Alancourt Books, LLC v. Garland, 21-5203 (D.C. Cir. 8/29/2023) 17 USC 407, and the Takings Clause
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Rick Neifeld
Aug 29, 2023, 9:36:03 PM8/29/23
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While not patent law, this holding in copyright law is significant.
I copy the most relevant paragraphs below.
At issue here is the mandatory deposit requirement found in Section 407 of the Copyright Act. Id. § 407. That provision states that “the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication . . . two complete copies of the best edition” of the work. Id. § 407(a)(1). The “required copies . . . shall be deposited in the Copyright Office for the use or disposition of the Library of Congress.” Id. § 407(b). Because the deposit requirement is triggered upon “publication,” id. § 407(a), unpublished works are not subject to it. For most literary works, the Copyright Office’s regulations presently require deposit of only a single copy rather than two copies, although the Office reserves the right to request a second copy. See 37 C.F.R. § 202.19(d)(2)(ix). [Alancourt Books, LLC v. Garland, 21-5203 (D.C. Cir. 8/29/2023).]
To enforce the mandatory deposit requirement, the Copyright Office “may make written demand for the required deposit on any of the persons obligated to make the deposit under [Section 407(a)].” 17 U.S.C. § 407(d). If a copyright owner fails to make the “required deposit” within three months of a demand, she becomes liable for a “fine of not more than $250 for each work” in addition to “the total retail price of the copies or phonorecords demanded” (or, “if no retail price has been fixed, the reasonable cost to the Library of Congress of acquiring” those works). Id. § 407(d)(1)–(2). And if the copyright owner “willfully or repeatedly fails or refuses to comply with such a demand,” she becomes liable for an additional $2,500 fine. Id. § 407(d)(3). As an indication of the scale of Section 407’s operation, from fiscal year 2013 through the first quarter of fiscal year 2019, the Copyright Office demanded 27,847 titles under the provision’s mandatory deposit requirement. [Alancourt Books, LLC v. Garland, 21-5203 (D.C. Cir. 8/29/2023).]
We conclude that Section 407, as applied by the Copyright Office in this case, worked an unconstitutional taking of Valancourt’s property. The Office demanded that Valancourt relinquish property (physical copies of copyrighted books) on the pain of fines. And because the requirement to turn over copies of the works is not a condition of attaining (or retaining) copyright protection in them, the demand to forfeit property cannot be justified as the conferral of a benefit—i.e., copyright protection—in exchange for property. Our holding relates solely to the Office’s demand for physical copies of Valancourt’s copyrighted works: we have no occasion to assess the Office’s offer during the litigation to accept electronic copies in lieu of physical copies. [Alancourt Books, LLC v. Garland, 21-5203 (D.C. Cir. 8/29/2023).]
The bit about "And because the requirement to turn over copies of the works is not a condition of attaining (or retaining) copyright protection in them" is built into the statute. Specifically, 17 USC 407(a), last sentence, states "Neither the deposit requirements of this subsection nor the acquisition provisions of subsection (e) are conditions of copyright protection."
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At issue here is the mandatory deposit requirement found in Section 407 of the Copyright Act. Id. § 407. That provision states that “the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication . . . two complete copies of the best edition” of the work. Id. § 407(a)(1). The “required copies . . . shall be deposited in the Copyright Office for the use or disposition of the Library of Congress.” Id. § 407(b). Because the deposit requirement is triggered upon “publication,” id. § 407(a), unpublished works are not subject to it. For most literary works, the Copyright Office’s regulations presently require deposit of only a single copy rather than two copies, although the Office reserves the right to request a second copy. See 37 C.F.R. § 202.19(d)(2)(ix). [Alancourt Books, LLC v. Garland, 21-5203 (D.C. Cir. 8/29/2023).]
To enforce the mandatory deposit requirement, the Copyright Office “may make written demand for the required deposit on any of the persons obligated to make the deposit under [Section 407(a)].” 17 U.S.C. § 407(d). If a copyright owner fails to make the “required deposit” within three months of a demand, she becomes liable for a “fine of not more than $250 for each work” in addition to “the total retail price of the copies or phonorecords demanded” (or, “if no retail price has been fixed, the reasonable cost to the Library of Congress of acquiring” those works). Id. § 407(d)(1)–(2). And if the copyright owner “willfully or repeatedly fails or refuses to comply with such a demand,” she becomes liable for an additional $2,500 fine. Id. § 407(d)(3). As an indication of the scale of Section 407’s operation, from fiscal year 2013 through the first quarter of fiscal year 2019, the Copyright Office demanded 27,847 titles under the provision’s mandatory deposit requirement. [Alancourt Books, LLC v. Garland, 21-5203 (D.C. Cir. 8/29/2023).]
We conclude that Section 407, as applied by the Copyright Office in this case, worked an unconstitutional taking of Valancourt’s property. The Office demanded that Valancourt relinquish property (physical copies of copyrighted books) on the pain of fines. And because the requirement to turn over copies of the works is not a condition of attaining (or retaining) copyright protection in them, the demand to forfeit property cannot be justified as the conferral of a benefit—i.e., copyright protection—in exchange for property. Our holding relates solely to the Office’s demand for physical copies of Valancourt’s copyrighted works: we have no occasion to assess the Office’s offer during the litigation to accept electronic copies in lieu of physical copies. [Alancourt Books, LLC v. Garland, 21-5203 (D.C. Cir. 8/29/2023).]
The bit about "And because the requirement to turn over copies of the works is not a condition of attaining (or retaining) copyright protection in them" is built into the statute. Specifically, 17 USC 407(a), last sentence, states "Neither the deposit requirements of this subsection nor the acquisition provisions of subsection (e) are conditions of copyright protection."
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Best regards, Rick Neifeld, Ph.D., Patent Attorney
Neifeld IP Law PLLC
9112 Shearman Street, Fairfax VA 22032-1479, United States
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