I write to express extreme disappointment in the recent Publishers Weekly article, "Library E-Book Bill Advancing in Maryland," which repeats an opinion from library association lawyer Jonathan Band that badly misstates copyright law and the bill itself.
Regrettably, PW quotes Band’s false statement that the Maryland e-book bill does not diminish publishers’ rights and is therefore “completely outside the scope” of federal preemption. In point of fact, the bill compels licensing: it requires authors and publishers to license their books in the first instance to libraries if they have licensed them to non-libraries. Federal law expressly preempts state laws which inhibit the exclusive rights of authors and publishers to choose whether, when, and how to license their works. Indeed, one is hard pressed to find a clearer example of the type of law that is preempted by the federal Copyright Act.
There really is no question that public libraries are critically important customers for e-books and audiobooks, and, for this reason, they enjoy long-standing business relationships with AAP member companies. This proposed state legislation, however, comprises an unprecedented government intervention into the manner and terms by which authors and publishers distribute valuable works of fiction and nonfiction to the public. As noted in AAP’s testimony as well as that of the Authors Guild, the effort is very likely unconstitutional.
Association of American Publishers