The word of the day is "Valancourt"
I need to flail about copyright law, and a DC Circuit Court decision that happened, err, yesterday:
Valancourt Books, LLC v. Merrick Garland, No. 21-5203 (D.C. Cir. 2023)
(You can google it. The Justia link has the full PDF.)
The ultra-short, tl;dr: Publishers don't have to submit 2 copies of their books to the Library of Congress anymore.
More details: Valancourt is an indie book publisher who skipped the "send two copies to the Library of Congress" part of copyright registration, in part because many of their works were public domain reprints, and in part because, well, they're a tiny indie publisher operating on a shoestring budget
I don't know how the LoC happened to notice them (certainly the vast majority of published works are NOT sent to the LoC, even if we leave out the digital works), but they did, and ordered them to send 2 copies of each of their works or face a hefty (for a small publisher) fine.
Valancourt fought back, claiming that, among other problems, the law (17 U.S. Code § 407 - Deposit of copies or phonorecords for Library of Congress) violates the 5th Amendment - it demands property of citizens without compensation.
Two lower courts sided with the gov't, saying that the benefits of copyright are extensive.
The DC Circuit court disagreed (emphasis added):
In urging us to view mandatory deposit as part of a voluntary exchange, the government cites the many benefits that copyright confers upon authors. But authors obtain those benefits upon fixation, and mandatory deposit grants no additional benefits. Tellingly, the government cannot point to a single incremental benefit that copyright owners receive for depositing works pursuant to Section 407. That provision then cannot represent a voluntary exchange for a benefit—there is no benefit at all.
Originally, depositing copies was a requirement of copyright registration - no copies, no copyright protection. Simple. Even had a practical purpose: in cases of infringement, the gov't had a copy of the original work to haul out to compare.
But the Copyright Act of 1976 threw that out - works were copyrighted "upon fixation of a work in a tangible medium," no registration required, not even the little © symbol.
Registration is required to pursue infringement claims. But. "The Act also removed loss of copyright as a sanction for failure to deposit." The 1976 Copyright Act was designed to say EVERYTHING IS COPYRIGHTED NO MATTER WHAT and not require anyone [companies] to do anything to secure those rights.
...It's been nearly 50 years since depositing 2 copies has given any benefit to publishers, but of course, they keep doing it, because the penalty for not doing so is heavy government fines.
Until someone (Valancourt) successfully argued that "requiring property without compensation" is a violation of our 5th amendment rights.

















