Maryland's library e-book law is one step closer to its end. In a filing this week, the Association of American Publishers asked federal judge Deborah L. Boardman to close the door once and for all on the law by converting her February preliminary injunction blocking the law into a permanent injunction.

“[Maryland] has provided no assurance that the Maryland Act will never be enforced. The State has not taken any action to repeal the Maryland Act. Moreover, [the state] offers only attorney argument for the proposition that the State ‘does not intend’ to enforce the Maryland Act,” the AAP brief states. “Intentions can change. An injunction precludes the State from enforcing the Maryland Act, period.”

In an April 26 order, Boardman asked Maryland attorneys to respond to the AAP filing by May 9.

The AAP response comes after Boardman in February issued a preliminary injunction barring Maryland’s library e-book law from being enforced, holding that the state’s law is in fact preempted by the federal Copyright Act.

On April 11, Maryland attorneys told the court that the state would no longer defend the law. But in a final motion, Maryland attorneys asked the court to forego permanent injunction, arguing that a declaratory judgment was sufficient. “The State’s conduct shows that injunctive relief is not necessary here,” Maryland attorneys told the court in an April 11 filing. “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.”

But AAP lawyers told the court that a declaratory judgment is simply not enough to protect publishers.

“A permanent injunction, as opposed to just the entry of a declaratory judgment, is the necessary and appropriate next step in this case," the AAP filing states. "The State acted contrary to law in enacting the Maryland Act, disregarding the critically important preemption issues that the publishing and author communities had brought to its attention. The State then ‘doubled down’ on its defense of the Maryland Act in this proceeding, raising a host of invalid arguments about the State’s authority and aggressively questioning both the principles and operation of the Nation’s federal Copyright Act. At each turn, the State’s actions reflected an unwillingness to respect the judgment of the United States Congress on copyright policy and the boundaries between states and the federal government under the Supremacy Clause of the United States Constitution.”

First introduced in January 2021, the Maryland e-book 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." 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.

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.