The Copyright Quirk That Is Essentially a Tax on Speech (and a Takings)

A couple of months ago, I published Copyright Unbalanced: From Incentive to Excess, a collection of essays by free market thinkers edited by yours truly. The book has received some good attention and quite favorable reviews, so I’ve been pretty happy with the experience.

Then I got a letter from the Copyright Office.

“NOTICE OF MANDATORY DEPOSIT OF COPIES” it said at the top, and in pretty terse language it informed me, “This document constitutes written demand for the required deposit, under section 407 of the copyright law (17 U.S.C.), of complete copies of the best edition of the work … for the use or disposition of the Library of Congress.” Failure to comply, the letter said, would result in a fine of $250 plus the total retail price of the book (only $3.99 as a Kindle ebook, order now!).

And so it was I became acquainted with the Copyright Act’s mandatory deposit requirement.

If you file to register a copyright, in addition to paying a fee, you are required to hand over two copies of the work. That’s not what this is about. Quite apart from the deposit requirement tied to registering a copyright there is a separate requirement that, as the letter put it, “all works published in the United States under copyright protection” must be deposited with the Library of Congress.

Which begs the question: What works published in the United States are not under copyright protection? The answer is none. Since Congress got rid of formalities in 1988 to comply with the Berne Convention, authors need not take any affirmative action to avail themselves of copyright. Everything you write is under copyright the moment you finish it. So, in fact, the requirement is better stated as, “all works published in the United States” must be deposited with the Library of Congress.

Indeed, this is how the Library seems to acquire books and periodicals for its collection. It doesn’t buy them; it demands them.

At this point I’m sure you’re thinking the same thing I was thinking: If everything published in the U.S. must be deposited, what about the web? This has also occurred to the fine folks at the Library, and through a convoluted process they have chosen to exempt online publications from the requirement.

The next question that occurred to me was, How is this constitutional?

This deposit requirement looks a heck of a lot like a takings of private property for public use without just compensation in violation of the Fifth Amendment. And just as troubling, if any time you publish you have to cough up a couple of copies, that could be thought of as an invidious tax on speech.

A little digging turns up Ladd v. Law & Technology Press, in which the Ninth Circuit found that the mandatory deposit requirement did not violate the Constitution (certiorari was later denied). The Court concluded:

The deposit requirement is not an unconstitutional taking because it validly conditions the enjoyment of copyright[.] Moreover, the deposit requirement as a condition for the voluntarily sought benefit of copyright does not burden the expression or dissemination of ideas, and does not implicate first amendment rights.

But the thing is the case was decided in 1985, before Congress completely removed formalities. Prior to the Berne Convention Implementation Act of 1988, works were subject to mandatory deposit only if they were published in the United States with copyright notice. (Notice means that little © symbol, and the defendant in Ladd had used it in its publication.) That notice was a formality that signaled an intent by the publisher to avail itself of copyright protection. The 1988 Act removed the notice requirement so that effectively all works published in the U.S. were subject to the deposit demand.

In essence, by affixing copyright notice to a work that you published you were agreeing to be bound by the requirement to deposit works. If you didn’t want to make deposit, and you were willing to forgo copyright, you could simply not affix notice to your publication. But after the 1988 Act, notice is completely optional. There is no way to decline copyright and thus no way to exempt oneself from the deposit requirement. So, it seems to me the reasoning in the Ladd decision no longer applies, and I can’t find a subsequent test of the issues.

Maybe this is my chance to fight something all the way to the Supreme Court.

Unfortunately, I don’t think we’d make a good test case. I could see a court ruling against us arguing that even though notice is no longer required, the fact is that in the introductory pages of Copyright Unbalanced there is a copyright notice and the “©” symbol. I imagine that every other publisher who gets a demand letter from the Copyright Office likely has behaved in some similar way that signals that they accept the copyright privilege.

To get a good test case you might need a demand letter sent to a publisher who clearly wasn’t claiming copyright. And then they’d have to refuse to deposit and elicit a suit from the Copyright Office.

What this little tale shows is that when Congress got rid of formalities it unleashed all sort of unintended consequences. Some are especially pernicious, like the orphan works problem that is caused in part by a lack of a copyright registry.

To close this legal rathole on a positive note, here is a sliver of a silver lining. To the extent the current mandatory deposit requirement is ever really tested and a court finds it constitutional, then that might open up the possibility of reintroducing formalities without violating the Berne Convention. If the government can require publishers to deposit their works not as a condition of copyright, but just because, then requiring registration as well should not be a problem!