Enter the Copyright Office

Valancourt found success serving its small but enthusiastic audience, and James looked forward to many more years as an independent publisher—until, on June 11, 2018, he got an email from the U.S. Copyright Office at his Valancourt Books email address. The email attached a formal letter from a federal “acquisition specialist” informing James that Valancourt had failed to comply with federal “mandatory deposit” rules for its books. The government was demanding that James provide it with a physical copy of every single book Valancourt had ever published.If he failed to do so, the letter threatened, Valancourt would be subject to fines that could stretch well into the six figures.

This demand was both surprising and distressing. For one thing, James didn’t have six figures to pay the fines. And for another, he didn’t have the books. Valancourt’s publish-on-demand model means that James does not keep piles of books on-hand and ready to ship. To comply with the government’s demand, James would have to go online, order every single book from Valancourt’s back catalog, and then physically package each one up to ship to the Copyright Office. (The government’s demand letter contained 341 individual notices that, for tracking purposes, had to be included with each individual book James was supposed to send.) The process would have taken days and cost thousands of dollars.

To make matters worse, James had already given many of these books to the federal government. When Valancourt first started publishing, it participated in the Library of Congress’s “ Cataloging in Publication ” program, in which publishers provide the Library with a free copy of a book in exchange for a Library of Congress catalog number that is meant to facilitate processing for libraries. After depositing more than 100 books this way, James eventually decided that providing these copies was too expensive and yielded little benefit, and so he stopped—but the Copyright Office was demanding that he give them additional copies of many of those 100 books anyway.

James immediately explained all of this in an email he sent in response to the demand letter. Two months later, the Copyright Office finally replied–to inform him that he still needed to provide copies of books that contained any “copyrightable” material, even if he had already sent them to the Library of Congress for other reasons. For unexplained reasons, the new letter dropped the number of books demanded down to 240, but it still threatened crippling fines and warned Valancourt not to keep publishing books without sending copies to the federal government.

The Book-Deposit Mandate

The Copyright Office is not wrong about what the law says: Federal law says that the “owner of copyright” in any copyrightable book “shall deposit [in the U.S. Copyright Office], within three months after the date of publication . . . two complete copies of the best edition” of the book. Failure to comply subjects a publisher to fines of $250 per book (plus the retail price of the book), along with additional fines of $2,500 for “willful” failure to deposit the books.

This book-deposit mandate is a relic of the United States’ old copyright system. It has been on the books for more than 200 years—though originally in a very different form. Originally, the deposit requirement went hand-in-hand with copyright protection itself: Anyone who wanted to claim the protections of copyright had to provide copies to the federal government (originally sending one to a federal court clerk and one to the State Department), and the Supreme Court upheld this requirement as a necessary precondition to copyright in 1834. If you didn’t want to send your books to the government, that was your business; it just meant that your books wouldn’t be copyrighted.

But the copyright system has changed since then. It is no longer necessary to register your copyright (or even publish a notice of copyright) in order to have the protections of copyright law. Instead, copyright applies automatically to anything someone writes—publishers can choose to register their copyright (which requires depositing books and provides the copyright owner with additional protections), but copyright applies regardless. The problem is that Congress didn’t remove the book-deposit mandate when it made these changes to the law. This means that, under current law, if publishers want to register their copyrights, they have to give the government free copies of their books in exchange—and, if publishers don’t want to register their copyrights, they have to give the government free copies of their books anyway. The Copyright Office has promulgated regulations exempting some things from the deposit requirement—most notably e-books—but traditional books like Valancourt’s remain subject to the law, even though Valancourt has no desire to register whatever copyrights it owns in the scholarly introductions and footnotes it adds to the books.

Simply put, the rationale for the book-deposit mandate went away decades ago, but that has made no difference. Federal laws like these are perpetual motion machines. They keep on going even after their reason for being has long since vanished—until someone stops them.

The Legal Claims

That is why, on August 16, 2018, Valancourt Books joined with the Institute for Justice to file a federal lawsuit against the Copyright Office and the U.S. Department of Justice claiming that the book-deposit mandate is unconstitutional. The lawsuit raises two claims. First, the mandate violates the Takings Clause of the Fifth Amendment: The federal government can’t simply force someone to turn over their personal property for the government’s own use without paying them for it. And second, the mandate violates the First Amendment: The deposit requirement operates as a penalty on people who publish physical books without turning over a copy. But the government can’t punish people simply for publishing a book, and the notion that a private citizen owes the government a debt simply for engaging in a certain kind of speech is antithetical to the Constitution. For these reasons, Valancourt cannot be fined into oblivion for having failed to turn over copies of the books it has brought back into the world.

The Unseen Web of Unenforced Federal Requirements

The book-deposit requirement is symptomatic of a broader problem throughout the federal government. Most people—perhaps even most people in the publishing industry —have no idea the book-deposit requirement even exists. And so it is with many federal requirements—most people probably have no idea that it is a federal crime to invoke the name of Smokey Bear for profit without the permission of the Secretary of Agriculture or to fall asleep at the U.S. Meat Animal Research Center in Clay Center, Nebraska or to sell a toy marble without an explicit warning that the toy marble is a toy marble .

There is a cottage industry—typified by the popular @CrimeADay Twitter account from which the above examples are drawn—devoted to recounting this baffling range of federal rules and prohibitions. But these laws are more than amusing; they are dangerous. Within the bevy of federal laws and regulations there are surely many that, like the book-deposit mandate, are mostly unenforced and even frequently violated (there may well be illicit napping happening at the Meat Animal Research Center even now), but the fact that they remain on the books is an ever-present danger—as Valancourt Books can all too readily attest. Simply put, allowing outdated or unenforced laws and regulations to stay on the books means that every person and every business is at risk of the same treatment that Valancourt received: that they will be threatened and potentially destroyed, simply because a federal official happened to notice them.

Litigation Team

IJ Attorneys Robert McNamara and Jeffrey Redfern represent Valancourt Books in the lawsuit.

About the Institute for Justice