IP Law Daily, COPYRIGHT—D.D.C.: Deposit copy requirement, under constitutional challenge, remains in place for now, (Mar 27, 2026)

By Matthew Hersh, J.D.

A 2023 court of appeals ruling only bars the provision as it was implemented at the time.

A longstanding statutory requirement that copyright owners deposit copies of their published works with the Copyright Office will remain safe—at least for now—from a constitutional challenge, the U.S. District Court for the District of Columbia has held. But the court, in issuing a narrow form of declaratory relief that it described as consistent with a 2023 court of appeals opinion, emphasized that the Office could no longer enforce the rule in the manner it had traditionally done (Valancourt Books, LLC v. Perlmutter, No. 1:18-cv-01922-ABJ (D.D.C. Mar. 25, 2026)).

The lawsuit involves one of the two different deposit copy requirements in the Copyright Act. Section 407 of the Act, codified at 17 U.S.C. § 407, requires every owner of copyright in a published work to deposit two copies of the work with the Copyright Office. Section 408 of the Act, codified at 17 U.S.C. § 408, is a separate deposit copy requirement that copyright owners must meet in order to obtain registration of their copyrights. The two deposit requirements are implemented in very different ways by the Copyright Office. For the general Section 407 deposit copy requirement, the Copyright Office has exempted a wide range of works from the deposit obligation and in most cases refrains from enforcement in the stated expectation that “deposit will be made voluntarily.” The Section 408 deposit copy requirement, on the other hand, is generally enforced more rigidly (although also not without exceptions as well) as it is an express precondition to registration.

This case involves the first of the two deposit copy requirements—that is, the one set forth in Section 407. More specifically, it arises out of a dispute between the Copyright Office and Valancourt Books, an independent press based in Richmond, Virginia, that publishes rare and out-of-print fiction. Although the Copyright Office generally relies on voluntary compliance for Section 407, as noted above, it tends to be more demanding of commercial publishers. Accordingly, the Copyright Office demanded in 2018 that the publisher provide a copy of 240 books it had published. When the publisher refused, citing the cost to a publisher of its size, the Copyright Office eventually responded with a threat to fine the publisher.

That led the publisher to file a lawsuit against the Copyright Office, alleging that the deposit requirement constituted a deprivation of the publisher’s right to free speech under the First Amendment as well as an unconstitutional taking under the Fifth Amendment. The district court granted summary judgment to the government, but in 2023 the D.C. Circuit reversed and remanded on grounds that the statute, as then implemented by the Office, worked an unconstitutional taking on Valancourt. However, the court made clear that the statute might survive constitutional scrutiny if the Office were to lighten the burden on copyright owners, such as accepting deposit copies in electronic form or allowing publishers to avoid the requirement altogether by abandoning their copyright. In a 2024 letter to Congress, the then-Solicitor General to the United States, Elizabeth Prelogar, explained that the Office planned to implement these two suggestions.

That left the district court with a decision to make: what to do now that the case had been remanded? All parties agreed that the Copyright Office could no longer demand that Valancourt provide two physical copies under the terms and conditions of the 2018 demand letter. But that was not satisfactory to Valancourt, who demanded that the court enjoin the government from enforcing the Section 407 deposit copy requirement upon it under any terms or conditions—including, among those, the less burdensome conditions suggested by the 2024 Prelogar letter. Those starkly differing viewpoints led to this decision.

Scope of injunction. The court, agreeing with the government, issued only a narrow injunction. When the court of appeals issued its ruling, the court noted, it emphasized that its decision was “tied to the particular circumstances” of the case before it. Thus, to comply with the direction to award relief commensurate with the scope of the appellate decision, the court noted, it was “obliged to remedy the harm identified and nothing more.” And here, the court emphasized, the harm identified in the court of appeals decision resulted “solely from the application of a single demand letter”—namely, the August 2018 demand letter to Valancourt. “That specific injury,” the court found, “will be fully redressed by a declaration that the [letter] violated the Takings Clause and an injunction prohibiting [the Copyright Office] from enforcing that demand for copies of [Valancourt’s] publications under penalty of fines and other monetary sanctions.” There was no need, as a result, to go further.

And not only was broader relief outside the scope of the appellate mandate, the court found, but Valancourt lacked standing to seek such broader relief anyway. Valancourt sought not only relief from the 2018 demand letter but also relief from any future demand the Copyright Office might make under Section 407. But there was “no evidence in the record” that the Office would issue a future demand letter to Valancourt, the court noted; in fact, the Office had stated it did not intend to do so. “And even if [the Office] were to issue a future demand letter,” the court found, “there is no basis for knowing what that demand letter might seek and on what basis, or what mechanisms, if any, [the Office] might threaten or deploy in order to enforce the demand.” In other words, the court concluded, “it is impossible to know whether Valancourt will suffer an injury in the future, much less whether that injury will be an irreparable one.” Valancourt would be limited to a narrow injunction.

The Case is No. 1:18-cv-01922-ABJ.

Judge: Jackson, A.

Attorneys: Renee Flaherty, Institute for Justice, for Valancourt Books, LLC. Daniel Riess, U.S. Department of Justice, for Shira Perlmutter.

Companies: Valancourt Books, LLC

Cases: Copyright DistrictofColumbiaNews