Maryland Gives Up on Its Library E-book Law

“Maryland’s library e-book law is effectively dead. In a court filing this week, 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. …

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. …”

Publishing Giants Are Fighting Libraries on E-Books – Sludge

“According to a recent survey by the library group ReadersFirst, e-book prices for libraries have tripled over the past nine years, with publishers charging between $20 and $65 for an e-book copy that libraries cannot own permanently. For popular e-books, libraries pay $55 for a copy that expires after two years, or $550 for a copy for 20 years, compared with the about $15 that a consumer would pay, according to the American Library Association (ALA).

The Maryland law passed 130 to 0 in the General Assembly and 47-0 in the Maryland Senate, and took effect on the first day of this year. Last month, however, a federal judge issued a preliminary injunction, siding with AAP’s argument in their lawsuit that the law interferes with federal copyright law. The Maryland attorney general will defend the state’s law, a stance applauded by the ALA. …

As it fights against these bills, the AAP and its affiliated groups, backed by massive corporations, have far more money and resources to apply to their legal work, and have spent far more on lobbying efforts and political contributions. …”

Maryland Defends Its Library E-book Law, Seeks Dismissal of AAP Lawsuit

“In a January 14 filing, the Maryland Attorney General defended the state’s new library e-book law, rejecting the Association of American Publishers’ contention that the measure runs afoul of federal copyright law.

“This case is not about copyright protection—it is about the unfair and discriminatory trade practices of publishers at the expense of public libraries,” reads the first line of the state’s brief. “[When] a publisher elevates its own reward to the detriment of the public, the state has a legitimate interest in remedying the situation,” the brief later states. “Maryland decided to remedy such a situation, and chose a remedy that is fully consistent with the purpose of copyright.” 

The Maryland e-book law went into effect on January 1. It requires that publishers offering e-books to consumers in the state must also offer to license the works to public libraries on “reasonable” terms.

The filing comes after the AAP on December 9 sued Maryland state officials in federal court, arguing that the law is preempted by the federal Copyright Act. The AAP also claims the law violates interstate commerce laws, and is unconstitutionally vague. The heart of the case, however, is that the Maryland law allegedly functions as a “compulsory license” that infringes on the exclusive rights granted to publishers and authors under copyright. The AAP is seeking an order declaring the Maryland law is preempted, as well a preliminary and permanent injunction against enforcement of the act.

In their 42-page legal memorandum, Maryland Attorney General Brian Frosh and his team counter that the state’s library e-book law is constitutional, does not touch upon the exclusive rights granted under copyright, and is in fact a “modest” consumer protection statute enacted to prevent some publishers from “capitalizing on the digital revolution at libraries’ expense.” …”

With AAP Reply, Legal Battle Over Maryland Library E-book Law Intensifies

“In a January 28 court filing, lawyers for the Association of American publishers doubled down on their claim that Maryland’s library e-book law is clearly preempted by the federal Copyright Act, and said supporters of the law are seeking to “unravel decades of federal legislation and jurisprudence that delineate the contours of copyright law.”

In their 37-page reply filing, AAP lawyers asked the court to reject Maryland’s recently filed motion to dismiss the AAP’s case, and to grant the AAP’s motion for a preliminary injunction blocking the law….

Maryland attorneys argue that publishers “continue to enjoy complete control over the rights granted by the Copyright Act,” and insist that the law does not compel a license, only a reasonable “offer to license” and only when a work is also available to consumers. No publisher, the state insists, will be “forced to enter into involuntary and uneconomic licensing agreements.”

Furthermore, Maryland attorneys argue there is an “extra element” that augurs against federal preemption—the state’s authority to regulate against unfair and discriminatory contracts….”

Update: AAP Sues Maryland Over E-Lending Law | Authors Alliance

“Yesterday, the Association of American Publishers (“AAP”) announced it had filed a lawsuit in federal district court against the state of Maryland seeking to block the state’s new e-book lending law from taking effect on January 1st, 2022. This year, Maryland was the first of several states to pass a bill requiring publishers to license e-books to libraries on “reasonable terms,” and is the only state in which such a law is set to go into effect. Authors Alliance has written about this type of state legislation in the past, and we have been following these developments closely throughout the year.

In 2021, multiple states proposed—and in some cases, passed—state legislation requiring publishers to license e-books to libraries on reasonable terms. The legislation responds in part to publishers’ trend in recent years of charging libraries higher prices for e-book licenses than they do consumers: in some cases, libraries must pay up to five times as much as an individual consumer for an e-book license. Moreover, these licenses often come with restrictive terms, such as limits on the number of times an e-book can be checked out before the license is terminated. The issue gained particular salience during the COVID-19 pandemic, as libraries across the country shuttered in-person operations, and patrons were forced to turn to e-books and other digital services in order to access library resources.

In March of this year, the Maryland state legislature unanimously passed the Maryland library e-book lending bill. Before the bill could become law, it faced last-minute opposition by the AAP, which claimed the bill was unconstitutional. Nevertheless, Governor Larry Hogan announced that the bill had become law in May, and would go into effect in January of next year. Described by its proponents as “fairly mild,” the Maryland legislation requires “a publisher who offers to license an electronic literary product to the public to also offer to license the product to public libraries in the State on reasonable terms that would enable public libraries to provide library users with access to the electronic literary product.” “Reasonable terms” are not explicitly defined in the statute, leaving Maryland libraries and publishers to negotiate these terms….”

Library Futures | Statement on the Association of American Publishers Suit Against the State of Maryland

“We are dismayed, but ultimately unsurprised, by the Association of American Publishers’s decision to file suit against the State of Maryland for their ebooks law, passed unanimously by the General Assembly on March 10th, 2021. This law is set to go into effect on January 1, 2022. It represents the Maryland Library Association’s efforts to simply request equal access and pricing in digital content. Nevertheless, the AAP’s complaint calls Maryland’s law “radical.” 

What is “radical” is the lawsuit’s multiple spurious claims regarding the intention of the law, attempting to deflect the blame for the price gouging and rent-seeking behavior for library digital content on technology companies rather than its own members’ behaviors in the market. Public libraries are spending upwards of three times consumer pricing for econtent from the big publishing companies. Further, libraries must continually re-buy their collections over and over or risk having their titles disappear from their collections after the licenses expire or stop being offered.

The AAP’s suit does not represent the view of authors, creatives, or even most publishing companies other than a minority of the biggest media corporations in the world. This famously litigious trade organization has tried to stop libraries before, and they have lost every time. Ultimately, the lawsuit represents a pattern of behavior that demonstrates the commercial publishing industry’s continued disdain for the librarians, educators, and the public who simply want resources to provide access to materials, combat misinformation, and provide quality education in the State of Maryland and beyond….”

The Association of American Publishers Files Suit Against the State of Maryland Over Unprecedented Encroachment Into Federally Protected Copyrights

The Association of American Publishers (AAP), the national trade association for the U.S. publishing industry, today filed suit against the Maryland Attorney General seeking to enjoin and overturn an unconstitutional Maryland law that directly conflicts with the federal Copyright Act by forcing any publisher, domestic and foreign, to make their literary works available to Maryland public libraries in electronic book and audiobook formats according to timing, pricing, and other terms mandated by the state under threat of penalty.

AAP Vows to Protect Copyright from All Challengers

“Challenges to copyright protection are also happening at the state level, Pallante warned, where library lobbyists and “tech-funded” special interest groups are working to “divert copyright protection away from Congress to state assemblies,” an apparent reference to Maryland’s passage of a law late last week that would force publishers to make any digital content they license to consumers available as “an electronic literary product” to public libraries in the state “on reasonable terms.” The AAP opposed the law, and in her remarks, Pallante argued that these state efforts “are clearly preempted by the express language of the federal Copyright Act,” while also spinning a “false narrative.”

Pallante said libraries are an important part of the publishing ecosystem, but added that, “authors, publishers, and bookstores also have policy equities, which is why Congress enacted a singular cohesive federal copyright system that has address the ownership and sale of books since 1790.” She also hit back against what she said are lobbyists pushing states to fund open educational resources “through ugly misinformation campaigns aimed at publishers” and designed to replace publishers’ materials.

In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”…”

Now Is Not The Time For Publishers to Go After Online Libraries: Hachette Book Group, Inc. v. Internet Archive – The Temple 10-Q

“Nothing better promotes the progress of science and the arts than access to knowledge, especially during a global pandemic. COVID-19 has highlighted how our society has changed in the past few decades and how much it needs to change in the decades to come. As schools and workplaces, law firms included, went partially or completely remote, connectivity and access to online resources became more important than ever. It is in this environment that several publishers chose to bring litigation against Internet Archive (IA) in Hachette Book Group, Inc. v. Internet Archive. 

Open Library is a non-profit digital library founded by IA that offers online access to more than 1.3 million books that it has digitized into a PDF format. Operating under the Controlled Digital Lending (CDL) model, Open Library lends out only as many books as it has physical hardcopies of. Essentially, the basis of CDL is that a book must be owned to be loaned.  …”

Are price barriers in the national interest?

“[Adler] rejected the idea that taxpayer financed research should be open to the public, saying that it was in the national interest for it to be restricted to those who could pay subscription fees. “Remember — you’re talking about free online access to the world,” he said. “You are talking about making our competitive research available to foreign governments and corporations.” …

Note that we’re talking about published research, not classified research that isn’t published.

Thank goodness our enemies can’t afford to pay subscriptions or visit libraries.

Thank goodness harming Americans has the side-effect of harming foreigners.  At least our sacrifice is not in vain.

Thank goodness Americans have never benefited from scientific advances made by non-Americans. 

Thank goodness publishers are willing to collect subscription fees for this patriotic purpose.

Thank goodness publishers are willing to shoulder the responsibility of controlling access to our research.   We know that they don’t have to.  They didn’t conduct this research, write it up, or fund it….”

Are price barriers in the national interest?

“[Adler] rejected the idea that taxpayer financed research should be open to the public, saying that it was in the national interest for it to be restricted to those who could pay subscription fees. “Remember — you’re talking about free online access to the world,” he said. “You are talking about making our competitive research available to foreign governments and corporations.” …

Note that we’re talking about published research, not classified research that isn’t published. Thank goodness our enemies can’t afford to pay subscriptions or visit libraries. Thank goodness harming Americans has the side-effect of harming foreigners.  At least our sacrifice is not in vain. Thank goodness Americans have never benefited from scientific advances made by non-Americans.  Thank goodness publishers are willing to collect subscription fees for this patriotic purpose. Thank goodness publishers are willing to shoulder the responsibility of controlling access to our research.   We know that they don’t have to.  They didn’t conduct this research, write it up, or fund it….”

Internet Archive lawyer Lila Bailey leads a new phase of the battle over copyright | Fortune

“The case involves the Internet Archive’s decision to create a temporary “National Emergency Library” at the height of the pandemic’s first wave—a service that expanded how many e-books clients could borrow simultaneously. The publishing industry sued, saying the non-profit was handing out digital books without permission.

 

The Internet Archive case has received national attention—a widely shared article in The Nation described it as “publishers taking the Internet to court”—and has drawn attention to the reality that, as library branches close over COVID concerns, patrons must often wait 10 weeks or more to borrow the digital version of a best-seller….”

Pop! Public-Private Partnerships and the Digitization of the Textual and Cultural Record

“This paper follows these threads to investigate a series of case studies of electronic access to books and cultural heritage, each incorporating some notion of a public-private partnership and some notion of the importance of open access or public good agendas, using as case studies projects like the HathiTrust’s Digital Library, Google Books, and Microsoft’s partnership with the British Library in the ill-fate Live Search Books project. The paper asks how the principles of open social scholarship contribute to a better and more nuanced understanding of digitization as a cultural practice and asks how a better understanding of the networks, partnerships, and paperwork (agreements, policies etc) of digitization could inform developments in open social scholarship. …”

Publisher Lawsuit Against Internet Archive Puts Future of Book Ownership In Question | WDET

“The newly-launched library serviced a temporary collection of books — about 4 million in total, many in the public domain — with a targeted focus of supporting remote teaching, research activities and independent scholarship. For this service, students paid nothing. 

This Open Library is now at the center of a lawsuit filed by major publishing corporations, including HarperCollins, Hatchett, Wiley and Random House, against the Internet Archives, a nonprofit website, alleging that the Open Library concept is a “mass copyright infringement.”

The lawsuit is scheduled for a federal court trial in 2021.  The publishers are seeking to have the Open Library permanently shut down….

In an op-ed written for The Nation, journalist and new media pioneer Maria Bustillos took a critical look at the lawsuit, the concept of an open library and what ownership means when major publishers seek to change what it means to own a book….”

Internet Archive Responds to Piracy Charges | CCC’s Beyond the Book

“According to the filing, says [Andrew Albanese of Publishers Weekly], the Internet Archive “does what libraries have always done: buy, collect, preserve, and share our common culture. Its untested legal theory of Controlled Digital Lending (CDL) is [allegedly] a good faith and legal effort specifically designed to ‘mirror traditional library lending online.’

[Still quoting Albanese:] “Contrary to the publishers’ accusations, the filing states, the Internet Archive, and the hundreds of libraries that support CDL, are not pirates or thieves, they are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world.” …”