Copyright Case

Valancourt Books v. Perlmutter

Valancourt Books is a small, independent press that publishes rare and out-of-print fiction through a print-on-demand service. In June 2018, the Copyright Office, pursuant to Section 407’s deposit requirements, sent Valancourt a demand letter for mandatory deposit of 341 of the titles it publishes. The Copyright Office later reduced the number of requested deposits to 240 and also informed Valancourt that it would accept electronic copies instead of print copies.

Nonetheless, Valancourt filed a complaint against the Copyright Office in August of 2018, seeking to enjoin the federal government from demanding deposit copies and alleging the mandatory deposit provisions are an unconstitutional taking of property without just compensation in violation of the Fifth Amendment and an unconstitutional burden on free speech in violation of the First Amendment. The complaint also argued that because all original works are protected by copyright from the moment they are created, the deposit requirement no longer operates as an element of a quid pro quo.

The Copyright Office responded by filing a motion for summary judgment, arguing the constitutional claims have no merit and that the deposit requirement constitutes a voluntary exchange with the government for statutory benefits. Valancourt opposed the motion and filed a cross motion for summary judgment, arguing that the Copyright Office had threatened the publisher with “hefty fines” and that Valancourt has a “fundamental right to retain its property against the government’s interest in obtaining that property (which it could freely purchase) without paying for it.”

On July 23, 2021, the District Court for the District of Columbia issued a memorandum opinion, granting summary judgment in favor of the Copyright Office. The court considered both of Valancourt’s constitutional claims and determined that both claims failed. First, the Court found that Section 407’s deposit requirement isn’t an unconstitutional taking, but rather a voluntary exchange in return for the benefit of federal copyright protection. The court explained that the Supreme Court held in Ruckelshaus v. Monsanto Co. that statues that confer benefits on a citizen may condition the receipt of that benefit on the submission of private property and do not constitute an unconstitutional taking of property in violation of the Fifth Amendment. Second, the court found that the deposit requirement is not a violation of the First Amendment because it does not unduly burden speech and is not a content based restriction on speech because all publications in the United States must comply. The court went on to say that any burden posed by the deposit requirement is not disproportionate to the benefits enjoyed by Valancourt and the general public, namely creating a public repository to promote the arts and sciences.

District Court

Opinion (July 23, 2021)

Plaintiffs’ Reply Memorandum (September 13, 2019)

Defendants’ Combined Response Memorandum (August 23, 2019)

Plaintiffs’ Memorandum in Opposition to Defendants’ Motion and in Support of Plaintiffs’ Cross-Motion for Summary Judgment (August 2, 2019)

Joint Stipulations of Fact (July 3, 2019)

Defendants’ Memorandum in Support of Summary Judgment (July 3, 2019)

Answer (November 21, 2018)

Complaint (August 16, 2018)