Throwing the Book at an Outdated Federal Law

Outdated technology gets replaced. Outdated businesses get crushed by innovative competitors. But as one small-business owner has recently learned, outdated laws just keep going. The U.S. Copyright Office is using one of these outdated laws to threaten a small publisher, Valancourt Books, with fines totaling nearly six figures for not sending the government free books.

The law that the Copyright Office is enforcing is a relic of an era when the copyright system in this country functioned very differently than it does today. Two hundred years ago, if you wrote a book and wanted it to be protected by copyright, you had to register your copyright by sending copies of the book to the federal government. Today, however, everything you write is automatically copyrighted the moment you put pen to paper. Nevertheless, the Copyright Office keeps demanding books and threatening publishers with crippling fines.

For a big publisher like Random House, this demand would be no more than an inconvenience, but Valancourt is a print-on-demand publisher, operated out of the home of its founder, James Jenkins. Valancourt keeps no books in stock, and sending the government every single book in its catalog, as the Copyright Office has demanded, would cost thousands of dollars that Valancourt can’t afford.

Jenkins founded Valancourt in 2005 after he discovered that a book he wanted to write about for a graduate school application was available in only a single location in North America—the microfiche archives at the University of Nebraska. After driving halfway across the country to borrow the book, Jenkins had a realization: There was no reason, in the modern world of print-on-demand technology, that classic literature should ever fall out of print. He decided he would try his hand at publishing some of his favorite forgotten classics, and Valancourt Books was born.

Today Valancourt is a small but successful publisher, specializing in gothic, horror, early LGBT literature, and other forgotten fiction, with over 400 titles in its catalog. Valancourt books are now used in college courses and have been favorably reviewed by major publications around the world.

Valancourt is an innovative business with a noble mission. It should be lauded for its work, not bullied by petty bureaucrats enforcing archaic laws. That is why Valancourt and IJ have teamed up to challenge the mandatory book deposit law. Antiquated laws left standing mean countless people and businesses risk the same treatment that Valancourt received: being threatened and potentially destroyed, simply because a federal official happened to notice them.

The law is unconstitutional for two reasons: First, it requires people to give up their property to the government without any compensation, in violation of the Fifth Amendment’s Takings Clause. If the government wants a book, it should buy it like everyone else. Second, the law violates the First Amendment because it burdens free expression. People have a right to speak and to publish without notifying the government that they are doing so or incurring significant expenses. IJ’s lawsuit will vindicate those essential rights—while taking one more outdated law off the books.