January 21, 2022

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

Direct to Case Docket and Filings (via RECAP)

UPDATE (January 18, 2022)

UPDATE (January 17, 2022)

UPDATE (January 15, 2022)

UPDATE (January 14, 2022)

UPDATE (December 23, 2021) Internet Archive Supports the Maryland’s Library eBook Fairness Law (via Internet Archive Blog)

UPDATE (December 22, 2021) International Publishers Associations Supports the Association of American Publishers in Their Suit Against the State of Maryland

UPDATE December 21, 2021) Hearing Set in AAP Suit Over Maryland E-book Law as Clock Ticks on New York (via Publishers Weekly)

UPDATE (December 21, 2021): Libraries Enlist States in Fight Over Ebook Rules (via Axios)

UPDATE (December 17. 2021): Statement From Federation of European Publishers

UPDATE (December 16, 2021) AAP Files For Preliminary Injunction

UPDATE: Coverage From Publishers Weekly

UPDATE: Library Futures Issues Statement Association of American Publishers Suit Against the State of Maryland (via LF)

UPDATE: Authors Guild Supports AAP’s Lawsuit to Enjoin Maryland’s Ebook Licensing Law

UPDATE: News Media Alliance Supports AAP’s Suit to Protect Copyright

UPDATE: Copyright Alliance Commends AAP for Opposing State of Maryland’s Unconstitutional E-Book Licensing Mandates

From AAP (Complete Statement):

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.

Slated to take effect on January 1st, 2022, the Maryland law gives libraries unprecedented control over basic copyright transactions that are clearly reserved to those who write, develop, invest in, distribute, and make publicly available the invaluable array of novels, biographies, historical and political works, poetry, scholarship, and course materials that are the mission of publishing, and which together fuel entertainment, human empowerment, and scientific progress on a global basis.  In seeking to regulate books, Maryland disregarded the testimony of publishers and authors, established law, and market facts.

Maryland Act Preempted by Federal Law

“Maryland does not have the constitutional authority to create a shadow copyright act or to manipulate the value of intellectual property interests,” commented Maria A. Pallante, President and CEO of the Association of American Publishers and former head of the United States Copyright Office.  “It is unambiguous that the U.S. Copyright Act governs the disposition of literary works in commerce—and for that matter, all creative works of authorship.  We take this encroachment very seriously, as the threat that it is to a viable, independent publishing industry in the United States and to a borderless copyright economy.”

There is no justification for Maryland’s intrusion into the publishing industry, even if were not preempted. Although print remains an extremely popular format among readers of all ages, libraries today also have access to a dizzying number of titles in ebook and audiobook formats, just as retail channels do. Publishers must, of course, make balancing decisions about the timing, pricing, and formats of their books, in order to ensure a return on their investments and to achieve the long-term potential value of any particular work. These incalculable decisions are the means by which all content businesses compete, endure, and serve the public interest, whether they invest in books, music, movies, or newspapers. Moreover, the legislation is redundant, as publishing houses have long been on the front lines of supporting libraries, from their earliest incarnations to the age of the Internet.

“The fact is that the vast majority of AAP members already make their full digital catalogs available to public libraries across the country, with the result that Maryland’s lending institutions see millions of digital checkouts each and every year, giving them a broader reach than ever before in their history,” commented Ms. Pallante. “And on a national basis, America’s lending institutions will see over half a billion digital checkouts over the course of 2021 alone, according to Overdrive, the leading digital reading platform for libraries and schools worldwide.”

The Maryland Act is an impermissible and unconstitutional overreach into federal copyright law and an unjustified effort to divert copyright policy away from the U.S. Congress to state assemblies, at the expense of longstanding incentives and protections that are the foundation of our creative economy.

The authority of the federal Copyright Act is the basis of all content-driven businesses, and has made America’s core copyright industries, including publishing, key drivers of the national economy, employing 5.7 million workers and contributing an annual $1.5 trillion to the U.S. GDP.

For these reasons, some twenty-five years ago, the United States and hundreds of other countries addressed copyright interests arising in the context of the digital environment through a pair of binding instruments known as the WIPO Internet Treaties. These treaties, which the United States duly affirmed through a combination of existing law and the 1998 Digital Millennium Copyright Act, make clear that the copyright owner has the exclusive right to authorize the digital dissemination or transmission of a creative work, including in new and innovative formats and irrespective of whether the customer is in a bookstore, library, or the comfort of their own home.  Intergovernmental leaders paved the way for the very innovations that led to ebooks and audiobooks, and which will, no doubt, lead to future exciting formats made possible by a free and ever-evolving marketplace.

Read the Complete AAP Statement (790 words)

Direct to Full Text of Complaint

Background

Note: For background and discussion re: Maryland’s law, see:

Full Text of Maryland Law

“U.S. Copyright Office Weighs in on Maryland Library E-book Law” (via PW; August 31, 2021)

Association of Research Libraries (ARL): “Maryland Is First State to Expand Equitable Access to E-books through Libraries” (via ARL; June 2021)

About Gary Price

Gary Price (gprice@mediasourceinc.com) is a librarian, writer, consultant, and frequent conference speaker based in the Washington D.C. metro area. Before launching INFOdocket, Price and Shirl Kennedy were the founders and senior editors at ResourceShelf and DocuTicker for 10 years. From 2006-2009 he was Director of Online Information Services at Ask.com, and is currently a contributing editor at Search Engine Land.

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