Association of American Publishers, Inc. v. FroshAssociation of American Publishers, Inc. v. Frosh
MEMORANDUM OPINION
The Association of American Publishers, Inc. (“AAP“) challenges the constitutionality of a recently enacted Maryland law (“Maryland Act” or “the Act“) that requires publishers who offer to license “electronic literary products” to “the public” to offer to license the same products to Maryland public libraries on “reasonable terms.”
I. Background
The Copyright Clause of the Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries . . . .”
The exclusive rights protected by the Copyright Act are limited in duration.
[This] limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546 (1985) (quoting Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984)).
There are exceptions to the exclusive rights enumerated in
On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by section 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
Despite Congress‘s clear intention to preempt state copyright laws, in early 2021 the Maryland General Assembly introduced legislation with a two-part mission: (1) to require publishers to offer to license copyrighted electronic literary products, such as ebooks and digital audiobooks, to public libraries, and (2) to ensure the terms of such licenses would be fair. S.B. 432, 2021 Gen. Assembly, 442d Sess. (Md. 2021), 2021 Md. Laws Ch. 412; H.B. 518, 2021 Gen. Assembly, 442d Sess. (Md. 2021), 2021 Md. Laws Ch. 411. The legislation attracted much support and opposition—from interested stakeholders with fundamentally divergent views on its costs, benefits, and legality. Compare ECF 7-1, with ECF 10-4 & 10-6. On the one hand, public libraries and their champions viewed the legislation as essential to ensuring public access to copyrighted materials that publishers previously withheld from libraries or offered on economically unfavorable terms. See, e.g., ECF 10-8, at 2–3. The proposed law, according to its proponents, was reasonable and necessary to stop publishers from up-charging libraries for licenses shackled with stringent time and use limitations. See, e.g., ECF 10-9, at 2–3. On the other hand, publishers and other copyright holders saw the legislation as an unconstitutional infringement
The parties here dispute the scope of the problem the legislation purported to solve. The State paints a picture of an inflexible publishing industry that “increasingly offer[s] ebooks and digital audiobooks that [it] will not share with libraries.” ECF 10-4, at 2. Maria Pallante, the Chief Executive Officer of AAP, controverts that depiction of the relationship between publishers and libraries. Pallante Decl., ¶¶ 1–26, ECF 7, at 1–9. In her December 16, 2021 declaration, she stated that “[l]ibrary and ebook and audiobook lending” was “thriving.” Id. ¶ 14, ECF 7, at 5. She also reported that in 2020 “more than 100 public library systems exceed[ed] one million digital checkouts on the ebook lending platform of a library aggregator named OverDrive.” Id. ¶ 15, ECF 7, at 6. Globally, “430 million ebooks were borrowed . . . in 2020.” Id. “In 2021, 129 library systems [were] on track to . . . break[] [2020‘s] all-time [lending] record.” Id. ¶ 16, ECF 7, at 6. The Authors Guild, which testified in opposition to the legislation, 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.” ECF 7-1, at 25. 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.” Id.
Proponents of the legislation additionally decried the terms on which electronic literary products were offered to libraries. Licenses typically lasted only two years for products that may be lent a designated number of times to one individual at a time. Blackwell Decl. ¶¶ 5(a)–(c), ECF 10-3, at 3–4. The cost of the licenses also far exceeded the cost of personal use licenses offered to the public. Id. ¶ 5(d), ECF 10-3, at 5. For example, a book on the New York Times Best Sellers list in December 2020 cost an individual consumеr $22.05, but a license for the same product cost libraries $95.00. ECF 10-8, at 4. From the perspective of AAP and other opponents of the law, comparing electronic literary product licenses offered to libraries with licenses for the same products offered to individuals is like comparing apples with oranges. Personal use licenses are sold to and used by only one person. Library licenses are used by multiple library customers for short periods over the course of the term of the license.
Heated public debate notwithstanding, the legislation was passed unanimously and became law on May 30, 2021, without the Governor‘s signature. 2021 Md. Laws Ch. 411 & 412. The Maryland Act,
Subject to subsections (b) and (c) of this section, a publisher who offers to license an electronic literary product to the public shall offer to license the electronic literary product to public libraries in the State on reasonable terms that would enable public libraries to provide library users with access to the electronic literary product.
(1) [a] text document that has been converted into or published in a digital format that is read on a computer, tablet, smart phone, or other electronic device; or (2) [a]n audio recording of a text document, read out loud in a format that is listened to on a computer, tablet, smart phone, or other electronic device.
Subsection (b) of the Act, “Terms of license,” sets forth certain licensing terms that are acceptable. It provides:
The terms of a license under subsection (a) . . . may include: (1) [a] limitation on the number of users a public library may simultаneously allow to access an electronic literary product; (2) [a] limitation on the number of days a public library may allow a user to access an electronic literary product; and (3) [t]he use of technological protection measures that would prevent a user from: (i) [m]aintaining access to an electronic literary product beyond the access period specified in the license; and (ii) [a]llowing other users to access an electronic literary product.
The Act includes a penalties provision. A violation of the Act “shall constitute an unfair, abusive, or deceptive trade practice and is subject to enforcement in accordance with Title 13, Subtitle 4 of thе Commercial Law Article.”
On December 9, 2021, three weeks before the Act was scheduled to take effect, plaintiff AAP filed suit against the Attorney General of Maryland Brian Frosh in his official capacity. ECF 1. In its complaint, AAP alleges that (i) the Maryland Act is expressly preempted under the Copyright Act (Count I), (ii) the Maryland Act is preempted by the Copyright Act under conflict preemption principles (Count II), (iii) the Act violates the Dormant Commerce Clause of the Constitution (Count III), and (iv) the Act violates the Due Process Clauses of the Fifth and Fourteenth Amendments (Count IV). Id. ¶¶ 75–110. Soon after filing the complaint, AAP filed a motion for a preliminary injunction based on its express and conflict preemption claims.
II. Preliminary Injunction Standard
Prior to the entry of a final judgment, a court may enter a preliminary injunction.
A plaintiff seeking preliminary injunctive relief bears the burden of proof and must meet “a high bar” by “[s]atisfying ... four factors.” SAS Inst., Inc. v. World Programming Ltd., 874 F.3d 370, 385 (4th Cir. 2017); Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991). The plaintiff must clearly show “[1] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest.” Winter, 555 U.S. at 20; The Real Truth About Obama, Inc. v. Fed. Election Comm‘n, 575 F.3d 342, 346–47 (4th Cir. 2009), vacated on other grounds, Citizens United v. FEC, 558 U.S. 310 (2010), aff‘d, The Real Truth About Obama, Inc. v. FEC, 607 F.3d 355 (4th Cir. 2010) (per curiam) (discussing Winter factors). Each factor must be “satisfied as articulated.” Pashby v. Delia, 709 F.3d 307, 320–21 (4th Cir. 2013) (quoting The Real Truth, 575 F.3d at 347).
III. Discussion
Plaintiff asks this Court to enjoin enforcement of the Maryland Act pending resolution of this case because the Act is expressly preempted by and conflicts with the Copyright Act. AAP claims its members
A. Likelihood of Success on the Merits
To secure a preliminary injunction, a plaintiff must “make a ‘clear showing’ that [it is] likely to succeed at trial, [but it] need not show a certainty of success.” Pashby, 709 F.3d at 321 (internal citations omitted); Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017). Therefore, AAP bears the burden of clearly showing the Maryland Act is likely to be found preempted by the Copyright Act.
The preemption doctrine stems from the Supremacy Clause. The Supremacy Clause provides that the “Constitution, and the laws of the United States which shall be made in pursuance thereof[,] . . . shall be the supreme law of the land . . . .”
“Federal law may preempt state law in three ways: by ‘express preemption,’ ‘field preemption,’ and ‘conflict preemption.‘” W. Star Hosp. Auth. Inc. v. City of Richmond, Va., 986 F.4th 354, 360 (4th Cir. 2021) (quoting H & R Block E. Enters., Inc. v. Raskin, 591 F.3d 718, 722 (4th Cir. 2010)). Plaintiff moves for an injunction based on express and conflict preemption. Express preemption occurs when “Congress expressly states its intent to preempt state law.” Decohen v. Capital One, N.A., 703 F.3d 213, 223 (4th Cir. 2012) (citing Cox v. Shalala, 112 F.3d 151, 154 (4th Cir. 1994)). Conflict preemption “occurs when a state law ‘actually conflicts with federal law.‘” Anderson v. Sara Lee Corp., 508 F.3d 181, 191 (4th Cir. 2007) (quoting S. Blasting Servs., Inc. v. Wilkes Cnty., 288 F.3d 584, 590 (4th Cir. 2002) (quoting Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985))).
“The Supreme Court has instructed that conflict preemption ‘includes cases where compliance with both federal and state regulations is a physical impossibility, and those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.‘” South Carolina, 720 F.3d at 529 (quoting Arizona v. United States, 567 U.S. 387, 399–400 (2012)). “Determining whether a state law ‘stands as an obstacle’ to federal law is a two-step process.” Va. Uranium, Inc. v. Warren, 848 F.3d 590, 599 (4th Cir. 2017). “First, [a court] determine[s] Congress‘s ‘significant objective[s]’ in passing the federal lаw.” Id. (quoting Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323, 330 (2011)). A court “then turn[s] to whether the state law stands ‘as an obstacle to the accomplishment of a significant federal regulatory objective.‘” Id. (quoting Williamson, 562 U.S. at 330).
Congress passed the Copyright Act to serve public goals by protecting private rights. It achieved those objectives by “implement[ing] a nationally uniform
It is clear the Maryland Act likely stands as an obstacle to the accomplishment of the purposes and objectives of the Copyright Act. The Maryland Act commands that, if a publisher offers to license an electronic literary product to the public at large, the publisher “shall offer to license” the same product to libraries “on reasonable terms that would enable public libraries to provide library users with access to the electronic literary product.”
Although, as the State points out, the Act requires only an “offer to license” and does not explicitly require publishers to grant licenses to libraries, this is a distinction without a difference. Any publisher who does not offer to license to libraries the same electronic literary products they offer to the public faces steep civil—and even criminal—penalties under Maryland‘s Consumer Protection Act,
No license agreement shall be entered into between distributor and exhibitor to grant an exclusive first run or an exclusive multiple first run for more than 42 days without provision to expand the run to second run or subsequent run theatres within the geographical area and license agreements and prints of said feature motion picture shall be made available by the distributor to those subsequent run theatres that would normally be served on subsequent run availability.
Id. The plaintiff alleged it featured films in the geographic area where Miramax distributed films, yet it “rarely received second-run movies after the forty-second day of play at [another area theater] despite repeated requests.” Id.
The Third Circuit held the state law was preempted. The Court reasoned that if the state law “directly regulate[d] a right that is protected by federal copyright law, it must of necessity, [have] be[en] preempted under conflict preemption principles.” Id. at 385. It recognized that
Although the Maryland Act and the Pennsylvania law are not identical, they are sufficiently similar that the reasoning in Orson applies here. Both state laws implicate the exclusive right to distribute, which encompasses the right to refuse to distribute. Like the Pennsylvania law, the Maryland Act imposes on publishers—against their will and interests—an obligation
The State argues Orson is not persuasive because in Orson “[t]he Third Circuit reasoned that the Pennsylvania statute ‘appropriated a product protected by the copyright law for commercial exploitation against the copyright owner‘s wishes,‘” and that the reasoning does not apply here because the Maryland Act does not involve commercial exploitation as libraries serve a noncommercial function. ECF 10-1, at 21 (quoting Orson, 189 F.3d at 386 (quoting Warner Bros., Inc. v. Wilkinson, 533 F. Supp. 105, 108 (D. Utah 1981), appeal dismissed and case remanded, 782 F.2d 136 (10th Cir. 1985))) (emphasis in def.‘s mem.). This argument is unconvincing. The exclusive rights protected by the Copyright Act are as “to the public,” regardless of whether a licensee uses those rights for commercial or noncommercial purposes.
The State argues Allied Artists Pictures Corporation v. Rhodes, 496 F. Supp. 408 (S.D. Ohio 1980) (”Allied Artists I“), and Allied Artists Picture Corporation v. Rhodes, 679 F.2d 656 (6th Cir. 1982) (”Allied Artists II“), are more analogous to this case than Orson. In Allied Artists I, producers and distributors of motion pictures sued the Governor of Ohio and alleged recently enacted Ohio laws regulating the terms of motion picture licenses were preempted by the Copyright Act. Allied Artists I, 496 F. Supp. at 413. The Ohio laws at issue outlawed blind bidding, “a term used in the motion picture industry to describe the licensing of a motion picture to a theater owner without the owner‘s first viewing the picture.” Id. at 412. They also prohibited mandatory minimum payments and advances required more than fourteen days before the exhibition of films. Id. at 419. Finally, they set forth certain parameters for bidding. Id. at 419–20. For example, invitations to bid had to set out “[t]he number and length of runs to which the invitation to bid applie[d]” and “the geographic area for eаch run.” Id.
The district court rejected the plaintiff‘s argument that the Ohio laws conflicted with the Copyright Act. Allied Artists I, 496 F. Supp. at 444–48. The court reasoned the Copyright Act did not secure to rights holders the rights to market products with unfair tactics or to distribute them in the manner deemed most desirable. Id. at 446–47. Of particular significance here, the court clarified that the Ohio laws [did] not deprive the plaintiffs of their right to decide whether or not to perform the work publicly. . . . [T]he plaintiffs [were] free to choose not to perform their work publicly and [could have] continue[d] to enjoin others from performing it. Thus[,] they retain[ed] complete control over the rights granted by the Copyright Act: to prohibit display, performance, reproduction and distribution. Id. at 447. The Sixth Circuit summarily adopted the reasoning of the district court in Allied Artists I and held that “state trade regulation[,] which affect[ed] distribution procedures and, indirectly, monetary returns from coрyright property,” was valid, both “explicitly and implicitly by the terms of the Copyright Act.” Allied Artists II, 679 F.2d at 662–63.
Allied Artists I & II are factually distinguishable from this case. The Ohio laws at issue did not mandate that copyright owners offer to license their copyrighted work. Rather, they regulated the manner of distribution after the copyright holder made the initial decision to distribute. The State argues the Maryland Act, like the Ohio laws, “only affect[s] copyright holders who wish to license” their electronic literary works to the public. ECF 10-1, at 28–29; see Allied Artists I, 496 F. Supp. at 447. This argument elides a critical distinction between the laws: The Ohio laws regulated distribution procedures by requiring a performance of the work before exhibitors as a condition to the distribution of films, after the decision to distribute was made. Here, in contrast, the Maryland Act does not regulate the terms and conditions of distribution of ebooks and audiobooks to libraries only after the publishers have decided to license to libraries. The Maryland Act forces publishers to offer to license to libraries—whether they want to or not.
Allied Artists I & II, moreover, are consistent with Orson. In Orson, the Third Circuit explained that the preempted provision, § 203-7, was part of a larger regulatory scheme in Pennsylvania that prohibited blind bidding and other similar trade practices corrupting the film distribution industry, much like the Ohio laws upheld in Allied Artists I & II. Orson, 189 F.3d at 383–85. The court held that “[t]hese market regulations . . . d[id] not create a preemption issue because they only touch[ed] copyrighted works indirectly, if at all.” Id. at 385. Citing Allied Artists I and Allied Artists II, the Third Circuit contrasted the lawful market regulations aimed at combating unfair trade practices in the film distribution industry with the unlawful provision in the Pennsylvania law that interfered with a copyright holder‘s exclusive right to distribute. Id. at 384–85. Thus, the holdings in Allied Artists I and Allied Artists II are consistent with Orson and the Court‘s decision here.
Finally, the State argues that the Maryland Act is a proper exercise of its power to protect its public libraries from unfair trade practices and that, by enacting the Act, Maryland sought to “rectify the imbalance prompted by the digital revolution and the consequent exploitative tactics used by some publishers to limit libraries’ access to digital media.” ECF 10-1,
Ultimately, the Court finds that the fundamental principles underlying this case are the same as those in Orson. “[T]he [S]tate may not mandate distribution and reproduction of a copyrighted work in the face of the exclusive rights to distribution granted under § 106.” See Orson, 189 F.3d at 386. That is essentially what the Maryland Act does. The Act‘s mandate that publishers offer to license their electronic literary products to libraries interferes with copyright owners’ exclusive right to distribute by dictating whether, when, and to whom they must distribute their copyrighted works. Accordingly, the Court finds that the Maryland Act likely stands as an obstacle to the accomplishment of the objectives of the Copyright Act and that it is likely preempted under the Supremacy Clause.4
B. Likelihood of Irreparable Harm
To satisfy the second requirement for preliminary injunctive relief, a plaintiff “must make a clear showing of irreparable harm[,] and the required irreparable harm must be neither remote nor speculative, but actual and imminent.” Scotts Co. v. United Indus. Corp., 315 F.3d 264, 283 (4th Cir. 2002); Direx Israel, 952 F.2d at 812 (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)). The harm also must be more than a mere possibility; it must be likely. Winter, 555 U.S. at 22. A plaintiff seeking a preliminary injunction “must overcome the presumption that a preliminary injunction will not issue when the harm suffered can be remedied by money damages at the time of judgment.” Di Biase, 872 F.3d at 230 (citing Hughes Network Sys., Inc. v. InterDigital Commc‘ns Corp., 17 F.3d 691, 693 (4th Cir. 1994)). Phrased differently, “the harm must be irreparable, meaning that it ‘cannot be fully rectified by the final judgment after trial.‘” Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by Sandra Townes Powell, 915 F.3d 197, 216 (4th Cir. 2019) (quoting Stuller, Inc. v. Steak N Shake Enters., 695 F.3d 676, 680 (7th Cir. 2012)).
AAP argues it has established irreparable harm merely by showing a likely violation of the Supremacy Clause and cites Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F.4th 330 (4th Cir. 2021), for support. The Court is unpersuaded. In Leaders of a Beautiful Struggle, the Fourth Circuit considered a Fourth Amendment challenge to Baltimore
In another preemption case, the Fourth Circuit analyzed the likelihood of irreparable harm by considering the practical effects of the state laws on the plaintiffs. See South Carolina, 720 F.3d at 533. In South Carolina, the Fourth Circuit affirmed an injunction against South Carolina laws that provided for state prosecution of state law immigration offenses. Id. The Fourth Circuit approvingly cited the district court‘s reasoning with respect to the irreparable harm caused by the state laws and held “[t]he irreparable injury to the nation‘s foreign policy if the relevant sections [took] effect ha[d] been clearly established by the United States.” Id. (citing United States v. South Carolina, 840 F. Supp. 2d 898, 924–27 (D.S.C. 2011)). In discussing the irreparable injury to the United States’ foreign policy, the district court credited government statements that permitting the continued operation of the
In preemption cases outside the Fourth Circuit, courts have similarly analyzed irreparable harm by considering the challenged state laws’ practical effects on the plaintiffs. In Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013), thе Ninth Circuit upheld a preliminary injunction where federal law likely preempted an Arizona statute that attempted to criminalize the harboring and transporting of unauthorized aliens and the plaintiff “demonstrated a credible threat of prosecution under the statute and the organizational plaintiffs [showed] ongoing harms to their organizational missions as a result of the statute.” And in Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 771 (10th Cir. 2010), the Tenth Circuit found irreparable harm where compliance with Oklahoma laws that regulated illegal immigration through employment practices would have caused the plaintiffs financial harm that could not have been redressed because “Oklahoma and its officers [were] immune from suit for retrospective relief.” Additionally, the Tenth Circuit observed that, should the plaintiffs have refused to comply with the laws, they faced investigation, liability for certain practices likely improperly banned by the laws, and debarment from public contracts. Id.
With these principles in mind, the Court finds AAP has clearly established its members likely will suffer irreparable harm if the Maryland Act is not enjoined.7 Absent an injunction, publishers have three courses of action—each of which would cause harm to AAP‘s members that could not be adequately remedied by money damages at the end of this litigation.
First, publishers could elect not to offer to license electronic literary products to the public at all, thereby avoiding the reach of the statute. To achieve this, publishers would have to refrain from offering their products online entirely. This is because the Maryland Act is triggered by merely offering to license to “the public”
Second, publishers could exercise their right not to distribute their copyrighted work by refusing to offer to license electronic literary products to libraries even after they offer to license the same products to the public. This conduct would violate the Act. As a result, publishers could face steep civil penalties—a possible $10,000 fine for the first violation and a potential $25,000 fine for each subsequent violation—and even criminal penalties, including a $1,000 fine and up to one year in jail. Quantifying damages resulting from a criminal prosecution would be nearly impossible.
Third, publishers could acquiesce to a forced licensing transaction with libraries on terms that the libraries—and the State‘s attorneys enforcing the Act—deem reasonable. If a publisher and library are able reach an agreement on “reasonable terms,” it would be very difficult, if not impossible, to ascertain the full extent of the publisher‘s damages if the Act is later struck down. While the Act states the terms of a license “may include” limitations favorable to publishers—such as limitations on the numbеr of simultaneous users and the number of days a user may access the ebook—the Act compels publishers to offer to license to libraries as many copyrighted works as the libraries desire.
The Court finds AAP has shown that its members likely will suffer irreparable harm if the Maryland Act is not enjoined.
C. Balance of the Equities and the Public Interest
The Court considers the last two factors in tandem becаuse “the balance of the equities and the public interest . . . ‘merge when the Government is the opposing party.‘” Antietam Battlefield KOA v. Hogan, 461 F. Supp. 3d 214, 242 (D. Md. 2020) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). As to the balance of the equities, “courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.‘” Winter, 555 U.S. at 24 (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)). When considering the public interest, the Court “should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Id. (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).
The State and the public have no legitimate interest in the operation of a state law that is likely preempted by federal law. When federal law preempts conflicting state law, the state law “constitutes an unconstitutional obstacle to federal law” in violation of the Supremacy Clause. United States v. Alabama, 691 F.3d 1269, 1281 (11th Cir. 2012); Perez, 402 U.S. at 656; Crosby, 530 U.S. at 388 (holding state law preempted by federal law was “unconstitutional, under the Supremacy Clause“). A state “is in no way harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likеly to be found unconstitutional. If anything, the system is improved by such an injunction.” Leaders of a Beautiful Struggle, 2 F.4th at 346. AAP‘s members, on the other hand, likely will be irreparably harmed if the Maryland Act is not enjoined.
The State argues the public interest would be served by allowing the law to remain in effect because doing so will enlarge public access to electronic literary products through public libraries. Should an injunction issue, the State argues, Marylanders—especially the elderly, homebound, and visually impaired—would face hardship without access to those literary works. In response, AAP claims that digital lending in public libraries, including Maryland public libraries, was alive and well before the Maryland Act took effect. Indeed, the State reported that “[i]n fiscal year 2020,” the year before the Act took effect, “Maryland libraries held 4,733,755 e-books and saw a 31% increase in customer access to digital materials.” ECF 10-1, at 24.
Having considered the competing arguments, the Court finds that the balance of the equities tips in favor of AAP‘s members and that the public interest would be better served by allowing publishers to fully exercise their exclusive rights protected by the Copyright Act until the constitutionality of the Maryland Act is finally adjudicated.
IV. Conclusion
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. Congress has underscored the significance of libraries and has accorded them a privileged status on at least one occasion, legislating an exception to the Copyright Act‘s regime of exclusive rights that permits libraries to reproduce copyrighted material so it may be preserved in the public record across generations. See
Plaintiff‘s motion for a preliminary injunction is granted. A separate Order will issue.
Date: February 16, 2022
Deborah L. Boardman
United States District Judge