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. After Valancourt objected to the demands, the Copyright Office updated the demand letter to reduce the number of requested deposits to 240 titles.

Subsequently, 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, following enactment of the 1976 Copyright Act, 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. In March 2019, the Copyright Office offered a settlement to Valancourt in that the agency would accept electronic copies instead of print copies and that the offer extended to all future copies submitted by Valancourt. Valancourt rejected the offer.

On July 23, 2021, the District Court for the District of Columbia granted 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 was not 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 statutes which 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.

On September 2021, Valancourt appealed the decision to the D.C. Circuit, arguing that (1) the statutory text of the Copyright Act makes clear that mandatory deposit is not a condition of copyright and the district court erred in holding that it is a voluntary exchange rather than an unconstitutional taking, and (2) that mandatory deposit is a content-based restriction on free speech by imposing burdens “because the government approve[d] of [Valancourt’s] speech and want[ed] to benefit from it.”

On August 29, 2023, the D.C. Circuit Court of Appeals reversed the district court’s grant of summary judgment to the Copyright Office and ruled in favor of Valancourt. Only ruling on the Copyright Office’s demand for physical copies of Valancourt’s copyrighted works in the context of the Fifth Amendment, the court held that section 407, as applied by the Copyright Office, constituted an unconstitutional taking of Valancourt’s property. Reviewing the role and evolution of the mandatory deposit requirement in U.S. copyright law, the court found that the current mandatory deposit requirement was not tethered to any benefit to compensate for the submission of such deposits, since copyright protections are automatic upon the work being fixed and original. Additionally, the court applied prior case law to find that the alternative of charging fines did not immunize the Office’s actions from amounting to a government taking. Addressing the Office’s claims that Valancourt could voluntarily disavow its copyrights, the court declined to resolve the issue but stated that existing authority and Office guidelines did not make clear that such a theory could be applied for parties to avoid the mandatory deposit requirement. The court declined to opine on Valancourt’s First Amendment claims because it concluded that Valancourt would prevail anyway on the Fifth Amendment claim, nor did the court opine on the constitutionality of demands for electronic copies as those demands were not at dispute in the case.

On December 14, 2023, the Court of Appeals rejected the Copyright Office’s petition for an en banc rehearing of the case. On April 12, U.S. Solicitor General Elizabeth Prelogar sent a letter to Congress, stating that the Department of Justice (DOJ) decided not to seek U.S. Supreme Court review.

Procedural History

Status: Reversed and remanded by the D.C. Circuit Court of Appeals. (August 2023)

D.C. Circuit Court of Appeals

District Court for the District of Columbia