Publishers are no longer required to offer licensing of their electronic literary products to Maryland public libraries.[1] The United States District Court for the District of Maryland ruled that Maryland’s Electronic Literary Product Licenses Act ( “Act”), which requires publishers to license electronic works to public libraries, is unconstitutional because it conflicts with, and is preempted by, the federal Copyright Act.[2] The Association of American Publishers (“AAP”) filed suit in federal court against the Maryland Attorney General, in his official capacity, seeking a declaratory judgment finding the Act unconstitutional.[3] The court agreed with AAP and granted the declaratory judgment because the Act conflicts with a provision in the Copyright Act that grants owners of copyrighted material “exclusive rights” to decide matters surrounding the distribution of their own works.[4] Therefore, pursuant to the Constitution’s Supremacy Clause,[5] the Maryland Act is preempted by the Copyright Act and is rendered unconstitutional.[6]

In a society where literary consumption is continuously moving away from paper books and closer to electronic mediums, the Act sought to level the playing field for Maryland public libraries by providing equal access to electronic literature. The Act directed publishers to license their electronic literary works to Maryland public libraries on “reasonable terms” when it made those works available to the public.[7] A violation of the Act is considered “an unfair, abusive, or deceptive trade practice.”[8] In her testimony supporting the legislation, Morgan Miller, the president of the Maryland Library Association, shared that Maryland public libraries are “subjected to predatory pricing and lending structures by publishers.”[9] The pricing for electronic works may sometimes be as high as “three times the cost to consumers,” and the lending hoops may “delay or limit the availability of certain titles and block access to some titles altogether.”[10]

On the other side of the issue, a press release by AAP explains that the Act reduces publishers’ agency over their literary works and financial decisions.[11] The AAP highlights that publishers have to make “balancing decisions… to ensure a return on their investments and to achieve the long-term potential value of any particular work.”[12] They suggest that awarding Maryland libraries this much control undercuts publishers’ abilities to succeed in their business goals.[13] Furthermore, the AAP argues that the Act overreaches over the federal government’s efforts to control copyright policy that focuses on protecting the publishing industry.[14] These protections are important because they help the public interest by allowing the publishing industry to make substantial contributions to the national economy amounting to “an annual $1.5 trillion to the U.S. GDP.”[15]

Proponents of both sides anchor their arguments on helping the public good; one side favors low-cost accessibility for Marylanders while the other supports free market ideals. For now, the courts have decided for the public and supported the AAP in their efforts to protect publishers’ rights.[16] However, this creates a disproportionate disadvantage for Maryland students who rely on public libraries to provide them with access to electronic works because of a disability or because they cannot afford the publisher’s pricing. Perhaps the Maryland legislature can craft a better solution that would create a path for libraries to provide Maryland students with affordable access to electronic literary resources.

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Cristiana Saballos is a second-year student at the University of Baltimore School of Law and a Staff Editor for Law Forum. She received a B.S. in Political Science with a minor in Mass Communication from Towson University. At the University of Baltimore, Cristiana serves as the Treasurer for Phi Alpha Delta Fraternity and is a member of the National Appellate Advocacy Moot Court Team.

Read more: Maryland’s E-Book Debacle: The Struggles of the Literary Industry in a Digital World

[1] Ass’n of Am. Publishers, Inc. v. Frosh, No. DLB-21-3133, 2022 U.S. Dist. LEXIS 105406, at *1 (D. Md. June 13, 2022).

[2] Id. at 4.

[3] Id. at 1-2.

[4] Id. at 3 (citing 17 U.S.C. § 106(3)).

[5] U.S. Const. art. VI, cl. 2 (the Supremacy clause establishes that federal law takes precedence over state laws).

[6] Id. at 4.

[7] Md. Code Ann., Educ. § 23-702 (LexisNexis 2022).

[8] Id.

[9]  Public Libraries – Electronic Book Licenses – Access: Hearing on HB518 Before the H. Comm. on Ways and Means, 2021 Leg., 442nd Sess. (Md. 2021) (statement of Morgan Miller, President, Md. Library Ass’n).

[10] Id.

[11] Press Release, Association of American Publishers, The Association of American Publishers Files Suit Against the State of Maryland Over Unprecedented Encroachment into Federally Protected Copyrights. (Dec. 9, 2022), https://publishers.org/news/the-association-of-american-publishers-files-suit-against-the-state-of-maryland-over-unprecedented-encroachment-into-federally-protected-copyrights/.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Ass’n of Am. Publishers, Inc., No. DLB-21-3133, 2022 U.S. Dist. LEXIS 105406, at *1 (D. Md. June 13, 2022).