Challenge,  publishing

Indie Publishers and Copyright

August 30, 2023 /

A Court Case…

More than likely, this is something almost no indie writers and publishers even know about.

Seven years ago, WMG Publishing got a demand letter from the copyright office that we needed to submit two of our best copies of every title we had published. Or pay a $250 fine per title.

Yikes… Yeah, I know you didn’t know about this… Not something talked about in indie publishing circles and because most writers refuse to learn copyright, not something that would ever come up.

Until you get the demand letter from the Copyright office like we did. Kris and I knew about it from our days at Pulphouse Publishing, but to be honest, until that demand letter, we flat didn’t care.

We spent a stupid amount of time and money for books getting this caught up and then put the copyright office on all our subscription lists and tried to set up a system to do this. We had about 400 titles at that point. (It cost us a lot in copies, thankfully not all 400 titles were in paper, but $250 per title fine might have really hurt… Do the math.)

And every-so-often, one of us would remember and we would send the copyright office two copies of a bunch of titles.

This has NOTHING to do with registration of the copyright. It was just a part of the copyright act, Section 407 to be exact.

And it has NOTHING to do with the copyright on anything. These days that is automatically given at fixation of the work.

A very quick history how we got to this in the US.

Author’s rights to their work and to benefit from it is in the United States Constitution. And in the Copyright act of 1790 (Mostly because Thomas Jefferson wanted to get books for the Library of Congress), a mandatory deposit of a physical copy was required to get copyright protection.

In the Copyright Act of 1909, a bunch of things were changed, but deposit of copies was still needed to maintain copyright in a work.

The Copyright Act of 1976 made copyright in any work automatic on fixation. It removed any idea that a creator could lose copyright for not depositing books with the Library of Congress. But they left in Section 407 that demanded two copies from all publishers.

In 1988, the Copyright rules were again changed in the US to conform with the Berne Convention. No requirement of any kind is needed for the creator to retain copyright under Berne. But yet Section 407 continued.

As the judge in the DC Circuit Court case decided a few days ago said,

“Those statutory changes brought us to the present-day version of Section 407, whose obligations are triggered upon publication but whose fulfillment provides no marginal benefit to copyright owners.”

So back about 2018, a small indie press in Virginia called Valancourt Books got a demand letter from the copyright office for deposit of “best edition” of their books they had published. After some negotiation (which we did as well a few years earlier but sent the books), Valancourt Books gave up and sued the US Government.

They initially lost and appealed to the DC Circuit Court.

The court ruled two days ago that the government can not do this anymore. Since the publishers get NOTHING in return for the government demanding books, and no copyright requirements attach under the 1988 changes to the copyright act, the demanding books or a fine was an unconstitutional taking of property in violation of the Fifth Amendment.

In this country, the government cannot take property without paying a fair price for it. Or giving fair value in something in return.

So guess what, indie publishers? Even though you didn’t know about this and were not following the law under Section 407 of the copyright act, you are now off the hook.

As of two days ago.

Here is the link to the full ruling and trust me, it is worth reading.

Valancourt Books v. Garland, No. 21-5203 (D.C. Cir. 29 Aug. 2023).
And for heaven’s sake, start learning copyright. It will make you a ton more money over time.

46 Comments

  • Warren Bluhm

    August 31, 2023 at 4:21 am

    Perhaps those who dutifully submitted those two copies to the Library of Congress are now entitled to submit an invoice?

  • Charley

    August 31, 2023 at 5:58 am

    Wow. Just wow. I’ve been daily working my way through the copyright handbook a section at a time. Let’s me absorb it in small chunks, but I hadn’t come across this yet. Would have panicked, so thank you so much for sharing. We all owe Valancourt Books a huge thank you!

  • T Thorn Coyle

    August 31, 2023 at 7:18 am

    Wow!
    I only learned of the “two best copies” clause a month or two ago and started wondering what to do about it.

    So this is very good news. Thank you for passing it along.

      • T Thorn Coyle

        August 31, 2023 at 2:10 pm

        I shared your post in a writer’s group and found out that Denmark, Norway, Sweden, Finland and Germany also require book deposits.

        What amazes me is that it took from 1978 to now for this to be challenged. Thank you, Valancourt!

        • dwsmith

          August 31, 2023 at 3:53 pm

          They are all signers of Berne, which requires no condition for the author to own and control copyright. They might not have a “Taking” clause, that the government can’t take property without compensation. Or maybe those governments pay for the books?

          • Fabien Delorme

            September 1, 2023 at 2:03 am

            France requires it too, and in fact we invented it (sorry). It’s almost as old as printing, in fact (1537, I just checked).

            But here (and probably in those other European countries), it’s in no way linked to copyright issues (copyright didn’t exist back then), but as a way to keep track of all books printed in the country, and for conservation purposes.

  • David

    August 31, 2023 at 8:37 am

    Good It was a wasteful practice without any purpose in the modern era. The copyright office should never require/request anything beyond digital copies.

  • Kate Pavelle

    August 31, 2023 at 8:50 am

    Whew! That’s a relief, Dean, and thank you for passing this on. This was an interesting read. My reaction to your post was one of horror, because I had sent my first few books in, but then I kind of fell off the wagon. It would’ve taken almost a thousand bucks to send those copies in!
    So we’re off the hook, and we can still send books if we want them in the Library of Congress.
    The case talked only about books, not about other copyrightable works, such as drawings. Did they also demand a copy of paintings and such, or was this printed matter only?
    Thanks again.

    • dwsmith

      August 31, 2023 at 12:47 pm

      You need to understand what you are licensing when you put a book on Amazon or Kobo and why you even can do that. Start with the Copyright Handbook from NoLo Press and then read what comes along. For example, read the case in this post. It will give you some information on how important all this is.

      • T Thorn Coyle

        August 31, 2023 at 2:13 pm

        A,

        If you can budget for it, I highly recommend taking Dean’s Bite Sized Copyright class. It’s a whole year of weekly videos and I’m getting a lot out of it. Worthwhile investment, in my opinion. I’ve already figured out a few extra ways to make $ from my IP.

  • Filip Wiltgren

    August 31, 2023 at 8:58 am

    Here in Sweden, we’ve got the same thing, but there is no fine. For a long time, it was one of those unenforced laws, until the Royal Library started allowing ebooks.

    Now, when you submit a book, it’s automatically added to the main Swedish library catalogue. So it costs you nothing, it’s searchable and if someone borrows it, you get paid by the library system, which is often more than the sale price for an ebook.

  • Cynthia Lee

    August 31, 2023 at 9:12 am

    I love Valancourt. I’ve already purchased many of their wonderful horror titles. I re-discovered Michael McDowell because of Valancourt. I’m just feeling the Valancourt love right now.

  • Chris York

    August 31, 2023 at 11:59 am

    I was aware, but I crossed my fingers that they wouldn’t notice me. Thanks for sharing this news. I can uncross my fingers, which will make typing easier 😁

  • Alexandria Blaelock

    August 31, 2023 at 6:59 pm

    Here in Australia we were required to deposit one copy per ISBN to the National Library, and one to the State Library. The fine is not much, and I haven’t heard of it being enforced.

    Having had access to a 100 year old book via the State Library of Victoria, I enjoyed adding my physical copies to the national memory, hoping someone in 100 years might enjoy them as much as I enjoyed mine.

    They recently amended it to one ebook to the National Collection, and while I don’t miss the cost, depositing an ebook doesn’t give the same thrill.

  • Annie Reed

    August 31, 2023 at 9:30 pm

    Thank you for posting that! I remember hearing about the Valancourt Books demand when it first occurred in 2018, but I hadn’t realized that they’d fought the demand. Good for them! I’ll have to go read the decision.

  • Chong Go

    August 31, 2023 at 11:21 pm

    I wonder what they did with all the copies they received? Do they really pay to maintain an Indiana Jones style warehouse somewhere?

      • Elina Winterstrang

        September 1, 2023 at 3:03 am

        Flabbergasted…I also assumed that they went into an actual library collection.

        In Israel the National Library gets an electronic copy, unless you for some reason want to deposit a physical copy. But since it’s made available for National Library visitors, like Filip said is the case in Sweden too at the Royal Library, that seems like a much better system. (Though here we don’t get paid when someone reads it that way. Sweden’s ahead there 😉

        Btw, been meaning to ask for a while now if there are any other writers/publishers here from the Jerusalem area? Whenever Dean, in one of his posts, mentions meeting in person with likeminded people in the business I wish I had something like that where I’m located. So, sending some feelers out to see if there’s anyone interested.

        • Jojoba

          September 2, 2023 at 3:05 am

          I actually worked in this division at the library of congress. Not every book is kept (we do perform weeding) but what does happen since the book passes several hands:

          – Gets reviewed by selectors to potentially be put in the Vault

          – Gets shuffled to other parts of the library (law library, folk life library, etc) because it would be a better fit there

          – Gets put into the Surplus division, where there is a library program that allows libraries big and extremely small around the US and world (including countries we’re not best friends with) to get these books to stock up their libraries.

          So, unless your work was deemed Total Trash by several people (which meant it was also held up and laughed at roughly around lunch time), it’s probably sitting on some senator’s library shelf, the shelf of a pocket library in Atlanta, or somewhere in Zaire or Russia. Or it is in wait of being picked

  • Blitchfield

    September 1, 2023 at 7:29 am

    All of this is now irrelevant thanks to Valancourt, but it appears that the handbook got it wrong.

    According to the NOLO Copyright Handbook:
    “The Library of Congress has its own deposit requirements for published works, which are seperate from those with the Copyright Office. However, the library’s deposit requirements are deemed satisfied when a work is registered and a deposit made with the Copyright Office.”

    Or am I misunderstanding? If you registered with the Copyright Office, you’d be good to go; otherwise, you might get a demand letter from the Library of Congress?

    Reading section 407 and the case link above, seems like you’d be on the hook with the library either way.

  • Kevin McLaughlin

    September 1, 2023 at 8:26 am

    This has been gradually moving in that direction for a while now, but it’s nice to have the courts rule on it.

    Now if only we could get the registration requirement to use the court system deleted, people in the US would have all of the same rights as copyright holders in nations which actually follow the Berne Convention — which bans the practice of mandating registration before copyright protection can be obtained; the US skirts this by not requiring registration for protection, just requiring it before you can sue. Passes the letter of the treaty without being anywhere close to the spirit of it.

    Anyway, this is a nice step in the right direction. The USCO already said ebook-only stuff was exempt about five years ago, and exempted print on demand stuff in 2020. Now regular offset printed books are as well. 🙂

  • C.E. Petit

    September 2, 2023 at 3:06 pm

    Just a couple of miscellaneous notes on this:

    (1) If one reads § 407, it makes clear (to lawyers!) that the Copyright Office is merely administering this on behalf of the Library of Congress. Which really isn’t much of a surprise, as — unlike every other Berne Convention signatory — the US Copyright Office is an office of the legislature; it’s part of the Library of Congress. I would make snide and sarcastic remarks about how this all by itself explains the superior web interfaces and accesses for the Patent and Trademark Office (part of the Department of Commerce, an executive-branch agency), but anyone who has ever had to deal with both would understand that the remarks are neither snide nor sarcastic.

    (2) Historically, prior to the 1870 Act deposit was made not to the Library, but to the United States District Court nearest the registrant (usually, but not always, the publisher). Then a couple of Congresscritters got the bright idea of directing deposits to the Library, so they wouldn’t have to approve an acquisition budget for their own library any more. (That’s not snide or sarcastic, either; nor limited to the US.)

    (3) The real distinction between US practice and foreign practice regarding “required deposits” is that we have a First Amendment; they don’t. (The Takings Clause stuff is the jurisprudential magician’s assistant.) In England, for example, it’s part of the business license requirements for the publisher to deposit a copy with the British Museum; and the deposit requirement is similarly located in business licensing provisions in Germany, Italy, and Sweden. (Those are just nations I’ve had reason to research fairly recently.) They are explicitly separate from the copyright statutes. (Conversely, the Republic of South Africa includes a deposit requirement in its copyright statute, but that statute also has a bunch of other doing-business provisions.) France is an outlier, but then France has the Dictionary Police, too…

    But here in the US, a “condition” of this nature constitutes a levy upon First Amendment activity… which is a distinct no-no. The DC Circuit would have been better advised to rely on the First Amendment, but then looking at who was on the panel somebody was going to insert a screed on takings…

    • dwsmith

      September 2, 2023 at 4:54 pm

      C.E., thank you!!! Super clear and helps since so many readers here are based in other countries besides the US.

      Very much appreciated.

  • Sheila

    September 4, 2023 at 7:34 am

    I always read when I first got into self publishing that the LoC didn’t want self published books, they just waived the requirement. They couldn’t deal with the amount of books being sent, most of it basically garbage and a waste of paper.

    But, it’s not a requirement now, so, whew. Better for us.