In February, a federal court issued a preliminary injunction on a first-of-its-kind library eBook law, the Maryland Act, marking a momentary win for the plaintiffs, the Association of American Publishers (AAP).
The injunction follows a hearing where the AAP argued that the Maryland Act would’ve infringed upon publishers’ federal copyright protections, especially the exclusive rights publishers and authors hold under copyright law.
As reported by Publishers Weekly, the Maryland Act had required “that publishers offering eBooks to consumers in the state must also offer to license the works to public libraries on ‘reasonable terms.’”
In other words, if a publisher sold an eBook on Amazon or a similar store, then that publisher would’ve had to offer public libraries the opportunity to lend out electronic copies of their books, or else the publishers would’ve faced penalties, both civil and criminal. Currently, publishers have the discretion to not allow libraries to license their books electronically.
Despite the injunction, Maryland’s attorney general’s office plans to defend the Act in court. The Act was initially passed unanimously by the Maryland General Assembly in 2021 and went into effect on January 1, 2022.
The state argues that the Maryland Act is in the public’s interest, as it aims to support public libraries by addressing “the unfair and discriminatory trade practices of publishers at the expense of public libraries.”
The preliminary injunction signifies that the library eBook law may not stand. When determining if a preliminary injunction should be granted, a judge must evaluate four factors: “a likelihood of success on the merits; irreparable harm; winning the balance of equities; and that the injunction was in the public interest.”
As the court issued the injunction on behalf of the AAP, this suggests that the court likely deems that the law would’ve been harmful to publishers and that the AAP will likely succeed in getting the law struck down. Furthermore, the judge’s formal opinion states that the Maryland Act is probably a violation of federal copyright law.
The ramifications of this case will likely go beyond Maryland. As of late February, eight states have proposed bills similar to the Maryland Act, the latest being Connecticut. New York would’ve been the second state to put its own library eBook law into place if it weren’t for its governor’s veto. At the time, New York Governor Kathy Hochul expressed the AAP’s concern that the law would’ve violated federal copyright law.
So, what does this news mean for self-publishing authors? It depends on whether the law will survive court. As for now, the safest choice is to assume that the status quo will continue. Even if the Maryland Act doesn’t make it to the Supreme Court, a defeat in a lower court may deter other states from proposing and passing similar legislation.
It’s worth it for self-published authors to note that these laws are being proposed because large publishers have been stringent with making their books available electronically to libraries. For instance, Macmillan used to have an embargo on distributing eBooks to public libraries, a decision the publisher has since lifted.
Publishers also often demand high prices for licensing—which libraries find untenable—and they often refuse to negotiate licensing prices while imposing strict restrictions on lending.
Since big publishers license fewer eBooks and electronic copies to public libraries, self-publishers can benefit by seizing this gap. Self-published authors can license their books to public libraries through book distributors, the same services that allow authors to publish their books on multiple storefronts. Even with eBook formats, authors can still earn money when libraries obtain licenses.
On top of making their books available through lending services, self-published authors can also boost their discoverability by including bestselling books that are similar to their own in their book descriptions. This can work out to a small author’s benefit if the bestselling book isn’t available at the library, as the smaller book can still turn up in the library’s search results.
Separate from the legal merits of eBook library laws, large publishers seek to retain control of what eBooks they lend to libraries and how many. In this aspect, self-publishers can fill the gap left by these restrictions.