FSF Senior Fellow Defends D.C. Circuit’s Valancourt Books Decision

The U.S. Court of Appeals for the D.C. Circuit’s Aug. 29 decision in Valancourt Books v. Garland said correctly the book deposit requirement contained in Section 407 of the Copyright Act, as applied to a book publisher, “was an unconstitutional taking of private property” under the Fifth Amendment, said an analysis Wednesday by Seth Cooper, Free State Foundation director-policy studies and a senior fellow. The decision was a “straightforward Takings Clause case” because copies of copyrighted books are personal property, and the deposit requirement involved “no form of just compensation or like kind exchange to justify it,” said Cooper. In Valancourt, the D.C. Circuit observed that the deposit requirement isn’t a precondition for copyright protections, “and it rightly concluded that Section 407 confers no benefit for compliance,” he said. But the court's analysis in Valancourt “also deserves scrutiny for appearing to deviate from the Founding Fathers' understanding of the nature of copyrights as a type of public contract between creative artists and the government that is rooted in natural property rights,” he said. Valancourt also provides a window “into the open question of the applicability of the Takings Clauses” of the Fifth and 14th amendments “to takings by state governments of exclusive rights in creative works,” he said.