There are countless features of U.S. copyright law that are suboptimal. Copyright terms? Too long. The anti-circumvention provisions of the Digital Millennium Copyright Act that prohibit unlocking digital locks on legally purchased products? An affront to private property rights. The mechanics and particulars of what goes into a copyright registration? A process plagued by ambiguities made only slightly less muddled after the Supreme Court clarified some of it in Unicolors v. H&M.
But one vestigial provision of the Copyright Act stands head-and-shoulders above these others. It is the Mandatory Deposit Requirement found in 17 U.S.C. § 407 (“the 407 deposit requirement”), and thanks to the work of Valancourt Books and the Institute for Justice it may soon be a dead letter. This provision requires “the owner of copyright or of the exclusive right of publication in a work published in the United States” to deposit two copies of the “best edition” of the work with the Library of Congress.
Valancourt Books is a small, independent book publisher specializing in rare, out-of-print fiction. Many of the works published by Valancourt are in the public domain, but their books often include forwards, footnotes, or additions by others that are protected by copyright. After operating for well over a decade, Valancourt received a demand letter from the Copyright Office for hundreds of their books. As a small, print-on-demand outlet, Valancourt does not maintain an inventory of books readily available to send to the Copyright Office. Valancourt had to choose between paying thousands of dollars to comply with the Copyright Office’s request or paying tens of thousands in fines for not complying with the deposit requirement. After suing and losing in federal district court, Valancourt appealed to the D.C. Circuit Court of Appeals. The Niskanen Center, alongside professors Brian Frye and Zvi Rosen and the Association of American Publishers, filed amicus briefs in support of Valancourt.
The Valancourt Books’ lawsuit argument is twofold. First, that the 407 deposit requirement is an unconstitutional taking under the Fifth Amendment. The Fifth Amendment applies just as much to Valancourt’s books as it does to one’s land or home, and while the government may demand such property either in exchange for “just compensation” or a valuable government benefit, neither of those applies here. The Copyright Office demanded free copies of these books, and would not be providing any “valuable government benefit” because copyright is automatic. (The Copyright Act is explicit in stating that the deposit requirement is not a condition of copyright protection under U.S. copyright law.)
Second, the 407 deposit requirement violates the First Amendment as an overbroad content-based policy that burdens protected First Amendment activity (i.e., publishing a book) by demanding from those publishers two “complete copies of the best edition.” Ironically, these harms fall on publishers whose speech the government favors (they want the copies for the Library of Congress). The Copyright Acquisition Division scours the internet for publishers that have not complied with the deposit requirement, but they pick and choose based on what would be a desirable addition to their collection. Normally, content-based restrictions deal with disfavored speech that is in some way suppressed. The dynamic here is reversed, but the decision is based on content all the same.
Once upon a time there was a reasonable rationale for the 407 deposit requirement in U.S. copyright law. According to the history outlined in Frye and Rosen’s amicus brief, the original deposit requirement was a precondition for copyright protection. The Copyright Act of 1790 did not automatically grant an exclusive right. Fifty years later, Congress decided the best way for the government to construct a national library was to leverage the already existing deposit requirement. Over the years, copyright has become easier to obtain, with requirements like the need to deposit or include a notice of copyright falling by the wayside in favor of automatic copyright protection. The Berne Convention Implementation Act of 1988 made it so the deposit requirement no longer required the “notice of copyright” (e.g. “© 2022, Niskanen Center.”) Even though these legislative changes made copyright itself an opt-out system, the deposit requirement at issue in this case, once easily avoidable by not including a copyright notice, stayed with us.
The only potentially persuasive rationale for the 407 deposit requirement today is that it allows the Library of Congress to collect books to continue its work as a national library. A worthwhile goal if there ever was one. But the Copyright Act contains an instrument usable by the Library of Congress and the Copyright Office to build a national library without violating the Takings Clause. It’s right next door to Section 407 in Section 408, where the owner of a copyright deposits two “complete copies of the best edition” for the purposes of copyright registration, something that must be done to fully realize the benefits afforded to copyright owners. Thus, unlike Section 407, Section 408 actually provides a benefit in exchange for the deposit copies.
The number of books acquired under the mandatory deposit is dwarfed by the number acquired through the normal registration process by a ratio of about four to one, and most deposited under section 407 were deposited voluntarily by the copyright holders (as opposed to being coerced from the copyright holders– like Valancourt – via threats of fines.) And of the tens of thousands of deposited books, a great many are destroyed or otherwise disposed of due to the sheer volume the Library of Congress receives. In those cases, the 407 deposit requirement is wasteful, plain and simple. Despite this, the Copyright Acquisition Division continues to send out demand letters threatening fines against those who do not hand over private property without just compensation. The publication of books is as “basic and familiar” a use of private property as could be imagined. The Supreme Court has explicitly ruled that the government may not seize property used in such a way without just compensation if the use falls into the category of “basic and familiar.” Even so, the government asserts that because publishers derive some benefit from a copyright regime that is unilaterally forced upon them (as opposed to one where rightsholders go through the formal registration process), it is entitled to make such an uncompensated demand for property.
Of particular interest to the Niskanen Center is the nature of copyright abandonment. Because copyright protection attaches once a work has been put down in a tangible medium, it is thrust upon anyone who takes pen to paper, and the deposit requirement then attaches upon publication (unless a specific type of work is excluded from the deposit requirement). This is a perverse application of the logic of a government benefit. Anyone who wants to do something exceptional like sell dangerous pesticides may be required to do something in exchange for a special license. Those who want to exercise constitutionally protected rights should neither have to receive special permission nor be required to participate in a scheme that grants them special benefits in doing so.
Yet if copyright is automatic, then the Copyright Act forces authors into a regime they did not necessarily choose to enter, are forced to pay a price to stay, and cannot easily leave (if they can leave at all). The only way to escape copyright, then, would be to abandon one’s copyrights. Copyrights can be licensed under rather generous terms. The Niskanen Center, for example, uses a Creative Commons attribution license; anyone can reproduce this work provided they attribute it to Niskanen. There is even the Creative Commons Public Domain license, a legal green light to copy a work as freely as the Complete Works of William Shakespeare, the Starr Report, or “Reefer Madness.”
But no matter how generous a license you give, you’re still the owner of the copyright, and thus on the hook for mandatory deposit. And unfortunately, the law is not at all clear on how or whether you can rid yourself of the copyright altogether. Musical satirist and published mathematician Tom Lehrer, is of the belief that “[t]here is no legal way to unilaterally transfer a song into the public domain.” It’s not difficult to see why he believes this. The Copyright Act does not provide for abandonment, judicial opinions on the possibility of abandonment are a mixed bag, and the Copyright Office has no regulation concerning abandonment. Only if you dig deeply into the 1,300-page Compendium of Copyright Office Practices would you find the two pages that discuss the concept of a “notice of abandonment.” You may file such a document, but the Compendium does not even say that this will relieve you of the deposit obligation; in fact, it says “The Office will record an abandonment as a document pertaining to copyright without offering any opinion as to the legal effect of the document.”
But this was not its position after being sued by Valancourt for violation of the First and Fifth Amendments. Through the course of this litigation, the government has shifted the nature of abandonment. When it initially sent its demand letter, it made no mention of abandonment whatsoever. Later on in its filings, it made mention of this relatively obscure procedural option, something Valancourt and countless others do not avail themselves of because the Copyright Office makes absolutely no effort to make it accessible. Yet during oral argument, the government shifted its position even further: Now, the position of the government is virtually that any mere utterance is enough to constitute abandonment.
For the first time in the years-long course of this litigation, the Copyright Office (or at least their lawyers at the Department of Justice) maintained that one could simply write an email to the Copyright Office in response to a demand letter and that the Office would “respect that for the purposes of [the] 407” deposit requirement. Beyond the fact that a trivial mechanism for abandonment can be found neither in the government’s filings or the literature the Office sends out with its demand letters, there is a more glaring problem with this argument: One cannot abandon copyright just for the purposes of the 407 deposit requirement.
As discussed above, “abandonment” has a specific meaning. When someone puts a table on the sidewalk with a sign that reads “free”, they are not abandoning that property for a specific purpose. They are just abandoning it. The government’s latest view on abandonment would create the absurd position where a party could abandon their copyright to avoid the deposit requirement, but keep it for the duration of the term in case they want to register it later down the road. Copyright abandonment, if it is possible, by definition means there can be no takesies-backsies nor strings attached.
If the D.C. Circuit rules in favor of the government, it will have to do so in agreement with the position that the Copyright Act allows for abandonment as a way to fully dedicate a work to the public domain. But even under a liberal interpretation of the ability to abandon copyright, there must be some “overt act which manifests [the authors’] purpose to surrender his rights in the ‘work,’ and allow the public to copy it.”
The Copyright Office’s slipperiness on the question of abandonment is unpersuasive in light of a total lack of any regulatory changes to make the process possible. It failed to make the case that forcing authors to receive copyright protection makes it a special government benefit that entitles them to surrender their property and impose a financial burden on speech. The government has the unenviable task of defending a law that both forces businesses to choose between two forms of takings and taxes speech.
A deposit requirement is perfectly reasonable in the context of copyright registration. Compliance with formalities — including those related to the preservation of works — in order to avail oneself of the full benefits of copyright under U.S. copyright law is no problem. But should those who merely publish books be, in essence, forced to pay a tax for that activity in either property or money? No! Problem!
The Niskanen Center normally publishes under a Creative Commons Attribution License. However, this specific post is hereby abandoned and dedicated to the public domain. This declaration means, to the fullest extent allowed by U.S. Copyright law, that no copyright protection subsists in this work.