Maryland House Bill 208 – VETO REQUEST
As a member of the Copyright Alliance, the Digital Media Licensing Association (DMLA) proudly joins with a broad coalition of organizations working to protect and strengthen copyright. Through this collaboration, we amplify the voice of our members in critical advocacy efforts, supporting initiatives that safeguard creators’ rights, promote fair licensing, and uphold the value of original content. By signing onto these actions, DMLA continues its mission to ensure that copyright protections remain strong, effective, and responsive to the evolving needs of the creative community.
April 17, 2025
via email
The Honorable Wes Moore
Governor of Maryland
Maryland State House
100 State Circle
Annapolis, MD 21401
RE: Maryland House Bill 208 – VETO REQUEST
Dear Governor Moore:
On behalf of the Copyright Alliance and its members, I write to respectfully oppose H.B. 208 (the “Bill”) and ask you to veto it. The Bill, which prohibits advertising or offering for sale a digital good unless certain conditions are met unconstitutionally interferes with the federal rights related to the digital reproduction, distribution, public display, and public performance of copyrighted works that creators and copyright owners are granted under the U.S. Copyright Act and is therefore preempted by that Act.
The Copyright Alliance is the unified voice of the copyright community, representing the interests of thousands of individual creators and organizations across the spectrum of copyright disciplines, including authors, photographers, performers, artists, software developers, musicians, journalists, directors, songwriters, game designers, and many others. We are dedicated to advocating for policies that promote and preserve the value of copyright and to protecting creativity and investments in the creation and distribution of new copyrighted works for the public to enjoy.
Millions of individual creators and small and large businesses throughout the United States rely on copyright law to protect their creative efforts and investments in the creation and distribution of new copyrighted works. It is essential that the copyright industries be able to recoup their investments in creative works to fund the next wave of investment, create and distribute quality content for the public to enjoy, and support the livelihoods of the millions of individuals these industries employ in the United States and in Maryland.
Copyright law incentivizes the creation of a wide variety of works and the dissemination of those works through diverse business models, which, in turn, increases competition and provides the greatest degree of choice for consumers. Competitive markets result in better products and services, as well as increased choices for consumers. But undue government interference with these markets has the opposite effect. Markets cannot remain competitive and efficient when state governments intervene in ways that unfairly or otherwise inappropriately favor certain types of business models, products, services, and providers over others. Such intervention discourages copyright owners from developing innovative business models and creates significant obstacles in their abilities to do so, which leads to fewer options for the public to access new and quality copyrighted works as products and services in the marketplace.
When state governments put their thumbs on the scale to favor certain business models or mandates the terms under which works are made available to the public, it undermines the constitutional purposes and goals of federal copyright law and destroys the existing incentives for copyright owners to create and disseminate a diverse array of creative works to the public.
The U.S. Constitution recognizes that creators’ contributions and investments and the public’s interest in accessing these works are best realized through the rights and freedoms afforded by copyright. State mandates and initiatives, like House Bill 208, severely upset the balance of public interests in allowing public access to creative works and rewarding the inspired efforts of their creators.
The Bill regulates “digital goods.” These digital goods are also copyrighted works, which are protected and regulated by federal law, the U.S. Copyright Act. Federal copyright law protects all types of creative works, many that fall directly within the scope of this bill. Under the U.S. Copyright Act, copyright owners are granted exclusive rights of reproduction, distribution, public display, and public performance of their works. 17 U.S.C. 106(1)-(6). Those rights apply in the digital world just as they do in the analog.
Not only does the Copyright Act specify the rights granted to copyright owners, it also specifies the exceptions and limitations to these rights. For example, the Copyright Act specifies when certain copyrighted works can be rented or repaired, when and how certain entities can reproduce and distribute certain types of copyrighted works without permission, and, most significantly with regard to House Bill 208, when and how particular copies of these works can be transferred. Not only are these rights and exceptions codified in U.S. copyright law, but they are also the subject of numerous international agreements that the United States adheres to.
House Bill 208 seeks to unconstitutionally regulate these rights by imposing restrictions on how copyrighted works are distributed, displayed and performed and by imposing limitations beyond those that are included in the Copyright Act. Since copyright is under the exclusive jurisdiction of Congress, legislation like this is inappropriate at the state level and, if not vetoed by you, would almost certainly be struck down on the basis of federal preemption. This is not conjecture. In February 2022, the U.S. District Court for the District of Maryland granted a preliminary injunction suspending a bill (Maryland bill H.B. 518) that similarly impinged on federal copyright law, finding that it was preempted by the U.S. Copyright Act.
For years, various organizations have unsuccessfully lobbied Congress to weaken federal copyright protections. Because Congress has not agreed that copyright should be weakened, these groups have now decided to circumvent Congress’ authority by lobbying state legislatures to enact the very same legislation that Congress would not. House Bill 208 is such a bill. It would make it unlawful to advertise or offer for sale a digital work with “buy,” “purchase,” or other terms understood to confer an “unrestricted ownership interest” in the digital work unless the seller provides to the consumer before executing each transaction a clear and conspicuous statement and receives an affirmative acknowledgment of terms. In copyright law, there is no such thing as an “unrestricted ownership interest.” For example, when someone buys a physical work, such as a book or DVD, (under section 109 of the Copyright Act, commonly referred to as the first sale doctrine), the copyright owner may not prohibit the further distribution or transfer of that particular book or DVD. However, the copyright owner may still prohibit an unauthorized reproduction or public performance of the book or DVD. Therefore, people who buy physical works do not have an “unrestricted ownership interest.” Similar restrictions are placed on those who purchase digital works. Thus, the underlying foundation on which House Bill 208 is based—that those who buy physical works have “unrestricted ownership interests” while those who purchase digital works do not—is built on a fallacy.
For the reasons explained above, the Copyright Alliance respectfully opposes the bill and urges you to veto it. Please do not hesitate to reach out to me you have any questions or would like to discuss further. Thank you for your consideration.
Respectfully Submitted,
Keith Kupferschmid
CEO
Copyright Alliance
1331 F Street, NW, Suite 950
Washington, D.C., 20004