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Update: Authors Guild Statement on AAP’s Win in Maryland Ebook Licensing Case

Update, June 14, 2022: On June 13, 2022, the court issued a final ruling in AAP’s lawsuit against the state of Maryland’s mandatory ebook licensing law, declaring it “unconstitutional and unenforceable” on grounds that it violated the Supremacy Clause of the U.S. Constitution. The final ruling goes further than the court’s earlier grant of an injunction based on the likelihood of unconstitutionality by establishing clear and firm legal precedent for the unconstitutionality of Maryland’s law and similar laws. You can read the full opinion here.

February 18, 2022: The Authors Guild applauds the news that the Association of American Publishers (AAP) won an injunction to block the state of Maryland’s ebook licensing law in court. In a detailed ruling on AAP’s motion, U.S. District Court Judge Deborah Boardman found that the Maryland Act is likely preempted by the Copyright Act, stating that it blocks the objectives of the Copyright Act and so is prohibited under the Supremacy Clause of the U.S. Constitution. The court further found that publishers and other copyright holders would suffer irreparable harm if the law was allowed to go into effect, as it would force them to not license electronic products at all in order to avoid the law’s overreach or face steep civil penalties.

“Although we never doubted the outcome, we are grateful that the court understood that these mandatory ebook and audiobook licensing laws appearing in states around the country are clearly preempted by the Copyright Act,” said Authors Guild CEO Mary Rasenberger. “We have opposed similar laws across the country on the same grounds, including one in New York that Governor Hochul vetoed in December because of the constitutional defects. These laws purport to solve a non-existent problem—that libraries have insufficient access to ebooks. They harm self-published authors, in particular, who may not have access to library ebook and audiobook platforms.”

In her opinion, Judge Boardman cited the Authors Guild’s testimony in opposition to the Maryland law, which “described the legislation as ‘responding to the practice by a dominant player of deliberately withholding its electronic books from libraries with a law that [swept] in thousands of small publishers and self-published authors who cannot manage distribution and licensing at scale.” Motivating the legislation’s proponents, according to the Authors Guild, was a negative response to ‘[t]he practices of one or two actors in the industry.’”

The Author Guild and its nearly 12,000 members strongly support public libraries for all they do to educate, inform, inspire, entertain, and assist millions of people throughout the United States and the world. Authors want their books in libraries in all formats, but a mandatory license that forces anyone who publishes any text electronically to provide those works to libraries in electronic format—when the libraries many not even want licenses to those works in the first place—is not the way to achieve this goal.

 “Public libraries deserve and require more public funding to meet the growing needs of library patrons, including the ability to purchase an adequate number of ebook licenses,” Rasenberger added. “Mandatory ebook licensing laws don’t address this issue, and unfairly target authors and publishers. Moreover, the publishing industry depends on a system of stable, consistent rules, including federal control over copyright law. “If we let all 50 states make up their own copyright laws, authors and publishers would need to comply with different requirements in each state.”

The Authors Guild continues to fight similar bills, most recently submitting opposing testimony in hearings in Missouri and Illinois.

You can read the full opinion here.