Category: Lit/Pub

Rare Books Publisher Valancourt Versus The Deposit Requirement

On July 23, the District Court for the District of Columbia denied publisher Valancourt’s claims that the requirement to provide deposit copies of U.S. published works to the Library of Congress constitutes an unlawful taking under the Fifth Amendment and/or an infringement of speech under the First Amendment. Although many legal experts are likely to agree with the outcome, some may also find the reasoning a little tortured, while at the same time, rightsholders may be made aware of an obscure but significant hypocrisy in the Library’s authority to demand deposit copies. Namely, that in certain cases, the copyright owner receives no benefit in return for compliance.

There is nothing new, of course, about the general requirement that copyright owners submit deposit copies in order to participate in the copyright system. Or to put it more philosophically, the tradition of supplying deposit copies, dating back to England’s Statute of Anne (1710), is grounded in copyright’s modern purpose to incentivize the creation and dissemination of cultural works. In the United States, this principle was most expansively adopted in the 1870 revision to the copyright law, which consolidated the registration process at the Library of Congress with the clear purpose of growing that collection.

Today, the Library of Congress contains the largest collection of works in the world, thanks in no small part to its statutory authority to demand deposit copies of any work published in the United States. And in most cases, the deposit copy requirement is not terribly burdensome for authors or publishers, especially when submitting digital copies along with a registration application to the Copyright Office.

Nevertheless, §407 of the copyright law, which empowers the Library, via the Copyright Office, to demand copies, and even penalize scofflaws, contains an inherent conflict because the mandate is not explicitly a condition for the rightsholder to avail himself of full copyright protection. For this reason, Valancourt Books’s complaint against the Copyright Office, while perhaps strained on constitutional grounds, highlights an uncommon, but significant question of justice.

Background

The niche publisher Valancourt Books was founded by James Jenkins in 2015 and is today operated solely by Jenkins and his husband Ryan Cagle. Together they edit or oversee the production of books from old, rare, and hard-to-find manuscripts—some dating back to the 18th century—which are printed on-demand for customers, including educational institutions. Although many of the works they republish are long in the public domain, the companion material in the Valancourt editions, like scholarly introductions and footnotes, are subjects of copyright; and some of the books they print are still under copyright protection and are, therefore, used by permission of authors or their estates.

Valancourt does not register its books with the Copyright Office—or at least it did not register the 240 titles at issue in this litigation—but it does voluntarily place notices of copyright in the front material. The reason for the notices appears principally to let readers know that either the underlying manuscript and/or supporting elements in the book are protected by copyright. Particularly in a case in which Valancourt has obtained permission for limited, on-demand publication of an out-of-print book, they would reasonably not acquire a traditional publisher’s license but would need to notify readers that the author or her estate still owns the copyright.

In 2018, Valancourt began receiving letters from Copyright Acquisitions Division (CAD) of the Copyright Office demanding deposit copies (the “two copies of best editions” as articulated by statute) of all 341 titles in its catalog. Requiring a print-on-demand niche publisher to supply 682 books at its own expense is a substantial burden, which the Copyright Office has discretion to limit upon a request for “special relief.” However, it was only after Valancourt challenged the demand through legal counsel that the USCO eventually reduced the number of titles to 240 and amended the deposit format it would accept to electronic copies.

Valancourt averred that even the demand for electronic copies was too burdensome for a small operation to access and, in some cases, update older files into compatible deposit formats. Whether this claim is reasonable—files dating back to 2015 should generally work today—Valancourt elected to go big by filing a lawsuit against the Copyright Office and the DOJ, alleging that the deposit demand itself, as codified in §407 of the copyright act, is unconstitutional.

The First Amendment Claim

With regard to Valancourt’s First Amendment claim, the publisher is probably out on a legal limb when it argues that “because only those publishers that receive a demand letter from the Copyright Office can be fined for noncompliance, and because the letters are not sent out at random, the deposit requirement is also a content-based restriction in practice.”

Here, the court finds that there is nothing in the record to indicate that the discretionary practices of the CAD makes content-based decisions as to which publishers it contacts to demand compliance with the deposit requirement. As such, nothing about the nature of Valancourt’s claim appears to implicate an infringement of the speech right. Nevertheless, Valancourt is probably justified in feeling somewhat picked on due to the fact that the LOC/USCO rarely make deposit demands relative to the volume of works produced in the U.S.

The Fifth Amendment Claim

Under the Fifth Amendment, the state may not take private property without due process, which most commonly applies to real property and compensation for the taking of same. But here the court leans on Ninth Circuit precedent in response to another deposit demand case, reiterating, “[t]here is no question but that the materials are private property and that deposit with the Library is for public use,” but “Congress can reasonably place conditions on the grant of a statutory benefit.”

That may sound reasonable on its face because we are accustomed to complying with certain conditions when accessing various services provided by a state or federal agency. But copyright is a funny animal in this regard, and especially tricky in Valancourt’s unusual circumstance. The first problem is that copyright is not a conditional “statutory benefit,” but rather a statutory bundle of rights that attach automatically to any subject matter work fixed in the U.S. after January 1, 1978. The next problem is that although copyright notices are not required by law or administrative function of the Copyright Office, Valancourt’s placement of notices was the factor on which the court’s opinion turned in rejecting the takings claim. Here, it agreed with defendants that the notices constitute “receiving the benefits of copyright,” which obligates plaintiffs to comply with the deposit copy condition. But what benefits does Valancourt receive?

The big condition with which most creators are familiar is registration, which is not mandatory, but is a prerequisite to filing a claim of infringement in federal court. And, of course, submitting deposit copies is a condition of registration, which is reasonable enough as a bargain, but here’s the rub …

Section 407 of the copyright act, which gives the Copyright Office the authority to demand copies (and solely for the benefit of the Library) has nothing to do with the registration formality, which avails the owner of the full opportunity to enforce a copyright in federal court. Simply put, the Library has the authority to demand copies of works published in the U.S. (or levy fines for failure to do so), regardless of the rightsholder’s choice to avail himself of the benefits of registration. And while this disconnect may rarely be a conflict, and may not ultimately be found to rise to the standard of an unconstitutional taking, the Valancourt example reveals that it isn’t exactly equitable either.

Especially in this circumstance, in which this niche, on-demand publisher is responsibly providing rare books that comprise a mix of public domain and copyrighted materials, it is not unreasonable for Valancourt to feel it is trapped between a rock and a hard place. Its modest operation unquestionably supports copyright’s purpose to promote the progress of science, arts, and culture, which is the foundational principle on which the Library is authorized to demand copies in the first place.

A Case Worth Watching

Whether Valancourt’s complaint that providing the electronic copies is too burdensome is a question of fact that may yet be determined, and the publisher seems likely to appeal for a few reasons. For one thing, although the district court responded generally that the government may make services and privileges conditional within constitutional bounds, it did not directly address the underlying evidence that Valancourt arguably receives no benefit for compliance with the deposit demand. And there are certainly legal minds who may be inclined to call this a taking.

Further, if the publisher can show that even the electronic deposit burden is greater than de minimis (i.e. that it would be profoundly detrimental to the business), this may bolster a taking allegation and also animate an argument that, in this case, enforcement of §407 undermines the purpose of copyright. Simply put, if Valancourt can show that it cannot operate—and by extension other small publishers to which it alludes in its filings—that would clearly defeat the purpose to promote.

Photo by: jannoon028

Library Associations Pursue Misguided eBook Licensing Laws

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Recently, the New York and Maryland state legislatures passed nearly identical eBook licensing bills (and Rhode Island had a sister bill in the works) responding to complaints of inequity by various library associations. Couched in the rhetoric of seeking “reasonable terms” on behalf of readers, and claiming to be neither anti-publisher nor anti-author, what the libraries have in fact advocated with these bills is an end run around copyright law. I say this because the key provisions of the legislation amount to state compulsory license regimes, which means they are almost certainly in conflict with federal statute.

The bills contain three mandates: 1) that publishers license eBooks to libraries at the same time they license them to the consumer market; 2) that publishers provide an unlimited number of licenses to libraries; and 3) that publishers make eBook licenses available “on reasonable terms.” While most publishers already choose to fulfill the first demand, the fact remains that any state law directing a publisher to make works available under any conditions undermines the exclusive rights of copyright owners as codified by federal law. Meanwhile, the ambiguity in the expression “reasonable terms” is likely to be a catalyst for a lot of unnecessary, and ultimately futile, drama related to these matters.

Although the state bills do not explicitly mention renegotiating licensing fees for libraries as a provision for arriving at “reasonable terms,” it is a matter of record that the library associations allege that library eBook licensing is too expensive. And it is clear from the press release issued by the Maryland Library Association that the libraries intend to negotiate lower licensing fees with the backing of state government, which begins to take on the color of a compulsory license regime, as stated above.

What the libraries will say in response is that they simply want eBooks licensed to them at the same rates as the consumer market, which is usually the point in the narrative when they introduce rhetorical statements about “fairness” and “access” and “underserved markets,” obfuscating the fact that eBook lending is objectively a different animal than eBook ­selling.

Buy a new eBook, and perhaps a whole family reads it for, say, $12. License that same eBook to a library system for the same price, and it is made freely available to perhaps hundreds of readers in a single year. It does not take deep knowledge of the publishing industry to see how those two paradigms are different. Now, add unlimited licensing on the day a title is released to the consumer market, and the publishers (and by extension authors) are being compelled by state law to effectively treat libraries as though they are ordinary consumers while, at the same time, accord them preferential treatment as public institutions designed for lending.

Consequently, we should not be surprised if the publishers litigate the constitutionality of these state bills on the grounds that they are preempted by federal copyright law. Section 106 of Title 17 unequivocally grants the exclusive rights to make works available on terms determined by the copyright owners. It is, therefore, almost impossible to imagine the federal court that will not find that state legislatures have no authority whatsoever to determine what constitutes “reasonable terms” for licensing copyrighted works to libraries or any other party.

The Politics of Information

Although these bills have solid bipartisan support in all three states for the moment, I suspect this has a more to do with the short-term politics of capitalizing on vague declarations like the Maryland Library Association alleging they “were shut out of the marketplace of ideas and information.” Assuming these bills are eventually defeated in federal court several years from now, I would not expect to see many of the legislators who voted for them losing any sleep over the issue. They will have scored political points and moved on.

And that brings us back to what I said at the beginning about how bewildering it is to watch library associations spend millions of dollars and tens of thousands of hours on potentially futile legislative agendas and, in the process, foster an antagonistic relationship with their only natural partners—publishers and authors. As a New York State resident, I would like to know exactly how onerous eBook licensing is relative to the resources being spent to lobby for these ill-fated state laws and similar initiatives.

And as an American citizen watching current events, I will unapologetically cast a jaundiced eye upon the libraries, or any other institution, that claims to serve the “marketplace of ideas and information” as a rationale for its policy agenda. In case the librarians aren’t following the headlines, ideas and information are in deep trouble, and not for lack of access. On the contrary, rampant conspiracy theories and absurd narratives counter to empirical evidence are being actively pursued and spread by tens of millions of Americans who have plenty of access and believe they are informing themselves. So, let’s drop the highfalutin rhetoric and talk brass tacks.

Libraries already license millions of eBook titles, including frontline and backlist books, and yet, according to market data, most avid readers still prefer buying physical copies. Moreover, library industry statistics indicate that the leading category in loaned material is cookbooks, followed by thrillers. Not that there is anything wrong with either, but libraries very likely play a more modest role in the “marketplace of ideas and information” than they like to claim while advocating changes to copyright law.

On this subject, if what many libraries are really responding to is that their most loyal visitors are complaining about being put on wait lists for the latest Harlan Coben thriller (meaning no disrespect to Mr. Coben), since when is this longstanding practice a hardship? At what point did libraries decide they are entitled to provide the immediate access offered by retailers while continuing to enjoy preferential treatment and statutory carveouts as institutions designed for free lending?

I think the answer to that is the moment everything went digital, the promise of instant access muddled everyone’s thinking and fostered a sense of entitlement to all works at the touch of a button, and at a price of free or almost free. Were this in fact the paradigm, it is a guarantee that certain authors would never write books again and that certain new authors would never write books in the first place.

Rightsholders in other categories (partly because libraries loan more than literary works through digital portals) should take note that these state bills are viewed by the library associations as one step in a larger agenda to amend—or for some parties, simply gut—American copyright law. As discussed in this post, the library groups hope to amend specific areas of the federal law while claiming that their agenda is neither anti-author nor anti-publisher.

But several of the proposals made by library associations (like advocating digital first sale) imply such a naïve understanding of the commercial digital market that they fail to recognize how, in the long run, the library advocates would only hasten the obsolescence of libraries themselves. So, perhaps the library associations’ resources would be better spent on renewed, good-faith negotiations with publishers, or, perhaps, collaborating to increase library funding. Because once upon a time, in a world before the invention of the eReader, publishers and libraries had mutual interests. And they still do.

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About Quoting Song Lyrics in Books

As a member of the Authors Guild, I occasionally peek at the discussion board, and any topics pertaining to copyright naturally get my attention. It appears that a common question among authors of both fiction and nonfiction is whether they may quote song lyrics in their books. Further, it seems that a typical experience for many writers is that they will seek permission to quote the lyrics, but upon doing so, are presented with licensing fees so high that they wind up removing the quotes from their manuscripts.

Don’t get me wrong. I am obviously an advocate of permission and licensing when appropriate. But quoting lyrics, or anything else, in a literary work at least implies a consideration of fair use, and it would be a shame if book authors consistently avoid perfectly good quotations for fear of being sued. So, with the understanding that fair use is a case-by-case analysis, I offer the following general thoughts (i.e. not legal counsel) for authors to consider, organized according to the four-factor fair use test.

Factor One – Purpose of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

Right off the bat, assume the purpose of your book is commercial. Do not fall into the trap of thinking that a textbook or guide to cheesemaking or whatever is “educational” in a fair use context and, therefore, not commercial. If it’s going to have a price tag on it, it’s commercial. If not, ask your attorney. Though this is not the primary consideration with regard to quoting lyrics.

More importantly, factor one of the fair use test happens to pose the first question that any author should ask herself when quoting lyrics in the first place:  Why am I doing it? Interestingly enough, the legal considerations here can be instructive to the writing. For instance, do you or your characters comment in some way upon the lyrics (e.g. their meaning, lack of meaning, cultural influence, loss of relevance over time, etc.)? If so, commentary is a paradigmatic purpose of fair use. So, if you (in a nonfiction work) or your character (in a fictional work) speculates as to whether there might be, say, euphemistic meaning in the lyrics of “Spaceball Ricochet” by T Rex, that purpose favors a finding of fair use.

A purpose that may be less favorable to a fair use defense would be a use in which you are over-reliant upon the lyrics to do the heavy lifting in your writing. For instance, if your characters enter a party and instead of simply writing, “Low was playing on the stereo,” you write out several lines of that song’s lyrics as a mood-setter (almost like a soundtrack in a film), the rightsholder of that song could argue that this not a fair use under factor one because you are relying on the songwriter’s expression without adding anything new like commentary. (I also just implicated factor three, but let’s not jump ahead.)

Factor Two – The nature of the copyrighted work.

At least with respect to the jurisprudence on copyright to date, factor two is very straightforward for the book author quoting song lyrics. Principally, this factor asks whether the work being used is expressive or informational. By definition, even the most informative jingle is expressive because lyrics are arranged in the form of verse. In a fair use analysis, this one likely goes to the songwriter every time, but since factor two is often treated like the red-headed stepchild of the fair use test (inappropriately so in many cases), it would likely be weighed as null with regard to quoting song lyrics in most cases.

Factor Three – The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

This would likely be the most important factor in a fair use consideration in this context, but may also be controlled by the fact that, as a writer, you probably do not want to quote too much of a songwriter’s work. While there is no standard percentage of copying that favors or disfavors fair use, the factors to consider are: how much you quote relative to the entire work, whether you quote the least amount necessary to your purpose, and whether you have quoted the “heart” of the work.

To expand on that, quoting a line or two from a typical song is very likely in your favor under factor three. But, going back to why you’re quoting the song in the first place, it is worth asking, both legally and creatively, whether you’ve quoted only the amount needed to meet that purpose. Finally, think of the “heart” of a song as the most widely recognizable aspect of it, which is often going to be the refrain or some portion of the refrain. That does not mean the heart of the work is off limits for fair use; but it is worth keeping in mind that you could copy the heart of a song with a relatively short quote.

Factor Four – The effect of the use upon the potential market for or value of the copyrighted work.

Good news! Just like factor two would almost always favor the songwriter, factor four almost always favors you. In fact, it is nearly impossible to imagine how quoting lyrics in a book could serve as a market substitute, or otherwise harm the value, for a license in a song. But do not confuse “harm the value” with “adverse effect” on the market for the original work. You could write a scene in a book in which you quote a lyric and comment upon it in a way that harms market interest in the song, and that is NOT what the fourth factor in the fair use analysis looks for. If your criticism, through fiction or nonfiction, turns readers sour on another creative work, that may piss off the other creator, but it is in no way actionable under copyright law. (And as long as you don’t commit libel or defamation, it isn’t actionable at all.)

Other Limits on Copyright

Although factor three weighs the “amount used” question under fair use, there are other limits under copyright that are related to amount used, and which may also protect the author quoting song lyrics. De minimis use literally means that you use such a small amount of a work that there is no need even to consider infringement or a fair use defense.

Short phrases are not properly a subject of copyright protection. So, what lines do you intend to copy, and how original are those lines standing alone, if you did not tell your reader that a song is present in the scene? You might write the words love stinks in a context that evokes a song by that name such that the phrase has double meaning in your writing, and that should not implicate a need for a license from the songwriters.

Finally, scenes a faire is the doctrine that commonly used elements are not protectable. So, when I wrote above that factor two is “treated like the red-headed stepchild,” the estate of Warren Zevon has no grounds for a complaint just because almost that exact line appears in his song “Dirty Little Religion” (which is definitely not about the fair use doctrine). “Red-headed stepchild” is a commonly used metaphor which nobody may own through copyright.

While book authors should be judicious when quoting song lyrics—and this rule probably applies more to the writing than the legal questions—it should not be necessary that the writer’s default is to abandon an otherwise clever or poignant use of a lyric quote out of fear of litigation. One problem is that once you ask an agent or anyone whose job it is to collect fees, you’re probably going to get a price quote, but that party may not have any idea how you are using the lyrics.

Before even approaching the copyright owners in this situation, it may be worthwhile to get an analysis from qualified counsel in your corner in order to make informed decisions about what to quote and how; and you might even consider having a fair use analysis written to keep on file in case of potential conflict or to present to a publisher. After all, songwriters’ attorneys are well aware that their clients rely on fair use all the time. So, why shouldn’t book authors?