What should the government give a small publishing company that is dedicated to bringing long-forgotten books to a broader modern audience? A pat on the back? An award? How about a six-figure fine?
In the case of Valancourt Books, the government is going with the fine. Valancourt is a small publishing company operated out of the Richmond, Virginia, home of James Jenkins, a former lawyer who found his life’s calling reviving and popularizing rare, neglected, and out-of-print fiction, including 18th century Gothic novels, Victorian horror novels, forgotten literary fiction, and works by early LGBT authors. Founded in 2005, Valancourt has published more than 300 books, all of which they have permission to reprint, winning praise from literature professors and the press alike.
It has also, apparently, been breaking the law. On June 11, 2018, James received an email from the U.S. Copyright Office demanding that he provide it with a copy of every single book in Valancourt’s catalog and threatening him with fines that could reach hundreds of thousands of dollars if he failed to comply.
What is going on? It turns out a little-known provision of federal law makes it illegal to publish a new book in the United States without providing the federal government with two free copies. The law itself dates back to the former federal copyright system, under which the only way to secure the protections of copyright was to formally register your work with the federal government and publishers were required to deposit copies of their books in exchange for registration. But under modern copyright law, copyright protection applies automatically to anything someone writes. But the deposit requirements is still there, which means the law now requires two free copies of anything copyrightable that is published in the United States. Valancourt’s books (all of which contain at least some new material, like scholarly introductions or footnotes, that is copyrightable) technically qualify. And the federal government—even though the justification for this requirement has long since vanished—intends to collect.
The problem for Valancourt is that it doesn’t have these books. Because the market for each Valancourt title is relatively small (the company considers selling 100 copies of a title a successful sales run), the business was built on a “print-on-demand” model. James edits each book and lays out galleys, but nothing is physically printed until a customer or retailer actually orders a book. Complying with the government’s demand would require James to order a new copy of each of Valancourt’s books, box them up, and ship them to Washington, D.C., a process that would take days of work and cost thousands of dollars. (James explained all of this to the Copyright Office in an email, but they did not reply.)
That is why Valancourt Books has joined with the Institute for Justice, the national law firm for liberty, to file a federal lawsuit challenging the book-deposit mandate. You don’t owe the federal government anything just because you published a book. Government officials cannot simply force you to turn over personal property on pain of ruinous fines, and they cannot punish you for publishing a book without letting them know.
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Valancourt Books Is Bringing Long-Forgotten Books To An Audience That Wants To Read Them
Valancourt Books began as a side project for James Jenkins. In 2004, as a dissatisfied lawyer in Seattle, Washington, James decided to apply to graduate school in English Literature. For his required application essay, he decided to write about an 18th century novelist who had long interested him: Francis Lathom.
Unfortunately, Lathom’s work was only available in one location in North America, the University of Nebraska. Even there, the library did not have his books, only microfiche versions. But James didn’t give up: He drove halfway across the country and borrowed the Lathom microfiche, along with some other out-of-print books he was interested in.
This experience got James thinking: There was no reason, in the modern world of low-cost, print-on-demand technology, that classic works of literature should be unavailable. And so James decided to fix the problem himself by publishing two of the titles he had on microfiche: The Animated Skeleton, an anonymous gothic novel from 1798, and Francis Lathom’s 1795 book The Castle of Ollada. Over the course of the next several months, James and his husband painstakingly typed out the manuscripts (using microfiche readers at their local public library), and in March of 2005, Valancourt Books published its first books.
Valancourt remained a side project for James during the next few years; he continued publishing books while practicing as a lawyer and completing a master’s degree in literature at the University of Chicago. Valancourt’s offerings continued to draw attention from the public and from a wide variety of respected scholars whom James recruited to edit future Valancourt volumes.
By 2012, James’s work through Valancourt was successful enough that he was able to quit his job and devote himself full-time to publishing. What began as an obscure passion project had become a profitable (if small) business that allowed James to support himself doing work he found genuinely important. Today, Valancourt has published more than 340 books, and puts out roughly 20 new titles every year. Valancourt’s books are taught in college courses and have won praise from prominent publications like The Washington Post and the BBC.
Although Valancourt is successful, it is not large-scale or high-volume. The business still consists of just James and his husband, and James still considers a new title a success if it can sell a few hundred copies. The company’s business model only exists because of modern technology: All of Valancourt’s books are published solely on a digital, print-on-demand basis. Valancourt finds books, secures the reprint rights for those that are not yet in the public domain, lays out manuscripts, and adds scholarly introductions and notations, but nothing is physically printed until a customer actually places an order, which allows them to keep their overhead low enough to survive.
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.
IJ Attorneys Robert McNamara and Jeffrey Redfern represent Valancourt Books in the lawsuit.
About the Institute for Justice
The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for private property rights. Since 1991, IJ has litigated in the courts of law and in the court of public opinion to defend free speech, property rights, economic liberty, and parental choice in education.
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