During late August when many of us were sitting by pools or on the beach reading a summer thriller, the United States Circuit Court of Appeals for the District of Columbia issued its own version of a thrilling interpretation of the Just Compensation Clause.

The Court’s decision was in a case involving a taking claim filed by Valancourt Books, LLC against the Attorney General and the Register of Copyrights of the U.S. Copyright Office. Valancourt challenged the Copyright Office’s requirement that it must deposit physical copies of the copyrighted books it has published or else pay large monetary fines to the Government.

Valancourt is an independent press that publishes rare and out-of-print fiction. Run out of the Richmond, Virginia home of its founder, Valancourt prints books only in response to specific requests or orders. Consistent with copyright laws, Valancourt places copyright notices in the books its publishes.

In 2018, Valancourt received a letter from the Copyright Office setting forth a demand under Section 407 of the Copyright Act for “one complete copy” of 341 books published by Valancourt. Section 407 states that “the owner of copyright or the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication . . . two complete copies of the best edition” of the work.”

Valancourt responded by explaining that it could neither afford to pay the fine nor to deposit the books requested. But Valancourt did offer to sell the requested books to the Copyright Office—at cost. The Government rejected Valancourt’s offer.

The Government instead insisted on payment of the fine or a physical copy of the books, and Valancourt sued in federal district court for the District of Columbia, claiming that the Government’s demand for its books without just compensation constituted a taking. The district court granted summary judgement for the Government.

The D.C. Circuit reversed that ruling, and remanded the case back to the district court “with instructions to grant summary judgment to Valancourt consistent with [the Court’s] opinion.” The D.C. Circuit’s ruling expressed a strong statement in support of property rights protection:

By requiring copyright owners to provide physical copies of books, the mandatory deposit provision “effect[s] a ‘classic taking in which the government directly appropriates private property for its own use.’” (quoting Tyler v. Hennepin Ctny (a recent Supreme Court decision involving home equity theft)).

Read D.C. Circuit’s full decision here.

Read Marzulla Law’s Amicus Brief here.