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.
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 the 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.
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