Report: “U.S. Copyright Office Weighs in on Maryland Library E-book Law”

From an Article by Andrew Albanese, Publisher’s Weekly:

In an opinion issued this week, U.S. Register of Copyrights Shira Perlmutter concluded that a court would likely find Maryland’s recently passed library e-book law to be preempted by federal copyright law under a legal doctrine known as “conflict preemption.”

But in her 9-page opinion, Perlmutter did not find the Maryland law to be “expressly” preempted by the Copyright Act, as opponents of the law have contended, and conceded that the cases she used to reach her “conflict preemption” determination (which relies heavily on a 1999 decision in Orson Inc. v. Miramax) are not exactly perfect fits.

“To date neither the Supreme Court nor any other circuit courts…have had occasion to consider whether state regulations seeking to require licensing of copyrighted works could avoid conflict preemption either generally or under narrow circumstances, such as upon a showing of a state interest that is sufficiently compelling and distinct from the Copyright Act’s purposes,” Perlmutter writes. “Nonetheless, we believe the Orson court’s reasoning is sufficiently sound that a court considering the state legislation at issue would likely find it preempted under a conflict preemption analysis.”

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When it takes effect in January, 2022, the Maryland law (known as SB432) will require 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. The bill passed the Maryland General Assembly unanimously in March. In June, New York passed a similar law that is now awaiting the governor’s signature or veto and at least half a dozen states are reported to have begun exploring similar legislation.

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See Also: Statement on Copyright Office Analysis of State e-lending Developments (via Assoc. of American Publishers)

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