Judge Grants Preliminary Injunction on Maryland Ebook Law
/As reported today by Andrew Albanese in Publishers Weekly, Judge Deborah Boardman yesterday issued a preliminary injunction preventing Maryland officials from enforcing the state’s ebook law.
“It is clear the Maryland Act likely stands as an obstacle to the accomplishment of the purposes and objectives of the Copyright Act ,” [she] concluded. . . . . Although the judge noted that the Maryland Act only requires an ‘offer’ to license and does not ‘explicitly require’ publishers to grant licenses to libraries, “this is a distinction without a difference,” Boardman concluded (lifting directly from the AAP’s brief), holding that the threat of civil and criminal penalties for non-compliance amounts to “a forced transaction” that “effectively strips publishers of their exclusive right to distribute.”
We at RF turn to Albanese’s report because it is, as usual, nuanced and fair, unlike more partisan views from the AAP and supporters. The case has not yet been fully adjudicated, but, as Albanese makes clear, the judge is leaning towards preemption of the law even though she notes the status quo is not fair for libraries:
Libraries serve many critical functions in our democracy. They serve as a repository of knowledge—both old and new—and ensure access to that knowledge does not depend on wealth or ability. They also play a special role in documenting society’s evolution. Libraries face unique challenges as they sit at the intersection of public service and the private marketplace in an evolving society that is increasingly reliant on digital media. [Yet] Striking the balance between the critical functions of libraries and the importance of preserving the exclusive rights of copyright holders, however, is squarely in the province of Congress and not this Court or a state legislature.
The ALA has issued a statement in support of Maryland libraries and State AG, which drew upon the statement by Alan Inouye quoted in Albanese’s piece:,
"Regardless of the legal technicalities, the proceedings thus far have established that there is a definite injustice in library access to digital books," Alan Inouye, ALA Senior Director, Public Policy & Government Relations, told PW. "ALA looks forward to the next steps in this proceeding as well as efforts elsewhere towards the goal of equitable library access to digital books and fair treatment for all stakeholders in the digital book ecosystem."
A Maryland Library Association statement is forthcoming.
The ruling for injunction, while one possible legal view, highlights the crying need for change. Ebook technology and the federal legislation currently in place allows publishers to disadvantage library readers. To have access to Big 5 content, libraries must pay over and over due to license limits—a problem that might not be so bad if only the rates were anything like reasonable when compared to the prices we pay for print. We have of course seen content withheld either completely or so narrowly that accession is nigh unto impossible. Justice cannot exist if the public's access is so expensive and tenuous. We cannot build deep and rich collections on the current unsustainable terms. The "nuclear option"--withholding purchase from any publisher not offering reasonable terms--is not attractive. It disadvantages our readers and even plays into the hands of any publisher who frankly would rather not see libraries in the market at all. While a last desperate resort, it remains on the table if we cannot find other remedies. I look forward to to seeing how the Maryland law plays out. We in libraries are not quitting. We owe our readers too much to give in to an unjust if arguably legal status quo.
The fight will go on in Maryland and other states for access on reasonable terms. if necessary, we shall tweak the Maryland bill and bring it back, perhaps next year. To requote Judge Boardman, “Striking the balance between the critical functions of libraries and the importance of preserving the exclusive rights of copyright holders, however, is squarely in the province of Congress.” We shall go on, to Congress if necessary. The billions or trillions of the corporations fighting for EXCESSIVE even USURIOUS profit at the expense of the pubic weal will speak for them. We can bring people power only. Let us see if the people can win against corporate might. Somehow, someway, the relegation of library collections to overpriced rentals limited only by greed will not stand.
In the meantime, RF asks publishers to come forward for good faith negotiations with libraries and library associations. All we ask are fair terms.
Added: would someone please explain to me how fair terms for libraries will kill publishing, when we see things like these: