Maryland e-book Law Has Its Day in Federal Court as Judge Says to Expect Ruling Soon

Nicholas Barron

Lawyers for the state of Maryland and a leading publishing industry trade group squared off in federal court on Feb. 7 to decide the fate of Maryland’s new e-book law.

The Public Libraries - Electronic Literary Product Licenses law, requires publishers who sell e-books in Maryland to also license those books to libraries “on reasonable terms.” The law went into effect on Jan. 1.

But the Association of American Publishers (AAP) filed a motion on Dec. 16 for a preliminary injunction. If granted, the injunction would scrap Maryland’s e-book law.

Maryland responded by filing a motion on Jan. 14 to dismiss AAP’s suit, setting up the Feb. 7 hearing.

In a virtual hearing that stretched nearly three hours, Maryland Assistant Attorney General Sean Fitzgerald and AAP attorney Scott Zebrak argued their cases before federal judge Deborah L. Boardman.

Zebrak reiterated the AAP’s argument that Maryland’s e-book law is “​​a shadow copyright act” that supplants federal copyright laws.

Fitzgerald argued that the copyright act balances a creator’s right to negotiate prices for their work with the public's right to access that work. Fitzgerald said that allowing publishers not to extend digital licenses to public libraries denies the public their right to access published works.
Photo by Julia M Cameron from Pexels

Judge grills Maryland’s assistant attorney general.

Judge Boardman spent over an hour grilling Fitzgerald about Maryland’s e-book law.

Among Boardman’s questions for Fitzgerald is who constitutes the “public” in the law? Is that just people in Maryland or those living elsewhere?
Deborah Boardman testifying before the Senate Judiciary Committee in May 2021.Photo courtesy of the United States Senate Judiciary Committee

Boardman also took issue with the law’s use of “reasonable terms.” What is “reasonable?” the judge asked.

And Boardman called the library e-book market different from the consumer e-book market because libraries lend instead of selling their materials.

“What authority do I have at this point to consider a compelling state interest?” Boardman said to Fitzgerald.

Fitzgerald countered that copyright law doesn’t exclude copyright holders, such as publishers, from regulation.

“The holders of copyright have the right to exclude others from using their property and to content themselves with not licensing their product,” Fitzgerald said. “But once they start putting their product into the marketplace, they don’t have the right to do so a) free from regulation, and b) …they do not have the right to exclude a particular class, and in this case, such a special and important class of non-commercial entities, from their products.”

"(Copyright holders) do not have the right to exclude a particular class, and in this case, such a special and important class of non-commercial entities, from their products." - Maryland Assistant Attorney General Sean Fitzgerald

And Fitzgerald argued that Maryland’s e-book law does not violate federal copyright laws.

“The Maryland Act is not requiring publishers to give their works away,” Fitzgerald said. “It is not requiring them to divest themselves of the copyrights they have. What it’s saying is that you cannot discriminate and arbitrarily exclude libraries because that is inconsistent with over 100 years of library lending protected by the copyright act.”

Publishers say Maryland e-book law violates federal law

When it came time to question AAP’s attorney, Zebrak, Boardman began by saying she understood Maryland's perspective, at least in part.

“It does seem to me that there is inequity and an unfairness on how publishers have treated public libraries,” Boardman said.

But Zebrak disagreed, saying Maryland is caving to outside pressure and that the state’s e-book law violates federal copyright protections.

“What’s happening here is an end-run by certain groups that want to divert copyright policy from the federal government to state legislatures,” Zebrak said. “But it’s unambiguous that copyright policy is Congress's sole authority.”

"It’s unambiguous that copyright policy is Congress's sole authority." - Association of American Publishers attorney Scott Zebrak.

Maryland’s e-book law follows the American Library Association’s #eBooksForAll campaign. That campaign came after Macmillan Publishers Ltd. tried in 2019 to limit the number of e-books it makes available to public libraries.

“Congress decides copyright policy,” Zebrak told Boardman. “In the back-and-forth that it’s all about balance, and achieving the right balance, or a fair balance, or a reasonable balance, or a proper balance, all these words involve judgment. And that judgment is for Congress. It’s not for the state. Whatever interest the state thinks it has, the state cannot substitute its judgment for that of Congress. This is an area fully for Congress.”

Zebrak argued that Maryland’s e-book law forces publishers to choose between complying with that state’s or federal laws.

“The only way for us to as publishers fulfill our obligation to authors…would be, unless you wanna risk civil liability or potentially be put in jail, to acquiesce and bend the knee to the state regulation, and to substitute its policy for Congress's determination on how to best calibrate copyright,” Zebrak said.

What’s next for Maryland’s e-book law?

For their injunction motion to be successful, the AAP must successfully prove four factors:

  1. The likelihood of success on the merits of their argument.
  2. The likelihood of irreparable harm if the law remains.
  3. That the balance of equities and hardships is in their favor.
  4. And that the AAP’s argument is in the public interest.

Boardman will only grant AAP’s injunction if the judge feels the trade association has successfully proven all four factors.

Boardman told the AAP and the state of Maryland they could expect a quick decision, although the judge declined to state precisely when they’ll issue their ruling.

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