Many people are unaware of a federal copyright statute that requires owners of material published in the United States to furnish the federal government with two copies of each item published. Section 407(a) of the Copyright Act of 1976 (17 U.S.C. § 407) 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—(1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with any printed or other visually perceptible material published with such phonorecords.” A recent lawsuit highlights constitutional problems with this statutory provision and the undue burdens it can place on publishers.
Valancourt has published more than 400 books and adds about twenty new titles yearly; but unlike traditional publishers, Valancourt does not keep copies in stock. Rather, it employs a print-on-demand model, wherein “James edits each book and lays out galleys, but nothing is physically printed until a customer or retailer actually orders a book.” Not keeping books in stock proved problematic when Valancourt received an email on June 11, 2018, from the United States Copyright Office, stating that Valancourt was not complying with the mandatory- deposit requirement and that if he did not comply, he could face large fines. After an unsuccessful attempt to resolve the matter, Valancourt filed a lawsuit in federal court, challenging the constitutionality of section 407, in light of the Fifth Amendment’s Takings Clause and the First Amendment’s protections of freedom of speech and freedom of the press.
This Article argues that the mandatory-deposit requirement is unnecessary and, on at least three grounds, unconstitutional.
Drew Thornley, The Copyright Act’s Mandatory-Deposit Requirement: Unnecessary and Unconstitutional , 53 Loy. L.A. L. Rev. 645 (2020).