“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.” …”

“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….”