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Publishers sue over Maryland’s first-in-the-nation e-book licensing law

A publishers’ association is suing Maryland over the state’s new e-book law that requires book publishers to sell public libraries licenses to the same digital content that other customers can purchase.

Maryland’s law was a first-in-the-nation effort to force major publishers like Amazon to offer public libraries “reasonable” sales terms for digital product licenses that are also offered to consumers.

The Association of American Publishers, which filed the new lawsuit, does not represent Amazon, according to the complaint, but has concerns about how the law would affect publishers across the industry.

“The Maryland Act will force publishers to disseminate e-books, audiobooks, and other digital literary works to public libraries in Maryland, whenever publishers distribute those works to anyone else —regardless of the fact that federal law protects publishers’ exclusive right to decide whether and to whom they will distribute their works,” the complaint claims.

Lawmakers passed the bill during the 2021 legislative session. The law is set to go into effect on Jan. 1.

During debate over the bill, then-Del. Kathleen Dumais, D-Montgomery, said in written testimony that “some current and past publisher practices impede Maryland’s library patrons’ access to books.”

She pointed to “exclusive” titles that publishers like Amazon make available to individual customers but not to libraries, and other limits or price hikes that publishers have placed on licenses they sell to libraries.

The legislation did not set prices for digital book licenses, but said the terms of license sales to libraries must be “reasonable.”

The Association of American Publishers’ lawsuit argues the legislation is too vague.

“In this case, the bill is just so broad that it sweeps in an entire publishing industry,” said Terrence Hart, the AAP’s general counsel.

The lawsuit also claims the Maryland law is preempted by federal copyright law and intrudes on publishers’ right to decide how they distribute digital products.

“There’s a grave concern when states step in and encroach upon these federally protected, exclusive rights, so we felt it necessary to stop a law that does that,” Hart said.

Maryland was the first state in the nation to pass an e-book licensing law requiring access to libraries, according to the complaint and other news reports, but other states are considering similar legislation. AAP and other organizations have asked New York Gov. Kathy Hochul to veto an e-book licensing bill that passed in the legislature this year.

A spokesperson for the Maryland Attorney General’s Office said the office does not comment on pending or ongoing litigation.

The case, which was filed Thursday, is docketed in U.S. District Court in Maryland at Association of American Publishers, Inc. v. Frosh, 1:21-cv-03133.