(I know, you have to be of a certain age to actually get that.) There was a fascinating decision today out of the DC Circuit on a matter that relates to copyright.
And private subsidies of government.
Under § 407 of the Copyright Act, part of the registration process is providing two "deposit copies" of the "best edition" of a book (and similarly for audio recordings… in language reminiscent of 1987, not even allowing for CDs!). But the statute also disclaims that "Neither the deposit requirements of this subsection nor the acquisition provisions of subsection (e) are conditions of copyright protection." So why? Well, subsection (b) rather gives away the game (emphasis added):
The required copies or phonorecords shall be deposited in the Copyright Office for the use or disposition of the Library of Congress. The Register of Copyrights shall, when requested by the depositor and upon payment of the fee prescribed by section 708, issue a receipt for the deposit.
That is — embedded in the Copyright Act but not a "condition[] of copyright protection" — this is to build the collection of the Library of Congress. Without appropriating any money to do so, and without paying the publishers/authors for doing so.1 And including the "disclaimer" buried in the middle of a section half a page away from the evil of § 411 — which denies copyright holders the ability to go to court without registration — in the middle of a chapter captioned "Copyright Notice, Deposit, and Registration."
I guess they thought we wouldn't notice. Although the deposit requirement is not (technically) a violation of the no-formalities requirement of the Berne Convention, the convoluted structure and wording, and the Copyright Office's overaggressiveness in fining publishers who don't comply, as an optional "donation" indicate it has no business in the Copyright Act. This resembles misorganized mandatory financial-disclosure forms for car loans2 … and if there's one class of individuals generally less sophisticated than used-car buyers, it's authors. (I've represented enough of both to have statistically valid data sets.)
In any event, a small publisher got irritated by the Copyright Office's demand letter, and sued. And won on appeal (PDF); the court held that
We agree with Valancourt that Section 407’s demand for physical copies of works, as applied by the Copyright Office here, represents an uncompensated taking of private property under the Takings Clause. We need not reach Valancourt’s First Amendment claim, as it seeks the same relief through that challenge.
Valancourt Books, LLC v. Garland, No. [20]21–5203 (D.C. Cir. 29 Aug 2023), slip op. at 13. I'm ordinarily no fan of takings jurisprudence, which has largely become a means of exercising individual-rich-ideologue vetoes over complex, interrelated planning of relatively large/expensive projects intended for general public benefit. But here, there's no prior government consideration of what property is being demanded at all.3
There is a curious, annoying omission (probably required by realpolitik masquerading as "separation of powers")4 of any discussion of what the actual benefit of deposit might be. Instead, the opinion focuses on the lack of benefit to those who deposit the copies, which is both a truism (especially given the inaccessibility of the Library of Congress collection!) and an inadvertent exposure of the logical flaw in takings analysis. It is, however, a logical flaw that comes directly from precedent, so in a sense the court was stuck with it (however illogical it is to force the benefit to be personal to the "donor"). Valancourt Books is very much an instance of multiple wrongs eventually leading to a right result… but one that will just encourage Congress to continue finding deceptive ways to avoid overtly and explicitly funding its own "library." (On all evidence, not nearly enough members of Congress actually use it…)
The principle problem with the deposit requirement is that it is dishonest (but then, that seems to be an essential attribute of Congressional campaigns these days). Functionally, it operates as a tax or other levy on activity that is not only to be "encouraged" by the Intellectual Property Clause, but is fundamentally inconsistent with the First Amendment's underlying values. I do not by any means advocate restricting collection development and maintenance at the Library of Congress; I just demand that Congress actually pay for it. That means no deposit requirement — and especially not one deceptively worded and placed so as to imply (even when "disclaimed") that fulfilling the deposit requirement is a condition of or in any way related to copyright, sort of like preprinting a line on the financing form, and probably in the wrong place, for an extended warranty on that used car (at an inflated price, influenced by the purchaser's… identity characteristics, but that's for another time). We don't accept this kind of chicanery in consumer transactions; we bloody well shouldn't be accepting it in statutory language. Maybe Congress is too embarassed to disclose how much it's saving by requiring deposits… especially in comparison to how much (little!) it actually expends on the arts in the first place.
- Isn't there a dispute going on in LaLaLand about this sort of thing right now? Keep in mind that the deposit copies are excluded from an author's royalty calculations, usually as "promotional" but sometimes as "spoiled or unsaleable." As my late friend Mr Ellison said, "They always want the writer to work for nothing."
- Go ahead. Read the counsel list. Ponder whether counsel on that list just might have had access to investigative and/or discovery materials that are not in the public record.
- At the statutory level, I do not believe that any such "prior consideration" would be constitutional. This is different from the discretion of the Librarian of Congress (and his/her subordinates as properly delegated) to develop and maintain the Library of Congress.
- This is a problem for another reason: Any "disrespect" shown by criticizing another branch of government for either exceeding its powers or dishonestly hiding its agenda is actually to the individuals involved, not the branch of government. That is a tricky political issue in itself; but criticizing particular Congressional acts (and omissions, for that matter) does not "disrespect" Congress or its powers, any more than does criticizing particular Executive acts show "disrespect" for the Executive, and similarly as to criticizing Judicial acts (and omissions). Pointing out an error is not "disrespect," or any real danger to the Republic.
Ideologues and self-interested twits keep using the phrase "separation of powers." I do not think it means what they think it does.