“The State acknowledges that there is no genuine dispute as to any material fact and that the Court may grant or deny further relief in this matter without a further hearing or trial,” the filing states. However, rather than convert Judge Deborah L. Boardman’s preliminary injunction into a permanent injunction, state attorneys argued that a less burdensome declaratory judgment would suffice.
“The State’s conduct shows that injunctive relief is not necessary here. At no time from January 1, 2022, has Maryland attempted to enforce the Maryland Act. And, after the Court issued the preliminary injunction, the State did not appeal that decision,” Maryland attorneys argue. “The State has taken no action to reshape how publishers distribute their works and how the marketplace for e-books and audiobooks operates. Nor has the State taken any action to interfere with Plaintiff’s or its members’ business decisions. Because the State is not enforcing the Maryland Act and has no intention to do so, the threat identified by the plaintiff will not come to pass. Accordingly, the Court need not resort to the coercive powers of a permanent injunction to compel the States’ compliance with its decision.”
The AAP, which has until April 25 to respond, said it is reviewing the filing.
Maryland's action comes after federal judge Deborah L. Boardman on February 16 ruled that Maryland’s library e-book law is, as critics had argued, preempted by the federal Copyright Act, holding that the threat of civil and criminal penalties for non-compliance with the act amounts to “a forced transaction” that would “effectively strip publishers of their exclusive right to distribute.”
First introduced in January 2021, the Maryland 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" that would enable library users to have access. The bill passed the Maryland General Assembly unanimously on March 10, and went into effect on January 1, 2022.
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. More specifically, however, the law emerged as a direct response to Macmillan's (since abandoned) 2019 embargo on frontlist e-book titles, which prompted numerous appeals to both federal and state legislators to protect basic access to digital works in libraries.
The Association of American Publishers filed suit on December 9, 2021 arguing that the Maryland law infringed on the exclusive rights granted to publishers and authors under copyright. A week later, on December 16, AAP attorneys moved for a preliminary injunction blocking the law. Just days after a February 7 hearing Boardman enjoined the law.
"Libraries face unique challenges as they sit at the intersection of public service and the private marketplace in an evolving society that is increasingly reliant on digital media," the judge concluded in her 28 page opinion. "Striking the balance between the critical functions of libraries and the importance of preserving the exclusive rights of copyright holders, however, is squarely in the province of Congress and not this Court or a state legislature."
Similar bills are currently still pending in half a dozen other states—although bills in at least three of those states (Missouri, Tennessee, and Illinois) appear to be all but dead. In late December, New York governor Kathy Hochul vetoed New York's library e-book bill.