Whether the mandatory deposit requirement for copyrighted works constitutes an unconstitutional taking of private property under the Fifth Amendment's Just Compensation Clause

No question identified. : 2 1. This case concerns a longstanding requirement that the owners of copyrighted published works deposit two copies of the work with the Library of Congress. 17 U.S.C. 407. As amended in 1988, Section 407 of Title 17 states that except as exempted by the Register of Copyrights, “the owner of copyright or of 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 with the Copyright Office “for the use or disposition of the Library of Congress.” 17 U.S.C. 407(a)-(b). The law does not require deposit of the work before copyright protection vests; copyright protection attaches to copyrightable works automatically upon their fixation in a tangible medium of expression. 17 U.S.C. 102(a). If a copyright owner does not deposit copies of a work after publication (and if suitable copies have not otherwise been delivered to the Office through registration), the Copyright Office may make a written demand for the deposit upon the publisher or the copyright owner. If a demand has been made, the copyright owner or publisher has three months to comply before it is subject to fines and costs for the Library to purchase the work. 17 U.S.C. 407(d). 2. Respondent Valancourt Books is a book publisher in Richmond, Virginia. In June 2018, the Copyright Office sent an email to respondent requesting deposit of 341 published books. 3 C.A. App. 122-123, 126-132. The request included specific notices for deposit of each work, and stated that if respondent was unable to supply any individual book, it should return the relevant notice with a written explanation. Id. at 122-123. Respondent responded to the demand stating that it did not keep excess physical copies of its books because it relied on a print-on-demand business model and that printing and shipping the books would be cost-prohibitive. Id. at 123, 133-135. Respondent also stated that it had provided some of the works to the Library in connection with a voluntary deposit program. Id. at 133-135. The Copyright Office later sent respondent a new letter with a revised demand reducing the number of requested works and setting new dates for compliance. Id. at 141. Respondent subsequently filed this suit in the United States District Court for the District of Columbia. Respondent alleged that the requirement to deposit copies of new copyrightable works is an unconstitutional taking of private property under the Fifth Amendment and a burden on freedom of speech in violation of the First Amendment. The district court rejected respondent’s arguments, granting summary judgment for applicants on the ground that the Copyright Act confers a statutory benefit that is conditioned on the receipt of two copies of the work and thus does not run afoul of the Constitution. C.A. App. 185. The court explained that “[p]Jublishers are not required to make the deposit in order to print books or to sell them; the obligation is a 4 condition of the receipt of the governmental benefit of copyright protection.” Id. at 187. The district court also rejected respondent’s First Amendment claim. Id. at 198. 3. The court of appeals reversed. App., infra, la-28a. The court held that the mandatory deposit requirement violates the Just Compensation Clause because it allows “the government [to] directly appropriate[] private property for its own use.” Id. at 13a (quoting Tyler v. Hennepin Cty., 143 S. Ct. 1369, 1376 (2023)). The court rejected the government’s argument that the deposit requirement represents a “voluntary exchange for a government benefit.” Id. at 14a. The court also rejected the government’s argument that the mandatory deposit requirement was permissible because copyright owners can “disavow copyright protection and thereby avoid the deposit requirement.” Id. at 20a. Because the court of appeals found that the mandatory deposit requirement viol