The AAP Sues Maryland

Update: It is now official that Maryland will defend its law. I’m proud of our legislators and our A.G. for fighting for Maryland residents’ ability to read digital content, blocking “windowing” and embargoes and working for reasonable and sustainable terms.

ENTRY OF APPEARANCE
Now comes Elliott L. Schoen, Assistant Attorney General, to enter his appearance
on behalf of Defendant Brian E. Frosh in his official capacity as the Attorney General for
the State of Maryland (“the State”), in the above-captioned matter.

As many people interested in the library ebook market are aware, the Association of American Publishers (AAP) has sued Maryland, seeking a temporary and permanent injunction on the digital content law that is slated to take effect on January 1, 2022. The law would require publishers to license e-books to libraries on “reasonable terms.”

I’ve been silent on this development. I’m a Maryland resident and librarian and advocated for the law. I am a member of the Maryland Library Association. We are all keeping mum so that we don’t get out in front of the Maryland Attorney General’s Office, which is charged with defending the law. We are, however, gathering support from across the country and advocating for a strong defense of the law. I can’t say anything for now, even if I note I wouldn’t be speaking for anyone but myself. I can, however, point to a number of organizations and individuals that are in Maryland’s corner.

Kyle Cortney and Jennie Rose Halperin of LibraryFutures say “What is ‘radical’ is the lawsuit’s multiple spurious claims regarding the intention of the law, attempting to deflect the blame for the price gouging and rent-seeking behavior for library digital content on technology companies rather than its own members’ behaviors in the market.”

The Authors Alliance notes that “Overall, the AAP takes the position that it is possible for state governments to support libraries without this type of legislation. Yet the fact remains that libraries have consistently had difficulties meeting their patrons’ needs with regards to digital lending: until last year, one of the major publishers even had an embargo in place, preventing libraries from obtaining many copies of new books. Without legislation addressing the issue—such as the Maryland law now under attack—there is no guarantee that publishers will offer libraries e-book licenses on terms they can afford and which meet the changing needs of patrons.“

In TechDirt, Mike Masnick writes “I assume that Maryland will argue, forcefully, that this is not a copyright law or an attempt to route around federal copyright law, but rather something else entirely. Indeed, as some have noticed, the Maryland law is deliberately "modest." It only says that if a publisher is already offering ebooks, it also has to make sure it will sell to libraries at a reasonable price. It's not forcing publishers to offer ebooks at all -- just make sure that the publishers can't treat consumers and libraries differently. And, as the libraries argued in the runup to this bill passing, there is historical evidence that a law that only impacts contracting does not impede on copyright.”

These articles are all worth a read. There are more. If pressed to say something that would not potentially forestall Maryland’s A.G. office nor comment on legalities (I’m not an attorney), I’d note that the AAP has interposed itself between what could be fruitful conversations between libraries and individual publishers to explore mutually beneficial terms more inline with what libraries pay for print for the benefit of readers and authors. Libraries could offer more titles and take chances on more authors, helping discovery and even enhancing sales. It’s a shame. The suit is simply not needed to protect the publishers. What we wanted, and still want, is dialog. The publishers tout their commitment to equity and new, perhaps previously unheard voices. How is this helping?

Well, maybe one other thing to say: a lackey lobbyist group, lapdog of oligarchic multi-billion dollar conglomerates in a time of record profits to the detriment of library readers, is spouting nonsense about democracy while fighting its very existence. Join us as we fight. Your ability to be an informed person without having to resort to a credit card is under attack. The AAP—lying agent of naked greed, lickspittle protector of larcenous price-gouging of the public funds that support library readers—you will meet only resolution and defiance.