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State Law Requiring Offer to License Conflicts With Copyright Act
A federal judge has sided with the Association of American Publishers (AAP), finding in June that a recently enacted Maryland library e-book law conflicts with federal copyright laws. Association of American Publishers Inc. v. Frosh, 21-3133 (D. Md. 2022). The AAP, the national trade association for the publishing industry, filed a lawsuit against Maryland Attorney General Brian E. Frosh in his official capacity following the passing of legislation, Md. Code Ann., Educ. §§23-701 and 23-702, requiring publishers to offer to license copyrighted electronic literary products, like e-books and audiobooks, to Maryland public libraries and to ensure the terms of such licenses to be fair.
The AAP challenged the law, including on conflicts and express preemption with the U.S. Copyright Act, in its complaint filed in U.S. District Court for the District of Maryland on Dec. 9, 2021, just weeks shy of the law going into effect on Jan. 1. Public libraries supported the legislation as a way for the public to gain access to copyrighted materials that publishers have previously withheld from libraries or offered on "economically unfavorable terms." A book on the New York Times Best Sellers list in December 2020 cost an individual consumer $22.05, but a license for the same product cost libraries $95, according to Maryland Federal District Judge Deborah L. Boardman's opinion in February that granted the AAP's motion for a preliminary injunction — concluding the state law likely conflicted with federal copyright law.
The state opposed the motion and moved to dismiss the complaint, noting that the Maryland law requires "only an 'offer to license' and does not explicitly require publishers to grant licenses to libraries." However, a publisher who does not offer a license to libraries could face steep civil or criminal penalties under Maryland's Consumer Protection Act, Md. Code Ann., Com. Law §13-401, the February opinion said.
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