February 18, 2022
The Association of American Publishers Files Amicus Brief in Support of Valancourt Books
Mandatory Deposit Provisions are Not a Condition of Copyright Protection
The Association of American Publishers today filed an amicus curiae brief in the United States Court of Appeals for the D.C. Circuit in support of the plaintiff-appellant and reversal in the case of Valancourt Books, LLC v. Perlmutter.
Valancourt Books has challenged the mandatory deposit provisions in section 407 of the U.S. Copyright Act which, under threat of penalty, compel publishers to provide books free of charge to the Library of Congress as an unconstitutional government taking and violation of its First Amendment rights.
AAP’s brief focuses on the erroneous analysis and illogical conclusion of the lower court in construing mandatory deposit as a quid pro quo for copyright protection and for making the extraordinary suggestion that copyright owners may avoid this alleged exchange by abandoning their copyrights. Copyright protection does not depend upon submitting deposits to the Library or any other formality, AAP explains, because copyright protection vests automatically without any action on the part of the copyright owner. In fact, the Copyright Act states plainly in section 407 (a) that “mandatory deposit is not a requirement for protection.” Moreover, the lower court ignores the fact that “numerous and diverse parties rely on the existence and operation of copyright law—including businesses that use copyrighted works—[but] none besides copyright owners are compelled to contribute their private property to the Library.”
As AAP makes clear, publishers support the objective of a well-curated national library collection that invites voluntary submissions and other private gifts, but the mandatory deposit system—in addition to being unlawful—is “inefficient and wasteful, as the Library ends up giving away or destroying a large portion of what it receives. What is more, the Library lacks the resources to process all of the works it already has in its possession; millions of works await cataloging in long-term storage, where they are inaccessible to researchers.”
In fact, nearly half of the books collected through the deposit system are subsequently rejected; in 2018 the Library gave away 76,129 volumes as surplus and destroyed an unknown quantity of others. These realities do not support a legal contortion that threatens publishers with fines of up to $250 per title, to which a $2500 surcharge can be added in the case of repeat offenders. In the case of Valancourt, a small publisher, the potential fines under the Library’s initial demand letter would have been in excess of $85,000 before adding the retail cost of the books.
“Mandatory deposit should be replaced with a properly funded collection strategy that permits the Library to acquire those works it actually wants, while also inviting, or formally incentivizing, truly voluntary contributions,” AAP’s brief states. “By providing carrots, not sticks, the Government could foster a robust national collection without contorting the integrity, interpretation and constitutionality of the Copyright Act.”
Read AAP’s amicus brief here.