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Copyright Office Has No More Right to Free Copies

The library of congress
By Vaidehi Mehta, Esq. | Last updated on

If you're a reader, you may have found yourself frustrated when your local library didn't instantly have a copy of the latest Colleen Hoover romance. If you're an academic, you've probably had to borrow several esoteric volumes from other libraries for your research because your institution didn't stock them.

But there's one place in the country where you never have to worry about something not being available: the Library of Congress. It's the biggest library in the world, which is not suprising given the fact that throughout history just about every book that is published in the country has been required to give them free copies — until now. When a small publisher took issue with this, it won a court ruling ending the longstanding requirement imposed by the U.S. Copyright Office.

The idea of protecting creative works, a.k.a. copyright, is more foundational to the spirit of America than you might think. Technically, it's even older than pretty much any fundamental right you could name, including free speech; the idea of copyright law was a part of the original Constitution of 1789, which came even before the Bill of Rights. Although there were revisions and major revamps, we've been using more or less the same system of copyright law for over 230 years.

Copyright protection is somewhat unique in its automatic application. A copyright automatically accrues once an original work is created "in a tangible medium of expression," a phrase found in the Copyright Act which essentially means that the original work can be seen or heard in some sort of physical medium (a book, a website, an audio or video recording, etc.). Thus, once the work exists in this way, it automatically gets copyright status and protection without the creator having to take any specific action such as registering the work for protection or even publishing it – unlike, say, a trademark or patent protection, for which you must file paperwork to apply for and get approved by the Patent and Trademark Office. Copyrights generally last through the life of the creator and an additional 70 years after the creator's death.

But despite the fact that copyright protection is automatic, it still comes with some strings, namely, a pesky little requirement found under a section of the Copyright Act. Section 407 of the Copyright Act requires the owner of a copyright that has published a work to deposit a non-returnable copy or two of the work in the Library of Congress within three months of publication. If the copyright holder goes on without meeting this requirement after a warning from the Copyright Office, they can be fined in the amount of $250 per work plus the retail price of the work (or some equivalent calculated price). For willful or repeated failures to comply, they can get fined $2,500.

Small Publisher Protests Cost

Valancourt Books is a quirky little independent press in Richmond, Virgina, that describes itself on its website as specializing in "new editions of neglected classics, with an emphasis on horror/supernatural and LGBT literature." Instead of stocking a set amount of print editions, it prints copies of each work per order, placing copyright notices in its books.

In 2018, the Copyright Office sent a letter to Valancourt demanding copies of 341 of its books at the threat of fines. The founder, James Jenkins, responded that as a "very small publisher," he could not afford to do so because printing enough copies of all of the necessary books would cost him over $2,500. He instead offered to sell copies of any of the works to the government with no markup. When the government persisted, Valancourt sued.

Valancourt Valiant at Court

Valancourt took the Attorney General and the Register of Copyrights to court, arguing that Section 407 of the Copyright Act was unconstitutional under the First and Fifth Amendments. The Copyright Office first tried to settle by letting Valancourt deposit electronic titles instead of physical copies. But Valancorut rejected the offer for two alleged reasons, and you can take your pick of which one you want to believe. The heroic reason: Valancourt claimed that it wasn't fair it to receive special treatment and get off the hook while other similarly situated small publishers would suffer the fate of having to pay for physical copies. The less romantic reason: it lost some of the electronic copies in a home burglary, and literally could not take the offer.

Either way, Valancourt stood its legal ground. The case went to the D.C. Circuit, which is considered by many to be the second most important court in the country after SCOTUS. The circuit court agreed with Valancourt that the requirement to deposit copies was unconstitutional. The Circuit only considered the Fifth Amendment claim, as that was enough to make a decision.

Takings Clause to the Rescue

The Takings Clause is a lesser-known part of the Fifth Amendment. That's right, folks: from the studio that brought you blockbusters like The Double Jeopardy Clause and The Right to Remain Silent comes the following sleeper hit: "nor shall private property be taken for public use, without just compensation." The Court found that Section 407 violated this clause.

Under the Takings Clause, the government is obligated to pay for whatever it takes from people. Usually, the situation plays out with real property (land and real estate), but it can apply to personal properly (like your car or TV) as well.

The court did note that a demand for personal property (such as a publisher's books) would not be considered a "taking" if the owner voluntarily exchanged the property in return for a government benefit. For example, if the government was giving a special license in exchange for the books. But here, copyright owners aren't receiving anything that they wouldn't otherwise get without depositing the books. Since copyright protection attaches automatically upon publication, there's no benefit to depositing the books.

It's worth noting that Valancourt also presented a legal theory under the First Amendment as part of its suit. It essentially argued that Section 407 unlawfully burdened speech and was overbroad. The trial court disagreed with both of these claims. The D.C. Circuit did not weigh in. Appellate courts famously love dodging questions if they can. Because the circuit court was able to give Valancourt what it wanted under the Fifth Amendment theory, it left the First Amendment question unanswered. So while Valancourt's attorney, Robert McNamara of the Institute of Justice, was quoted saying that the ruling was a "victory for property rights, free speech and anyone who loves either one," the grounds for the ruling actually only involve property rights, not free speech.

For small publishers, the legal analysis may not matter anyway. The bottom line is still that struggling publishers can check one financial burden off their list.

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