Category Archives: Blog

Authors Alliance Signs on to Letter Opposing SMART Copyright Act of 2022

Posted March 30, 2022
Photo by Chang Duong on Unsplash

Yesterday, Authors Alliance joined 31 other organizations and individuals in alerting members of Congress about serious problems with the new proposed Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022. Authors Alliance previously voiced our disapproval of the proposal for the simple reason that it would not serve the interests of all authors, including many of our members. In a letter addressed to Senators Patrick Leahy and Thom Tillis, the bills’ sponsors, the signatories explained why the SMART Act is problematic and would not serve the creators that copyright is designed to protect. You can find the full text of the letter here.

First, the letter explains that the changes the bill would make to the Digital Millennium Copyright Act (“DMCA”) would narrow the scope of “safe harbors,” which limit an online service provider’s copyright liability for the infringing activity of users. This is because standard technical measures could be required under the SMART Copyright Act in order for online service providers to maintain this limitation on liability. DMCA safe harbors are considered by many to be essential for fostering innovation and creativity online, and eroding these safe harbors threatens to “inject uncertainty into a law that has . . . supported creators, rightsholders, consumers, and online service providers of all kinds.”

Second, the letter points out that mandating designated technical protection measures for online service providers, as the bill contemplates, is beyond the Copyright Office’s expertise, as it would “transform[] [the Office] into an Internet regulator with responsibility for overseeing an elaborate, multi-agency bureaucratic process.” The Copyright Office as reimagined by the SMART Act would have very broad authority over online speech, an area that is also not within its traditional sphere of expertise. While the SMART Copyright Act would also add a new “Chief Technology Advisor” to the Copyright Office, this is not enough to overcome the Office’s limited expertise in this area.

Lastly, the letter argued that mandating designated technical protection measures is not needed to combat copyright infringement online. Digital service providers are already “fine tuning their voluntary efforts to combat infringement online . . . and they have done so with tremendous success.” The SMART Copyright Act would have the effect of “freez[ing] these efforts” for years at a time because it envisions a triennial process, similar to the triennial rulemaking for exemptions to the DMCA’s prohibition on breaking digital locks. Malicious infringers could quickly find workarounds for the mandated designated technical protection measures, and service providers would be unable to alter their technical protection measures to prevent such infringement if these were government mandated, as the SMART Act proposes.

Authors Alliance will be monitoring the progress of the SMART Copyright Act of 2022 and will keep our readers appraised of any new developments.

Authors Alliance Opposes the SMART Copyright Act of 2022

Posted March 22, 2022
Photo by Masaaki Komori on Unsplash

Last week, Senators Thom Tillis and Patrick Leahy introduced new legislation regarding technical protection measures used to protect copyrighted works online, entitled the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022. This new legislative proposal represents the latest in a multi-pronged effort to fortify protections for copyrighted works online (coming on the heels of the Copyright Office’s recent notice of inquiry about the development of technical protection measures, about which Authors Alliance submitted a comment). If passed, the SMART Copyright Act of 2022 would establish a procedure for the Librarian of Congress to designate standardized protection measures (“STMs”) to be adopted by online service providers. 

Authors Alliance strongly opposes the SMART Copyright Act of 2022. By requiring that digital platforms and service providers implement technical protection measures which could monitor content uploaded by users, the SMART Copyright Act of 2022 could lead to content “filtering mandate[s]” interfering with authors’ and other creators’ abilities to speak freely online. Authors and creators are the parties that copyright law is designed to protect, making the proposal one that is inconsistent with the very purposes of copyright. 

The SMART Copyright Act of 2022 would enable the Librarian of Congress to designate STMs to be implemented across industries, supposedly based on input from a diverse group of stakeholders. While the bill’s sponsors claim that the legislation “ensures that any designation of existing measures requires input from all stakeholders and assessment of public interest considerations,” it is telling that groups representing the content industry have praised the proposed legislation, while proponents of fair use and the free exchange of knowledge have opposed it. Even if the Copyright Office were to develop STMs that reflect a broad consensus across a diverse group of stakeholders, this would leave out the stakeholders who do not favor the widespread implementation of STMs in the first place (like Authors Alliance). Mandating that service providers use content moderating technology would impede the free flow of information and would not serve the interests of authors and creators who prioritize seeing their works reach wide audiences. 

To make matters worse, it is unclear that the Copyright Office possesses the technical expertise to evaluate and implement STMs. While the bill contemplates a new Chief Technology Officer within the Copyright Office to help develop such expertise, historically, the Copyright Office has not demonstrated that it has the technical expertise to wade into and settle questions about technical, complicated matters such as STMs. 

In the words of Public Knowledge policy counsel, Nicholas Garcia, “this proposal ​​would be disastrous for a free, creative, and culturally rich internet. Unfortunately, the SMART Act is anything but.” Because 2022 is an election year, it has been speculated that the SMART Act of 2022 is unlikely to pass during this legislative session. And Senator Leahy is planning to retire at the end of his term, meaning that Senator Tillis would need to find a new co-sponsor for the bill in future legislative sessions were to be reintroduced. Authors Alliance will be monitoring the bill’s progress, and will keep our readers informed about any further updates.

Digital Preservation, Banned Books, and Controlled Digital Lending

Posted March 16, 2022
Photo by Freddy Kearney on Unsplash

Authors Alliance thanks our research assistant, Derek Chipman, for his contributions to this post.

Recently, it was revealed that a school board in Tennessee had banned the Pulitzer Prize-winning graphic novel Maus, a work about the Holocaust, from being studied in the district. The news was met with outcry by many in the knowledge ecosystem and education communities, and, perhaps unsurprisingly, interest in the book soared in a version of the phenomenon known as the Streisand effect. Some readers interested in Maus accessed the work using the Internet Archive’s controlled digital lending platform. Then, the work’s publisher’s asked the Internet Archive to remove Maus from digital circulation, apparently motivated at least in part by a desire to maximize profits. Libraries are essential for preserving our cultural heritage and vital to the preserving right to read, and digital libraries are no exception. Limiting access to knowledge by removing books from library shelves spurs every-day people into action, including high school students. This shows preserving the right to read, including the right to read works that have been banned from some uses, is an issue near and dear to the hearts of many. So why then have efforts to preserve banned books in digital libraries been met with resistance?

Digital libraries like the Internet Archive preserve and loan works, including banned books, via controlled digital lending, or CDL: a program by which physical books are purchased and scanned, whereupon the scan is available to borrow in place of the physical book. CDL loans come with strict time limits, just like traditional print lending, and a library is only permitted to loan out the number of digital copies matching the number of physical copies in its collection (known as the “owned-to-loaned” ratio). CDL is considered to be a fair use within many library communities, and it is an increasingly common practice for libraries. But publishers have taken aim at CDL in recent years, issuing statements against CDL and initiating a lawsuit against the Internet Archive opposing the practice.

It is important to note that the Internet Archive’s CDL program allows a rightsholder to opt out and request that their work not be made available via CDL, regardless of the motivation for doing so. While the Internet Archive understood the publisher’s motivation to be a desire to profit from Maus‘s renowned popularity, the publisher argued that its request was based on the author not authorizing digital editions of the work in the first place. Regardless, these issues shows that CDL is not a perfect tool for ensuring access to banned books. Still, efforts to preserve books in digital libraries when they are banned, and make them available to borrow via CDL where possible, as the Internet Archive did here, are commendable, and these efforts help keep culture and knowledge from disappearing into obscurity.

In general, digital libraries and controlled digital lending present exciting opportunities for authors who wish to see their works be read by the broadest possible audiences. The internet has been a vital tool that has allowed readers globally to evade censors and access knowledge freely, and digital libraries provide an important means of achieving this. However, the digital age also comes with unique challenges. If digital libraries were to cease operations, certain “born digital” works could be lost forever in a handful of years due to internet decay and format obsolescence, in what some digital preservationists call a “digital dark age.” As history has shown, industry efforts at self-preservation can be disastrous, with movies being forever lost to history in the 1937 Fox Fire and 1967 MGM Fire or music recordings lost forever in the more recent 2008 Universal Fire. Storing everything in one physical vault can lead to catastrophic loss and to adequately preserve our culture and allow for equitable access, and consequently, we should be encouraging the growth of digital libraries and their efforts at preservation.

Unicolors v. H&M: The Supreme Court Tackles Legal Errors in Copyright Registration Applications

Posted March 8, 2022
Photo by Andre Benz on Unsplash

On February 24, the Supreme Court issued a decision in Unicolors v. H&M, a case concerning copyright registration and legal errors made in applications for copyright registration. In the case, Unicolors, a fabric design firm, sued H&M, a popular clothing retailer, for infringing its copyright in certain fabric designs. In response, H&M asserted that Unicolors did not hold a valid copyright in the designs since there were legal errors in its copyright registration application. Specifically, Unicolors had registered multiple works in a single application under a regulation requiring that those works be used “in the same unit of publication,” but then made the different fabric designs from the group application available separately. While registering a copyright is not necessary in order to obtain copyright protection, it is required that a copyright holder register her copyright in order to bring a civil action for infringement, as Unicolors had done here. An appeals court had found that the legal error made in Unicolors’s application invalidated its copyright registration, making it unable to sue for infringement, but the Supreme Court overturned this finding, paving the way for Unicolors to pursue its infringement action.

U.S. copyright law already permitted registration applications to be treated as valid when there are inadvertent factual errors in the application, but the question of whether inadvertent legal errors could invalidate a registration was one of first impression for the Court. In a majority opinion by Justice Breyer, it held that inadvertent legal errors on copyright registration applications are excusable and do not invalidate the registration. Instead, the Court found that “actual knowledge” of the legal error(s) on copyright registration applications was needed in order to invalidate the registration. Therefore, Unicolors’s legal errors on its application for copyright registration, which were not made with actual knowledge, did not invalidate its registration, making its copyright valid. While all of this may seem to fall squarely into the realm of arcane technicalities, it is worth noting that the Supreme Court does not tackle many copyright issues. This new decision by the country’s highest court reminds us that copyright law is subject to judicial interpretation at all levels rather than being fixed and inflexible. 

While some commenters have argued that the case will have little relevance going forward, since it concerned a very narrow question, Unicolors’s attorney called the decision “a big win for artists and poets,” as these creators “can now enforce their copyrights without fear that blatant infringers will skate on a technicality[.]” Indeed, by finding legal errors in registration application to be excusable when they are not made knowingly, the Supreme Court may make it harder for parties to challenge copyright ownership based on errors made in registration in order to escape liability for infringement. Less sophisticated parties—like individual creators—are perhaps more likely to make innocent errors in copyright registration applications. Whether this case will prove to be a “win” for creators is unknown, but Authors Alliance will keep our members and readers apprised about further developments as lower courts apply and react to this new principle.

Fair Use Week 2022: Resource Roundup

Posted February 28, 2022
Photo by Aditya Saxena on Unsplash

Authors who want to incorporate source materials into their writings with confidence may find themselves faced with more questions than answers. What exactly does fair use mean? What factors do courts consider when evaluating claims of fair use? How does fair use support authors’ research, writing, and publishing goals? Fortunately, help is at hand! This Fair Use/Fair Dealing Week, we’re featuring a selection of resources and articles to help authors understand and apply fair use. We also encourage our readers to check out the Fair Use week compilation of resources for more information about fair use in general.

Fair Use 101

Cover of the Fair Use Guide for Nonfiction Authors

Authors Alliance Guide to Fair Use for Nonfiction Authors: Our guidebook, Fair Use for Nonfiction Authors, covers the basics of fair use, addresses common situations faced by nonfiction authors where fair use may apply, and debunks some common misconceptions about fair use. Download a PDF or purchase a copy today.

Authors Alliance Fair Use FAQs: Our Fair Use FAQs cover questions such as:

  • Can I still claim fair use if I am using copyrighted material that is highly creative?
  • What if I want to use copyrighted material for commercial purposes?
  • Does fair use apply to copyrighted material that is unpublished?

Codes of Best Practices in Fair Use: The Center for Media and Social Impact at American University has compiled this collection of Codes of Best Practices in Fair Use for various creative communities, from journalists to librarians to filmmakers.

Don’t miss the latest best practices document, the Code of Best Practices in Fair Use for Open Educational Resources. This document is intended to support authors, teachers, professors, librarians, and all open educators in evaluating when and how they can incorporate third party copyright materials into Open Educational Resources to meet their pedagogical goals.

Fair Use Evaluator Tool: This tool, created by the American Library Association, helps users support and document their assertions of fair use.

Dig Deeper

U.S. Copyright Office Fair Use Index: The U.S. Copyright Office maintains this searchable database of legal opinions and fair use test cases.

Fair Use Litigation: Learn about two major fair use decisions from 2021 and how they might affect the fair use doctrine in the future.

Fair Use and Text Data Mining: Learn about Authors Alliance’s new DMCA exemption for Text Data Mining, and explore the intersection of fair use and non-consumptive text mining in this chapter on legal issues in text data mining.

Fair Use and Third-Party Permissions: Check out Authors Alliance’s new guide to clearing third-party permissions for a discussion of when using excerpts from others’ work in your own might constitute fair use (and much more!).

Fair Use and Controlled Digital Lending: Read about why we believe Controlled Digital Lending (“CDL”) is supported by a good faith interpretation of fair use, and take a moment to share how CDL has helped you meet your goals for your work.

Update: Latest Developments in the Maryland E-Lending Bill Lawsuit

Posted February 16, 2022
Photo by Perfecto Capucine on Unsplash

We are grateful to Authors Alliance’s research assistant, Derek Chipman, for authoring this post.

The legal battle about Maryland’s e-book lending law continued January 28th as the Association of American Publishers (AAP) replied to the state of Maryland’s motion to dismiss its suit. Authors Alliance has covered Maryland’s e-book lending law and the ensuing litigation previously, but to recap: the law would require publishers who license e-books to consumers in Maryland to also offer a license on “reasonable terms” to public libraries in the state. This law and other proposed state laws like it were motivated in part by the fact that libraries are often charged much higher prices than consumers for digital literary products. Before the Maryland law took effect on January 1st of this year, the AAP promptly filed suit to block it. In today’ blog post, we will summarize the latest filings in this lawsuit, which Authors Alliance has been following closely.

In its lawsuit, the AAP seeks a declaratory judgement that Maryland’s e-book lending law is preempted by federal copyright law as well as a temporary and permanent injunction to stop its enforcement. See our recent blog post for a thorough explanation and analysis of the AAP’s preemption argument. AAP’s most recent filing is a reply is to a motion filed by the State of Maryland on January 14th that sought to have the lawsuit dismissed.

Maryland’s motion to dismiss mainly focuses on framing the bill as a “modest” consumer protection law that does not conflict with federal copyright law. The motion to dismiss focuses on Maryland’s legitimate power to regulate market practices within the state and disagrees with the AAP’s argument that the law functions as a “compulsory license” that runs afoul of the right granted by the federal government to copyright holders. It argues that the bill only requires publishers to “offer to license” e-books to Maryland libraries and does not give libraries any right to dictate terms. Maryland seeks to establish that there is no conflict or inconsistency between copyright law and its e-book lending bill, stating that the bill only seeks to prevent some publishers from “capitalizing on the digital revolution at libraries’ expense.” Maryland further states the bill is consistent with the Copyright Act, working to ensure “that publishers and libraries work together toward mutually acceptable license [terms].” If the judge in the case grants Maryland’s motion, the case and its bid for an injunction would be dismissed, though the AAP could appeal such a ruling.

The AAP’s reply on the other hand, doubles down on its preemption argument and argues that the court should not grant the motion to dismiss and should instead temporarily block the bill from taking effect. The AAP argues that the e-book marketplace is working fine and what Maryland characterizes as “exploitative practices” are standard practices developed over decades by those exercising their exclusive rights under copyright law. The AAP argues that Maryland is attempting to “get more for less” and that the law functions as a compulsory license that infringes on a rightsholder’s right to refrain from entering into commercial transactions (the decision not to grant a license). The AAP further argues that the issue of equitable access is irrelevant and only used by Maryland to “justify an unrelated, preempted, and unconstitutional legislative effort.” The AAP argues that its arguments are strong enough to warrant the extraordinary measure of a preliminary injunction, which would block the law from taking effect while the lawsuit proceeds.

Since the motion and reply were filed, the parties participated in a virtual hearing last week, and Judge Deborah L. Boardman is expected to reach a decision on the AAP’s motion for a preliminary injunction soon. In the hearing, the parties reiterated the arguments made in their briefs. Maryland’s assistant attorney general argued that the statute sought to seek a balance between the interest of rightsholders and the need for equitable access to digital literary products. AAP’s counsel, on the other hand, persisted in arguing that this state legislation intruded into the role of the Congress in establishing U.S. copyright law.

Public-minded authors may find these proceedings and their outcome important, as the lawsuit showcases the tension between libraries and publishers over e-book licensing and equitable access. Authors who want to see their works reach the broadest possible audiences may be surprised to learn how difficult it can be for libraries to acquire digital versions of works compared to physical copies. The legislative efforts by some states are also motivated by the difficulties arising from access to libraries and the increased recognition of the importance of digital mediums since the onset of COVID-19. The outcome of this case could either embolden or weaken equitable access efforts nationwide, as it will inevitably influence how legislators perceive whether such bills are preempted, like the Governor of New York’s veto of a similar bill. While the equitable access argument was dismissed in the AAP’s reply, it was a driving force behind Maryland’s bill and an important issue for authors who want to be read as widely as possible. Authors Alliance will continue to monitor the litigation and provide further updates as the case moves forward.

Authors Alliance Submits Comment to Copyright Office Regarding Technical Measures to Protect Works Online

Posted February 10, 2022
Photo by sarina gr on Unsplash

This week, Authors Alliance submitted a comment to the Copyright Office in response to its recent notice of inquiry (“NOI”) regarding the development of technical measures used to identify or protect copyrighted works available online. Analogous to digital watermarks, these measures can be used by rightsholders to block or limit access to a work or onward uses of that work. In its NOI, the Copyright Office asked stakeholders to comment on their experience with and views on these technical measures.

Authors Alliance’s comment focused on the interests of authors who are not served by the widespread deployment of technical measures to protect works online. Many authors make their own works available on an open access basis without the use of technical measures to block access or onward uses, and the choice to not employ technical measures helps these authors reach their dissemination goals. Moreover, existing technical measures already hamper many authors’ ability to make fair uses of works available online. Authors Alliance emphasized this in our comment in order to show that additional technical measures, or more burdensome measures, would make this situation even worse.

Finally, we argued in our comment that the development of technical measures to protect copyrighted works online should be a process that incorporates the different views of diverse stakeholders. Oftentimes, proponents of stronger technical measures are the loudest voices in this conversation, steering the outcome toward fortifying these measures and leaving out the community of organizations, institutions, and users who do not favor stronger technical measures. We explained that technical measures should be technically neutral and voluntarily adopted in order to be fair to all of these parties.

The Copyright Office has also signaled that this will not be the last investigation into technical measures: in the coming months, it will open a second call for comments about the standardization of these technical measures deployed by rightsholders. We will keep our readers appraised of further developments as the process moves forward.

Read our full comment here.

The Public Domain and New Translations

Posted January 31, 2022
Photo by Scott Carroll on Unsplash

As we round out January and the celebration of new works entering the public domain this year, Authors Alliance is pleased to bring you this post on a specific type of derivative work based on a work in the public domain: new translations of familiar stories. We are grateful to Authors Alliance’s research assistant, Derek Chipman, for authoring this post.

Public Domain

Earlier this month, we celebrated the latest trove of literary works entering the public domain, including Austrian author Felix Salten’s Bambi, a Life in the Woods. Written in German in 1923 and published in English translation in 1928, this celebrated coming-of-age nature novel, the basis for the popular Disney film, is now free for authors to use in any way they wish. However, it is important to note that translations are considered derivative works which are subject to copyright protection in their own right—while the original German Language text is now in the public domain, the 1928 English translation by Whittaker Chambers will not enter the public domain until 2024, since it was published two years after the original German. Similarly, the 1942 Disney film is also a derivative work with its own term of copyright protection and will not enter the public domain until 2037, including characters unique to the film adaptation like Flower the skunk. For more information about the public domain and derivative works, see our post on the topic from last year.

Translations and Copyright

So, what does all of this mean for authors and the public at large? It means that they can now freely access and download the original German text, but will have to provide their own translation or wait for a non-copyrighted translation in their preferred language if they wish to use the text in a language other than German. However, authors are still free to use the ideas and themes of the textual work, as these types of information are not protected by copyright. This also means that publishers will no longer have to pay the copyright holder when publishing a new translation of Bambi, a Life in the Woods, potentially increasing access to the work.  For instance, this year, Jack Zipes has provided the first new available English translation since 1928 entitled The Original Bambi. Now, other translators can also translate the German original into English, or whichever language they choose, without having to obtain permission. 

Why is This Important?

Translations of literary works enable these works to reach a wider audience and expose cultural works from different languages to readers. Different translations also lead to different interpretations of a work, and this can add cultural value to the work by situating a work in our time, like a recent new translation of Beowulf beginning with “Bro!” In the case of Bambi, Zipes claims that his new version affords the reader a translation closer to the original German, which many readers may find surprisingly more violent and dark than the original Chambers translation. Zipes states that his knowledge of Austrian German captures the dark and existential nuance of Salten’s language in the original work and that the 1928 translation contained errors that contributed to the “later misinterpretation of the Disney film.” However, at least one critic still prefers the 1928 translation, showing that different translations provide readers with more options to enjoy public domain works. New translations can add something new to the work and contribute to our cultural commons, complicating our understanding of existing literary works. Now that Bambi, a Life in the Woods freely roams the public domain, we hope our readers explore it to find new sources of inspiration.

Guest Post: The Constitutionality of Library E-book Licensing Legislation

Posted January 25, 2022
Person lying on a bright pink and red hammock holding an e-book reader
Photo by Perfecto Capucine on Unsplash

The following blog post was authored by Becca Lynch, a student clinician with the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado Boulder under the supervision of Professor Blake Reid, as part of an Authors Alliance student clinic project on library e-book licensing legislation.

Over the past year, various state bills have been proposed that would require publishers to license e-books to public libraries under “reasonable terms,” the most notable of which being the Maryland bill, which passed and was set to take effect on January 1, 2022.

As the pandemic has shown, the importance of public libraries cannot be understated. As a tax-funded institution created solely for public benefit, regulation of e-book licensing terms is important for the sustainability of libraries’ e-book lending. 

On December 9, 2021, the Association of American Publishers (“AAP”) announced its filing of a lawsuit attempting to keep the Maryland bill from taking effect, and on January 14, the state of Maryland asked the court to dismiss the lawsuit. As this bill is the only bill of its type currently set to take effect, the outcome of this lawsuit could trigger similar lawsuits against other such proposed bills, such as the one currently pending in Rhode Island. While New York passed a similar bill last year, Governor Kathy Hochul recently vetoed the bill, citing the possibility of preemption as a reason for doing so.

The primary component of AAP’s complaint against the Maryland bill is its supposed preemption. “Preemption” is a legal doctrine which applies to block state laws when those state laws are not compatible with federal law. But, contrary to both AAP’s complaint and the United States Copyright Office’s initial letter on the matter, a conflict preemption analysis (which applies when state and federal laws actually conflict) does not provide a clear answer, nor is the handling of conflict preemption by courts a straightforward matter.

Courts have used a wide range of possible approaches to preemption analysis in the context of federal copyright law, the primary ones being (I) a balancing test from a case called In Re Jackson when the state law is alleged to conflict with U.S. copyright law, (II) deference to certain state market interests, and (III) examination of physical impossibility of compliance with both federal and state regulations. As a result, understanding and predicting the analytical approach a judge may take based on those available is a rather complicated process.

The test from In Re Jackson involves balancing a state’s interests (distinct from the interests of copyright law) against the potential for conflict between the relevant state law and federal copyright law. Under this test, the more substantial the state law interest undergirding the state law, the stronger the case is to allow that right to exist alongside federal copyright law. Moreover, there needs to be additional evidence to show that a claim arising from violation of the state law is more than a simple copyright infringement claim in order for the state law to not be preempted.

Under the second approach, deference to state market interests, courts consider whether there are significant state market interests animating the state law. Courts tend to allow state regulations that are designed to ensure a fair market, while finding that copyright law preempts state laws which force a copyright holder to distribute and license her work against her will.

The third approach is one where courts find that federal copyright law preempts state law in situations where compliance with both state law and federal law is impossible. In this situation, since the state e-book licensing laws do not deprive the publishers of their exclusive right to license e-books, complying with both state law and federal copyright law is not impossible. The publishers retain their exclusive rights and maintain control over the decision to license e-books to the general public. Only upon exercising this right must they abide by the reasonable terms within the state licensing law. 

Maryland’s interests motivating its e-book licensing bills is simple, yet compelling: ensuring its citizens have access to culturally and socially significant creative works in the form of e-books. In addition, the law seeks to remedy an inequitable market situation by preventing publishers from abusing their market power to overcharge tax-funded public libraries. These interests are both substantial and distinct from those undergirding copyright law (which include, for example, incentivizing the creation of new creative works). The Maryland state bill would be enforced under state deceptive and unfair trade practice law, and as a result, the elements for bringing a claim under state law would contain much different elements than one under copyright law.

Ultimately, regardless of the analysis used, there is strong evidence that supports a finding that the e-book licensing bills are not preempted by federal copyright law under an implied conflict preemption analysis. 

Although this lawsuit is still in its early stages, Authors Alliance will be monitoring its progress and keeping our members apprised of updates in the case.

Authors Alliance Annual Report: 2021 in Review

Posted January 19, 2022

We are pleased to share the highlights of Authors Alliance’s work in 2021 to promote laws, policies, and practices that enable authors to reach wide audiences. Inside, you’ll find details about how we’re helping authors leverage their rights to make—and keep—their works available in the ways they want.

Click here to view the report in your browser.