Authored by Tim O’Keeffe, Esq. Matthew Ersek, and Meghan Redmond
In the nuanced world of copyright law, a recent decision by the U.S. Court of Appeals for the D.C. Circuit in the case of Valancourt Books, LLC v. Garland stands a significant development. This case, involving a small but distinctive publishing company from Richmond, Virginia, sheds light on the intersection of constitutional rights and copyrights,
Valancourt Books, known for its dedication to reviving rare and out-of-print fiction, found itself at odds with the U.S. Copyright Office in June 2018. The core of the dispute was a demand for physical copies of their publications under Section 407 of the Copyright Act. Valancourt contended that this requirement was not only financially burdensome but also constituted an unjustified appropriation of its property, particularly as many of its works were already in the public domain.
Initially, the District Court sided with the government, interpreting the deposit requirement as a reasonable condition for securing federal copyright protection. However, the narrative took a turn in the Appellate Court. The D.C. Circuit Court of Appeals reversed this decision, framing the mandatory deposit as unconstitutional “taking” under the Fifth Amendment. The DC Circuit Court explain that Section 407, as applied by the Copyright Office in this case, worked as an unconstitutional taking of Valancourt’s property. The court explained that the office demanded that Valancourt relinquish property (physical copies of copyrighted books) or pay fines. And because the requirement to turn over copies of the of the works is not a condition of attaining (or retaining) copyright protection, the demand to forfeit property cannot be justified as he conferral of a benefit in exchange for property.
The Court further explained that under the current copyright system, works are automatically protected by copyright in the United States from the moment that they are fixed into a tangible medium of expression. While copyright protection is recognized immediately upon creation, the deposit requirement is triggered by the publication of the work. This means that the work already enjoys copyright protection when the deposit requirement kicks in. Thus, there is no benefit to the copyright holder in complying with the deposit requirement, other than avoiding the potential fine. The Court states, “[b]y requiring copyright owners to provide physical copies of books, the mandatory deposit provision ‘effect[s] a ‘classic taking in which the government directly appropriates private property for its own use”’ Because the Court concluded that the way the Copyright Office enforced Section 407 against Valancourt was a taking, they did not need to consider Valancourt’s challenge under the First Amendment.
What does this landmark decision mean for the future of Section 407 and for publishers like Valancourt? It signals a possible reevaluation of the deposit requirements by the Copyright Office. The Copyright Office will likely make minor changes related to how it handles deposit requirement material without removing the requirement entirely. The Office will also likely become more lenient regarding mandatory deposit of works that cannot be recorded or submitted easily or cost-effectively. The decision does not abolish the requirement but suggest a more nuanced and considerate approach, particularly for small-scale publishers dealing with unique and rare works.
In essence, Valancourt Books v. Garland is about the evolving nature of property rights in the digital era and the impact of constitutional protections on copyright law. This decision brings a new understanding to Section 407 and also serves as a beacon for small publishers and creators navigating the complexities of copyright law in a rapidly evolving digital landscape.
a small publishing company out of Richmond, Virginia that publishes rare, out-of-print fiction says yes, and the U.S. Court of Appeals for the D.C. Circuit agrees. Once seen as a voluntary exchange for a governmental benefit, the D.C. Circuit now considers the mandatory deposit requirement in Section 407 of the Copyright Act an unconstitutional “taking” under the Fifth Amendment.
In June 2018, the Copyright Office sent a letter to Valancourt Books, LLC, demanding physical copies of Valancourt’s published books. Valancourt protested that it could not afford to deposit physical copies and that much of what it published was in the public domain. In response, the Office narrowed the list of demanded works to 240 but continued to demand that Valancourt deposit copies of its books with the Library of Congress or otherwise face a fine.
Valancourt then sued the Register of Copyrights and the Attorney General, challenging the application of Section 407’s deposit requirement against it as an unconstitutional taking of its property in violation of the Fifth Amendment and an invalid burden on its speech in violation of the First Amendment. The district court granted summary judgment to the government on both claims, concluding that the dispute had been narrowed to the issue of submitting electronic copies to the Library rather than physical copies. The district court then rejected Valancourt’s constitutional claims, holding that Section 407 does not violate the Takings Clause of the Fifth Amendment because it represents a voluntary exchange for federal copyright protection. The district court also stated that it is “not at all clear” how principles regarding real or personal property would apply to electronic copies. In regard to the First Amendment argument, the district court concluded that Section 407 does not burden speech at all.
Valancourt appealed, and the D.C. Circuit Court of Appeals reversed the district court’s grant of summary judgment in the government’s favor and remanded with instructions to grant summary judgment to Valancourt. The DC Circuit Court explained that Section 407, as applied by the Copyright Office in this case, worked as an unconstitutional taking of Valancourt’s property. The court explained that the Office demanded that Valancourt relinquish property (physical copies of copyrighted books) or pay fines. And because the requirement to turn over copies of the works is not a condition of attaining (or retaining) copyright protection, the demand to forfeit property cannot be justified as the conferral of a benefit in exchange for property.
The Court further explained that under the current copyright system, works are automatically protected by copyright in the United States from the moment that they are fixed into a tangible medium of expression. While copyright protection is recognized immediately upon creation, the deposit requirement is triggered by the publication of the work. This means that the work already enjoys copyright protection when the deposit requirement kicks in. Thus, there is no benefit to the copyright holder in complying with the deposit requirement, other than avoiding the potential fine. The Court stated, “[b]y requiring copyright owners to provide physical copies of books, the mandatory deposit provision ‘effect[s] a “classic taking in which the government directly appropriates private property for its own use.”’” Because the Court concluded that the way the Copyright Office enforced Section 407 against Valancourt works a taking, they did not need to consider Valancourt’s challenge under the First Amendment.
What does this mean for the future of Section 407? The United States Copyright Office will likely make minor changes related to how it handles deposit requirement material without removing the requirement entirely. The Office will also likely become more lenient regarding mandatory deposit of works that cannot be recorded or submitted easily or cost-effectively, such as the rare copies of physical books in Valancourt’s case.