Small Publisher Prints Major Win for Property Rights

Jeffrey Redfern
Jeffrey Redfern  ·  November 1, 2023

A little-known provision of the Copyright Act says that if you publish a book in the United States, regardless of whether you ever bother to register a copyright, you are required to hand over two free copies of your book to the Library of Congress for the government’s own use. 

Seriously. The Library wants your books, but it would prefer not to pay for them. Seems like a pretty obvious taking of private property without just compensation—just what the Constitution forbids, right? Amazingly, it took five years of litigation and a trip to a federal court of appeals to get that provision struck down.  

Valancourt Books is a small publisher that operates out of James Jenkins’ home in Richmond, Virginia. James is a former lawyer who found his calling reviving and popularizing rare and out-of-print literature, particularly 18th-century gothic novels and early LGBT fiction. Although Valancourt has won acclaim for its work restoring lost literature, its titles are not exactly New York Times bestsellers. A Valancourt title may sell only 100 copies, so the business prints all books on demand, and it ships directly from printer to customer.  

On June 11, 2018, James received a strange letter from the Copyright Office (a part of the Library of Congress). The letter demanded that Valancourt provide two free copies of every book in its catalog, 341 in total, or face potential six-figure fines. The basis for this letter was a provision of the Copyright Act called “mandatory deposit.”  

Under the original Copyright Act, passed by the First Congress, you were required to hand over copies of your book as a condition of receiving copyright protection. In the 20th century, however, the United States adopted its current copyright regime. Now, everything you write is protected by copyright the moment you put pen to paper. Registration is necessary only if you want to sue about your copyright. (Small publishers like Valancourt rarely register their copyrights because they have no interest in litigation.) When Congress changed the law, however, the Library didn’t want to lose all the free books it was accustomed to receiving. So it insisted that the deposit requirement remain unchanged, even for unregistered works. 

Instead of handing over private property to the government for free, James got in touch with IJ. Together, we sued the Copyright Office in federal court, arguing that under the Fifth Amendment, the government cannot take private property without just compensation. The trial court initially ruled against Valancourt, holding that mandatory deposit was actually an exchange: You give your books, you get copyright protection. Never mind that the Copyright Act explicitly says that deposit “is not a condition of copyright protection.” 

The D.C. Circuit, however, wasn’t fooled. In August, it struck down the mandatory deposit provision of the Copyright Act. If the government wants Valancourt’s books (and it should; they’re fantastic), it can buy them like everyone else.

Jeffrey Redfern is an IJ attorney.

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