[00:00:00] Speaker 00: Case number 21-5203, Ballant Court Books, ALC at Ballant versus Merritt B. Garland, Attorney General, and Cheryl Perlmutter in her official capacity as the Registrar of Copyrights of the U.S. [00:00:13] Speaker 00: Copyright Office. [00:00:15] Speaker 00: Mr. McNamara, Bardee-Ballant, Ms. [00:00:17] Speaker 00: Moyer, and Brady Epleys. [00:00:19] Speaker 03: Good morning, Council. [00:00:20] Speaker 03: Mr. McNamara, please proceed when you're ready. [00:00:28] Speaker 04: Thank you, Your Honor. [00:00:29] Speaker 04: May it please the Courts [00:00:30] Speaker 04: This case began when the government sent Ballancourt books, a series of demand letters threatening it with tens of thousands of dollars in fines because it had published books with copyrightable material without providing copies of those books to the government for its own use. [00:00:45] Speaker 04: That demand works at taking and it violates the free speech laws of the First Amendment by imposing a burden on protected speech. [00:00:52] Speaker 04: And it does these so clearly, apparently, [00:00:55] Speaker 04: that the government expends most of its energy running away from the plain language of its own demand letters and the plain language of the underlying statutes. [00:01:04] Speaker 04: The government instead would have this work focus on its new litigation position, announced for the first time in its summary judgment briefing below, that VALENTORP can now comply with this demand by depositing e-books, electronic books, instead of physical books. [00:01:19] Speaker 04: And I don't think that e-books get the government out of the box here for at least three reasons. [00:01:24] Speaker 04: As to Valencourt's future activities, there's a huge voluntary cessation problem. [00:01:29] Speaker 04: There's been no change in law or policy or regulation. [00:01:33] Speaker 04: There's no barrier to the government tomorrow demanding a physical copy of the next book, Valencourt. [00:01:38] Speaker 02: Indeed, don't their statements indicate that they can switch back? [00:01:43] Speaker 04: Yes, Your Honor, there's nothing to stop the government. [00:01:45] Speaker 02: No, no, but I mean, isn't there a statement in the record that the government makes it clear that they can switch back to the hard copy? [00:01:52] Speaker 02: No guarantee that the electronic version [00:01:56] Speaker 04: There's really nothing in the record about the government's position here at all. [00:02:00] Speaker 04: It just comes from their briefs. [00:02:03] Speaker 04: The only thing in the record is a confidential settlement offer that I think not really properly before the court. [00:02:09] Speaker 04: But even if there weren't a voluntary cessation problem, as the books the government's already demanded, the record also reflects that Valencourt can't provide electronic versions of all of them. [00:02:19] Speaker 04: There's at least a five-year span where Valencourt no longer has the underlying electronic [00:02:24] Speaker 04: So as to those, we're still talking just about a demand for physical books. [00:02:29] Speaker 04: And even if this case were just about e-books, and I don't think it is, a demand for e-books would still work a taking and still impose a burden on Balancourt's First Amendment speech. [00:02:40] Speaker 04: I think it still works a taking because Balancourt sells e-books. [00:02:44] Speaker 04: It sells them at retail. [00:02:45] Speaker 04: And so the character of the government action here is demand that says, that thing that you're selling at retail, give it to us for free so that we can keep it forever. [00:02:54] Speaker 03: I think that works. [00:02:56] Speaker 03: It does look different, though. [00:02:57] Speaker 03: Of course, you're making the argument that it's still a taking if it's purely electronic. [00:03:05] Speaker 03: But it does look different because there's not the same scarcity issue with electronic documents as there is with a physical document. [00:03:14] Speaker 03: There's actually a transfer or something when it's a physical document. [00:03:17] Speaker 03: And so it would raise more complicated questions, it seems to me, under the Takings Clause, if we're talking about a purely electronic medium as opposed to a physical [00:03:24] Speaker 04: I do think it would be more complicated, Your Honor. [00:03:26] Speaker 04: I think that analysis still comes out in our favor. [00:03:29] Speaker 04: The question would come down to the extent to which the e-book, the file itself, is property. [00:03:34] Speaker 04: And I think it would be that states are a bit in flux on the status of electronic files, understandably. [00:03:39] Speaker 04: But the case law is clearly trending in favor of recognizing that electronic files are property that can be trespassed upon, be converted, even be forfeited. [00:03:48] Speaker 04: And all those cases, I think, suggest that a demand for a particular e-book, even if you can make more copies of the e-book, is still a taking. [00:03:57] Speaker 04: But even if it weren't a taking, it's still a First Amendment birth. [00:04:00] Speaker 04: The record reflects that Balancourt would have to spend hours on regulatory compliance instead of on its core mission of publishing books. [00:04:08] Speaker 04: And the only reason it would have to spend hours on regulatory compliance is that it published books that contained copyrightable material. [00:04:17] Speaker 04: And publishing copyrightable material simply isn't something the government can punish. [00:04:21] Speaker 04: It isn't something to which the government can attach regulatory obligations. [00:04:25] Speaker 02: Well, I mean, that's one way to analyze it. [00:04:27] Speaker 02: But why do you put publication and copyright together? [00:04:32] Speaker 02: Is that very inexorably tied or not? [00:04:34] Speaker 02: I mean, that's the favorable way for you to argue the case. [00:04:37] Speaker 02: But we're really talking on the Supreme Court said a long time ago, this is a government-conferred exclusive right. [00:04:42] Speaker 02: The only thing that's changed is now that the publication and copyright dates are the same. [00:04:47] Speaker 02: And in my mind, analytically, I'm struggling to figure out why that should make a difference. [00:04:52] Speaker 02: The Court has already ruled on this. [00:04:54] Speaker 02: This is a government-conferred right for which they're making a reasonable request deposit. [00:05:00] Speaker 02: And the Supreme Court has said, yeah, that's fine. [00:05:04] Speaker 02: As I'm understanding your argument, the difference now is maybe this burn thing, which I think can't get you where you want to go, and also the fact that the copyright and publication are now on the same date. [00:05:18] Speaker 02: And my response to that in preparing is, so what? [00:05:22] Speaker 04: Well, I think the difference here, copyright certainly is a government-created benefit, and the government included. [00:05:28] Speaker 02: You don't start with it like the right to plant, in the case that you all keep arguing. [00:05:32] Speaker 02: It's more like Monsanto to me. [00:05:34] Speaker 02: You're not born with the right to copyright. [00:05:38] Speaker 02: You're born with the right to publish. [00:05:40] Speaker 02: That's true. [00:05:42] Speaker 02: But not with the right to copyright. [00:05:44] Speaker 02: And you only get that by virtue of the government conferring it. [00:05:47] Speaker 02: And the cases seem to suggest, at least as I'm preparing your side of the case, seem to suggest that the government can certainly condition. [00:05:56] Speaker 02: I agree with you to a point, Your Honor. [00:05:57] Speaker 04: The government certainly can condition copyright. [00:06:00] Speaker 04: The government could adopt a statute that says copyright is conditional on [00:06:04] Speaker 04: Depositing books or on paying a fee or on anything at once. [00:06:07] Speaker 04: The key here is the government hasn't done that. [00:06:10] Speaker 04: Section 407 explicitly says that mandatory deposit is not a condition of copyright. [00:06:16] Speaker 04: If it's not a condition of copyright, then it's not a condition on that government benefit you're discussing. [00:06:21] Speaker 04: Instead, copyright is automatic. [00:06:23] Speaker 04: The word the statute uses is subsists. [00:06:26] Speaker 04: Copyright subsists the moment a new idea is written down in any fixed medium. [00:06:30] Speaker 04: And that means that copyright is instantaneous. [00:06:33] Speaker 04: It's not offered in exchange. [00:06:35] Speaker 04: It's a background regulatory principle. [00:06:37] Speaker 04: The instant value court writes a new footnote for a new author bio or asks a friendly academic to write a foreword to an old novel that it's republishing, copyright instantly adheres. [00:06:48] Speaker 03: Well, we know that has to be the case because the government is making the argument that you can avoid the deposit requirement if you disavow the copyright. [00:06:57] Speaker 03: And you can only disavow a copyright if the copyright already existed. [00:07:00] Speaker 03: and the copyright existed at the moment of creation. [00:07:03] Speaker 03: So I think the government buys into the notion that there's a sequential dynamic going on here where copyright attached at the moment of creation. [00:07:13] Speaker 03: The publication, which may or may not come later, is what triggers the deposit. [00:07:19] Speaker 04: I don't think disavowal really gets us anywhere here, Your Honor, for two independent reasons. [00:07:24] Speaker 04: One, there is no statutory mechanism for disavowing copyright. [00:07:29] Speaker 04: Copyright abandonment is a judge-created defense to a copyright infringement lawsuit. [00:07:34] Speaker 04: It's akin to logic. [00:07:36] Speaker 04: It says, if you've acted like this isn't yours, we're not going to hear your claim. [00:07:39] Speaker 03: Right. [00:07:40] Speaker 03: I know that you have your argument on how disavowal isn't a real option, and I think there's something to it, and want to hear from the government on that. [00:07:46] Speaker 03: I'm only making the point that the conceptual framework you laid out, there's no dispute about that. [00:07:52] Speaker 03: Because the government's argument, I think, is a favorable point. [00:08:00] Speaker 03: argument that your client can avoid the deposit requirement by disvaluing copyright necessarily presupposes that copyright already exists. [00:08:10] Speaker 04: That's right, Your Honor, and I think there's another thing lurking in the government's argument. [00:08:14] Speaker 04: The government doesn't acknowledge which is the burden that's imposing. [00:08:17] Speaker 04: The way valid court operates is it will go to a friendly academic and say, will you write a foreword to this novel that we're repurposing and republishing? [00:08:25] Speaker 04: And the academic writes it and informally license it to valid court. [00:08:29] Speaker 04: And as I understand the government's argument, that transaction was illegal. [00:08:33] Speaker 04: That transaction should have been formalized where the academic could formally disavow the copyright, whatever process that entails. [00:08:41] Speaker 04: And the government has changed its mind about what that process looks like. [00:08:45] Speaker 04: or Ballinport should have somehow publicly proclaimed that the academic didn't have a copyright, our position is that it's perfectly legal just to solicit someone to write something and then publish that without attendant regulatory compliance burdens. [00:09:01] Speaker 04: And those regulatory compliance burdens are enormous here. [00:09:04] Speaker 04: There has been no dispute in the record that complying with the government's demand here would cost Ballinport endless hours of regulatory compliance. [00:09:11] Speaker 04: And as to the demand for physical books, [00:09:13] Speaker 04: thousands of dollars in collecting these books, it doesn't even have. [00:09:17] Speaker 03: Can I ask you as a conceptual matter? [00:09:20] Speaker 03: I take it that you don't disagree that if the copyright laws existed as they did in the 1800s, that that was a voluntary exchange, that the deposit requirement was voluntary exchange. [00:09:34] Speaker 03: Absolutely. [00:09:34] Speaker 03: There's nothing wrong with the deposit requirement that's tied to the existence of a copyright [00:09:41] Speaker 03: I think that's right, Your Honor. [00:09:42] Speaker 04: I think maybe the best way to illustrate that is to contrast Section 407, which we're challenging with Section 408, which we're not. [00:09:49] Speaker 04: Section 408 is the registration statute that says if you want a registered copyright, something you can actually enforce in federal court, you have to exchange your property. [00:09:57] Speaker 04: You have to exchange a copy of the work. [00:09:59] Speaker 04: That's an exchange. [00:10:00] Speaker 04: That's a trade. [00:10:01] Speaker 04: And in fact, in Cedar Point, the Supreme Court specifically said that a license permit or registration is the kind of thing the government can trade. [00:10:08] Speaker 03: So if to follow that through, [00:10:11] Speaker 03: if the state of the law beforehand was not a taking. [00:10:15] Speaker 03: And then what happens is Congress amends the law. [00:10:19] Speaker 03: So not to say that copyright arises at the moment of creation and the deposit requirement triggers at the moment of publication, but to say that we're worried about the cost of the deposit requirement, of it being [00:10:39] Speaker 03: the ultimate sanction of losing copyright protection. [00:10:41] Speaker 03: So we're going to impose a lesser cost. [00:10:43] Speaker 03: But it's still not something, it's not something that triggers only upon publication. [00:10:47] Speaker 03: It's still something that affects the existence of the copyright to begin with. [00:10:51] Speaker 03: That would still be a voluntary exchange of the kind that Monsanto said wouldn't be taking. [00:10:58] Speaker 04: I think that's probably right, Your Honor. [00:10:59] Speaker 04: If Congress, in section 407, instead of saying mandatory deposit isn't a condition of copyright, said it's a condition subsequent to copyright, [00:11:07] Speaker 04: That, too, could be seen as a voluntary exchange. [00:11:10] Speaker 04: The problem is copyright subsists automatically. [00:11:13] Speaker 04: And upon the act of publication, Ballant Court incurs these obligations to provide copyright to the government. [00:11:19] Speaker 04: And I think that does go right to the heart of Monsanto. [00:11:22] Speaker 04: And Monsanto, the Supreme Court, very clearly says, look, no one here has challenged that the government can just prohibit selling these hazardous chemicals, can license it however it wants. [00:11:32] Speaker 04: And so long as that's true, demanding property in exchange with a license isn't going to work at taking. [00:11:37] Speaker 04: But the government can't prohibit publishing books. [00:11:40] Speaker 04: It can't prohibit publishing books that contain new ideas in them. [00:11:43] Speaker 04: That is as fundamental as an American right that exists. [00:11:46] Speaker 04: And I think that's the problem with the government's position here. [00:11:49] Speaker 04: It's not a condition on copyright. [00:11:51] Speaker 04: It's not an exchange for anything. [00:11:53] Speaker 04: It's just a burden imposed on small publishers like my client in order to make sure the government doesn't have to pay for the books it wants. [00:12:00] Speaker 04: And I think that really illustrates the overbreath problem with what the government's doing. [00:12:06] Speaker 04: is that to avoid paying however much it would cost for the books the government actually wants, it's imposed a burden on everyone who publishes copyrightable material. [00:12:15] Speaker 04: And the government, I think, has run away from the idea that this is a burden on copyrightable material. [00:12:20] Speaker 04: But that is the justification in their demand letters that is still, as of this morning, the Copyright Office's explanation of Section 407 on its website I checked this morning, it still says the law requires two copies of the best edition of every copyrightable work published in the United States. [00:12:35] Speaker 04: And what it gets is a flurry of books that it doesn't want. [00:12:39] Speaker 04: There's no question in the record that the government gives away tens of thousands of books a year, and that it destroys so many books that it cannot bother to keep count of how many it's destroyed. [00:12:49] Speaker 04: All of this in service of just avoiding paying for things that are freely available for sale and retail. [00:12:56] Speaker 04: With the purpose of transferring the burden of maintaining a public library, which we concede is a valid public government interest, but transferring the cost of that from the public list [00:13:06] Speaker 04: onto the backs of publishers who have done nothing wrong beyond publishing copyrightable information. [00:13:12] Speaker 02: If this was an opt-in scheme, would the result be different in your view? [00:13:16] Speaker 02: If copyright was an opt-in scheme? [00:13:20] Speaker 02: Unquestionably, Your Honor. [00:13:23] Speaker 04: copyright were an opt-in scheme, the government could condition it on any reasonably tailored condition. [00:13:30] Speaker 02: So that's your answer to my starting question. [00:13:32] Speaker 02: When they put the two together, they're effectively regulating the rights of publication. [00:13:37] Speaker 04: That's exactly right, Your Honor. [00:13:38] Speaker 04: If you combine automatic copyrights with obligations from the instant you publish automatically copyrighted material, what you've done is make it illegal to publish a book without fulfilling your attendant regulatory obligations, and that violates both the First Amendment [00:13:53] Speaker 03: Can I ask you, we will give you some time for rebuttal. [00:13:57] Speaker 03: As between the First Amendment claim and the Takings claim, put aside the First Amendment claim that has to do with enforcement, because it seems to me the remedy, if you were to prevail on that, would be different, because that's just to end the enforcement practice that raises the question. [00:14:12] Speaker 03: I agree. [00:14:13] Speaker 03: But under the broader First Amendment argument, which is that even if you assume it's content neutral and you just go to the statute, is there a difference between the Takings claim and the First Amendment claim? [00:14:22] Speaker 04: I think the only difference, Your Honor, is to the extent the court decides to address the e-books question, the burden on the publisher is roughly the same whether they have to go through compliance to deposit and record the deposit of physical books or electronic books. [00:14:37] Speaker 04: And it might be easier to resolve the case on the First Amendment basis, because then I think e-books fall out entirely. [00:14:43] Speaker 04: You don't have to address my argument about whether a demand for an e-book or a piece of software or a subscription website is a taking, because the only question is whether it's a burden [00:14:53] Speaker 03: Right, OK, so then in terms of physical copies, let's just assume we're just ignoring ebooks altogether in terms of physical copies. [00:14:59] Speaker 03: Is there any difference? [00:15:00] Speaker 04: I think they work the same, and I think the district reports analysis largely work the same, where it rejected our takings claim on the theory that this was an exchange. [00:15:08] Speaker 04: Was it conditioned? [00:15:09] Speaker 04: And then it rejected our First Amendment theory on the grounds that the government can impose these burdens because this is an exchange, it's a condition. [00:15:16] Speaker 04: Once the conditional nature of copyright falls out, I think we prevail on both for frankly largely the same reasons. [00:15:23] Speaker 03: And then the flip side is also true. [00:15:24] Speaker 03: So for example under 408, [00:15:26] Speaker 03: which you acknowledge is a voluntary exchange of the kind that doesn't affect the taking. [00:15:30] Speaker 03: It also, therefore, doesn't affect any First Amendment. [00:15:32] Speaker 04: Absolutely. [00:15:33] Speaker 04: Under 408, you're free to publish anything you want. [00:15:35] Speaker 04: You just don't get the special government benefit of an enforceable registered copyright, and the government is free to do that without burdening. [00:15:43] Speaker 04: Make sure my colleagues don't have questions for you at this time. [00:15:46] Speaker 03: Thank you. [00:15:47] Speaker 03: Thank you very much. [00:15:50] Speaker 03: Smyron? [00:16:08] Speaker 01: Thank you. [00:16:09] Speaker 01: May it please the court, Laura Myron, for the government. [00:16:12] Speaker 01: The demand requirement has been in the fabric of copyright law since the founding. [00:16:16] Speaker 01: The Supreme Court upheld it in Wheaton. [00:16:18] Speaker 01: And the only question before this court today is whether the changes Congress has made since and make it easier for copyright holders to get and maintain copyright protection have somehow rendered it unconstitutional. [00:16:30] Speaker 01: As a practical matter, for most copyright holders and its owners of the exclusive rights [00:16:36] Speaker 01: The exchange works exactly the same way. [00:16:40] Speaker 01: The government confers the benefit of copyright protection, which allows you to publish your work with the exclusive right to disseminate and distribute copies. [00:16:50] Speaker 01: It allows you to put in the front of the book as [00:16:53] Speaker 01: a notice that says any used copying, publication, whatnot of this work shall be a violation of federal law. [00:17:00] Speaker 01: And it allows you to register your copyright if someone notwithstanding that threat infringes on it and publishes your copies of your work and sue them for injunctive relief. [00:17:11] Speaker 01: In exchange for which, most copyright holders are happy to send the government to copy. [00:17:18] Speaker 01: And I just would have you believe that because copyright protection now adheres at the moment station in the work, which Congress did in order to make it easier for people to secure copyright protection and more difficult for them to inadvertently forfeit it by not correctly publishing the right notice, that somehow copyright protection has become an unalienable right that you can't get rid of if you don't want to comply [00:17:47] Speaker 01: that simply contrary to the way courts have understood copyright for decades, it is well established that you can abandon a copyright. [00:17:56] Speaker 01: It's true that in the cases that have come up, it's a little bit murky because usually the question is presented to the court in the context of someone who's suing to enforce their copyright protection. [00:18:08] Speaker 01: It's significantly easier in the context of 407. [00:18:13] Speaker 03: Can you win on the takings claim if there isn't a robustly available what you're calling abandonment option? [00:18:24] Speaker 01: I think that's somewhat of a counter hypothetical that it is clear that you can abandon a copyright. [00:18:31] Speaker 01: It would be astonishing for this court to say. [00:18:33] Speaker 03: Right, so could you win if that didn't exist? [00:18:34] Speaker 03: And then we'll get into whether it in fact exists. [00:18:36] Speaker 03: But could you win on the takings claim? [00:18:39] Speaker 03: if there wasn't a very readily available way, just to say, if you're a publisher, I actually, I don't care about the copy. [00:18:47] Speaker 01: Well, look, the Supreme Court said in Wheaton that when the legislature is about to vest an exclusive right, not our inventor, they have the power to prescribe the conditions on which the right shall be enjoyed. [00:18:57] Speaker 01: So I don't disagree that it might be a tougher question, but I do think that Wheaton would still conclude that this provision would be constitutional. [00:19:06] Speaker 01: And again, [00:19:08] Speaker 01: For purposes of 407, setting aside whether or not the Copyright Office doesn't comment on whether any overt act that manifests an intent to abandon copyright is sufficient for infringement purposes, but for purposes of 407, any overt act would suffice, including responding to the demand letter saying, [00:19:27] Speaker 01: do not want my copyright protection in this work. [00:19:30] Speaker 01: If counsel for plaintiff were to stand up on rebuttal and say, as a representative of the plaintiff, I am authorized to indicate that the plaintiff is forgoing copyright protection in the demanded work, that would take the plaintiff out of the statutory provision, which applies, and this is from the text of 47, only to the owner of copyright or the exclusive right of publication. [00:19:53] Speaker 01: So if you [00:19:54] Speaker 01: Abandon your copyright. [00:19:56] Speaker 01: You are no longer the owner of copyright, and the requirement in 407 does not apply to you. [00:20:02] Speaker 03: Why is this just this nowhere? [00:20:05] Speaker 03: This has never come up other than in the briefing in this case, as far as I know. [00:20:11] Speaker 01: That's right. [00:20:12] Speaker 01: Because nobody, as far as we can tell, wants to give up the benefits of copyright protection, which are myriad. [00:20:18] Speaker 01: You have the Association of American Publishers, as Miki in this case, telling you, [00:20:23] Speaker 01: that giving up copyright protection would be economically devastating for the publishing industry. [00:20:28] Speaker 01: So it's true that it doesn't come up very often that somebody wants to abandon their copyright and is unable to do so. [00:20:37] Speaker 01: I mean, there are certainly people who publish works with disclaimers that say this work is not subject to copyright protection, copy as you'd like. [00:20:48] Speaker 01: But it is true that it doesn't come up often outside the context of infringement litigation because, by and large, copyright is very beneficial for copyright holders. [00:20:57] Speaker 01: It extends, as I mentioned, a litany of benefits, including the right to exclude from publication of the work, the right to control the dissemination of your work to profit from publication thereof. [00:21:08] Speaker 01: And the Supreme Court has recognized that it's an economic driver of the publishing industry and that it promotes creative expression and promotes [00:21:18] Speaker 01: the things that the Copyright Act is intended to protect, and that it's reasonable to condition the exchange of that very valuable government benefit on the submission of two copies of work. [00:21:30] Speaker 03: And you think that the freely available disavowal abandonment, to the extent that someone could just stand up in court and do it, that's consistent with the statute that says that copyright protection subsists? [00:21:43] Speaker 01: Yes, Your Honor. [00:21:44] Speaker 01: The plaintiff is asking you to read that statute to say that somehow copyright protection, because it adheres a publication of the work, even if you don't put the requisite notice in, that somehow it has become an unalienable property right. [00:21:57] Speaker 01: That's anathema to the way we understand property law. [00:22:02] Speaker 01: Certainly, there isn't any indication that Congress's use of that language was intended to make it so that no one who didn't want copyright protection could abandon it. [00:22:14] Speaker 01: Plaintiff has brought both, I think it's important to note, a facial challenge and an as-applied challenge. [00:22:20] Speaker 01: There's certainly no question that as applied to the plaintiff, if they wanted to abandon this as the government has said this, both in this litigation and elsewhere, if copyright protection no longer [00:22:35] Speaker 01: adheres to the work, if you are no longer the owner of copyright or the exclusive right of publication, that 407 would not apply to you. [00:22:43] Speaker 01: So the statute as applied to plaintiff certainly wouldn't be unconstitutional in that regard because they have not sought to abandon their work and been unable to do so. [00:22:53] Speaker 01: And as a practical matter, as I noted, the vast majority of publishers do opt in, do want to maintain their copyright protection even when faced with a demand letter. [00:23:06] Speaker 02: I'm sorry, your honor. [00:23:08] Speaker 02: You mean they don't. [00:23:11] Speaker 02: But they do. [00:23:13] Speaker 02: They get it. [00:23:14] Speaker 02: Well, I mean, their argument is essentially forced to take. [00:23:18] Speaker 02: And I think what they're saying is the force to taking is really a regulation of a right to publicate the public. [00:23:25] Speaker 02: I'm sorry to publish. [00:23:28] Speaker 01: So if I could, I think to say two things in response. [00:23:30] Speaker 01: The first is [00:23:31] Speaker 01: We usually think of takings as instances in which you have no choice but to comply with the government's demand for your property. [00:23:38] Speaker 01: You might be able to get compensation from the government for turning over the property, but you don't have a choice to say, actually, I don't want the government benefit that you're offering, and I don't want to comply with the demand, and so I choose not to do so. [00:23:55] Speaker 01: The second is that, as I said, [00:24:00] Speaker 01: They're suggesting somehow that the fact that the copyright adheres in the work at the beginning makes it unalienable and that simply can't be rep. [00:24:11] Speaker 01: And as I said before, I suppose even if you were concerned that there was somebody out there who did want to abandon their copyright and was unable to do so, that might give rise to a particular as-applied challenge in which you could consider in that circumstances of that case. [00:24:30] Speaker 01: whether there was a constitutional problem. [00:24:32] Speaker 01: But certainly not the plaintiff you have before you today. [00:24:36] Speaker 01: And the plainly legitimate sweep of the statute is broad enough, as I said, the vast majority of publishers do want the myriad protections of copyright in order to deal with the plaintiff's facial challenge. [00:24:51] Speaker 03: What about the notion that there's a $125 fee for abandonment, at least in some contexts? [00:24:57] Speaker 03: Is that just not [00:24:59] Speaker 03: Is that just not a thing? [00:25:00] Speaker 01: Well, the $125 fee goes with recordation of a document copyright office that you have noted is a way that you could abandon your copyright. [00:25:10] Speaker 01: It's certainly not the only way. [00:25:12] Speaker 01: The government has never said that's the only way. [00:25:14] Speaker 01: And that would be contrary to decades of case law that say any overt act manifesting an intent to, uh, to disclaim a copyright suffices for purposes of abandonment. [00:25:25] Speaker 03: And certainly what is that option? [00:25:27] Speaker 03: Why is that even? [00:25:29] Speaker 03: Why would anybody take the $125 option if you have a free one? [00:25:33] Speaker 01: I suppose, I don't want to guess, but I suppose if you wanted to address both the question of abandonment for purposes of 407, for the copyright office, and also more publicly for purposes of future infringement, copyright, whatnot, that would be available. [00:25:51] Speaker 01: The recordation fee applies to any document that you would record with the Copyright Office. [00:25:56] Speaker 01: So it's not just for cases in which someone wants to disclaim their copyright. [00:26:01] Speaker 01: It's just a mechanism for engaging in an overt act. [00:26:07] Speaker 02: As a neutral listener, that's a very strange answer. [00:26:11] Speaker 02: Why would I ever want to pay $125 if all I want to do is to say, I don't want this thing. [00:26:18] Speaker 02: You say I was born with it and as soon as I publish, I'm stuck. [00:26:23] Speaker 02: I have stuck meaning the least I have to do is give you $125 to be unstuck. [00:26:30] Speaker 01: Certainly, I apologize if I was answering a different part of the question. [00:26:35] Speaker 01: You don't have to do that. [00:26:37] Speaker 01: And as far as we know, people don't do the right. [00:26:40] Speaker 01: uh, recordation as means of abandoning copyright. [00:26:44] Speaker 01: It is an available option. [00:26:45] Speaker 01: If you wanted to, you know, an answer for how to manifest an intent to abandon, you could file something with the copyright office. [00:26:52] Speaker 03: But as I said, it's like going to the, it's like going to the registrar of deeds in a County or property. [00:26:59] Speaker 03: You're saying this is the way you, this is one way you can technically do it in order to get it recorded. [00:27:05] Speaker 03: or time immemorial and someone can go check and they can see that. [00:27:09] Speaker 03: If you just want to disavow it without worrying about whether somebody could check on it, you can do it for free. [00:27:14] Speaker 03: How do you do that? [00:27:16] Speaker 01: You could do a number of things. [00:27:17] Speaker 01: Any over an act manifesting an intent to disclaim copyright, you could respond to the Copyright Office and say, I do not want the copyright in this demanded material. [00:27:28] Speaker 03: Who does it go to? [00:27:29] Speaker 03: Does it have to go to? [00:27:29] Speaker 03: I mean, if you just send an email to your friend saying, I wish I didn't have a copyright, [00:27:36] Speaker 01: The Copyright Office, in order to retract the demand letter, would need to be made aware of it. [00:27:41] Speaker 01: But in response to a demand letter, if you write an email to the Copyright Office and say, I have disavowed my copyright, I have abandoned my copyright, the Copyright Office respects that for purposes of 407. [00:27:53] Speaker 01: And certainly, that's within a reasonable understanding of the statute of the owner or exclusive right of publication in a work in the United States. [00:28:01] Speaker 01: If you are no longer the owner or exclusive holder of exclusive right of publication, [00:28:05] Speaker 01: Then for purposes of 407, you are no longer subject to the requirement. [00:28:10] Speaker 01: Again, PANDIF has never sought to abandon their copyright. [00:28:16] Speaker 03: In fact, they've done everything they can to... Oh yeah, I mean, of course they want to... I mean, I think everybody would want to retain the copyright if they can. [00:28:22] Speaker 01: Yes, Your Honor, and I think that highlights that this is a valuable government benefit that you are receiving in exchange for the copies of the work in the same way [00:28:32] Speaker 01: that, you know, the court recognized in Wheaton. [00:28:35] Speaker 01: I would also point the court to the Supreme Court's decision in Washingtonian publishing, in which the Supreme Court recognized that forfeiture, inadvertent forfeiture of copyright was a different from the punishment and interpreted the timing provisions of the copyright scheme as demand deposit requirement scheme as it existed at the time. [00:29:00] Speaker 01: in such a way to make it easier for copyright holders to satisfy the requirement that time by interpreting promptly. [00:29:08] Speaker 03: If there is this liberally available abandonment option that can just take the form of an email to the Copyright Office, is that irrevocable? [00:29:19] Speaker 01: The Copyright Office, for purposes of 407, the Copyright Office doesn't take a position on [00:29:25] Speaker 01: whether that would be sufficient or effective for infringement litigation. [00:29:29] Speaker 01: It doesn't say that would affect any overt acts manifesting an intent to abandon because that's for courts to decide. [00:29:38] Speaker 01: But certainly for purposes of 407, if you are no longer the owner of copyright or the exclusive right of publication, which you divest yourself of, as courts have said for decades, by an overt act manifesting an intent to abandon your copyright, that [00:29:54] Speaker 01: for purposes of 407, I think it would be done. [00:29:57] Speaker 03: But how would anybody know? [00:29:57] Speaker 03: I mean, suppose if a copyright owner sends the email and then subsequently files an infringement action. [00:30:07] Speaker 03: What's going to happen with that email? [00:30:08] Speaker 01: Well, they're publicly available documents. [00:30:10] Speaker 01: I suppose you could get it through a FOIA request. [00:30:12] Speaker 01: There might be a hard question of whether it's sufficient for purposes of infringement. [00:30:19] Speaker 01: Right. [00:30:19] Speaker 03: I mean, if you pay the $125, obviously it's publicly available. [00:30:22] Speaker 03: If you don't do that, if you just send an email. [00:30:25] Speaker 01: It's a public record. [00:30:27] Speaker 03: Someone would have to file a FOIA request in order to, like the subject of the infringement action would have to file a FOIA request to know whether. [00:30:33] Speaker 01: I think there are two separate questions. [00:30:37] Speaker 01: One is the effectiveness of abandonment or infringement litigation. [00:30:40] Speaker 01: And the second is whether or not you've sufficiently taken yourself out of the exchange provided in 407. [00:30:47] Speaker 01: And certainly for purposes of 407, the email was suffice and that's enough [00:30:52] Speaker 01: could dispose of plaintiffs both as applied and constitutional challenges to that particular statutory provision. [00:30:58] Speaker 01: And certainly, all of this, as I've said several times, is a hypothetical realm because plaintiff has not sought to abandon its copyright. [00:31:07] Speaker 01: And as far as we know, hasn't pointed to anyone else that they think have sought to abandon their copyright and been unsuccessful in doing so. [00:31:14] Speaker 01: I suppose, as I said before, you might have a more difficult as applied challenge in that [00:31:19] Speaker 01: but that case doesn't come up because most people want change. [00:31:25] Speaker 03: Right. [00:31:25] Speaker 03: I'm just saying that if somebody can abandon it for purposes of 407 easily, and then it actually doesn't have the replicability or permanent costs. [00:31:34] Speaker 03: And yeah, you could do that because you could just say, I'm abandoning it for 407 purposes. [00:31:38] Speaker 03: I'm not telling you whether I'm abandoning it for any other purposes, but at least this means that I don't have to send the demand comments. [00:31:43] Speaker 01: Again, the Copyright Office only concerns itself with whether your abandonment is effective for purposes of 407. [00:31:51] Speaker 01: And certainly, you could understand, as a constitutional matter, the language of 407 to mean that you are an owner of copyright or a holder of exclusive right as someone who has not engaged in an overt act to abandon their copyright. [00:32:04] Speaker 01: And I think that's enough to resolve the question before the court today. [00:32:07] Speaker 01: And there may be more difficult questions if that person were to turn around [00:32:12] Speaker 01: try to bring infringement litigation. [00:32:15] Speaker 01: But again, the plaintiff hasn't done that. [00:32:17] Speaker 01: In fact, the plaintiff has done everything in terms of structuring themselves as the exclusive right, as hold of the exclusive right of publication, of publishing the notice that threatens that any use of copying of this work is a violation of federal law, and said vastly refusing to abandon its copyright. [00:32:36] Speaker 03: Can I ask you this question? [00:32:37] Speaker 03: So just shifting to the First Amendment for a second, so suppose that [00:32:42] Speaker 03: Just hypothetically, I know you'll resist this premise, but suppose that we don't give you the benefit of the liberal abandonment option that you're resting your takings on. [00:32:52] Speaker 03: And then it doesn't automatically transfer over to the First Amendment either, because that's also a principle force of your argument on the First Amendment is, look, there's no burden here because it's just voluntary to begin with. [00:33:04] Speaker 03: It's just like 408. [00:33:05] Speaker 03: It's the problem. [00:33:07] Speaker 03: And I think the opposing side agrees that if it were like 408, there wouldn't be a First Amendment problem either. [00:33:12] Speaker 03: we're not joining you on that. [00:33:14] Speaker 03: Then what's the argument if there's not the liberal abandonment option available, what's the government's argument as to why a, a burden imposed upon publication is valid, even putting aside content, just suppose it's content neutral. [00:33:33] Speaker 03: It's just anybody. [00:33:33] Speaker 03: It applies to any content whatsoever, but it's still a burden imposed on publication. [00:33:39] Speaker 03: And it has to be justified by the government, even though the government could pay for the copies, even though the government is destroying, the Library of Congress is destroying, for totally understandable reasons, a bunch of books. [00:33:53] Speaker 03: It just seems like there's a benefit burden calculus that is difficult for the government based on what's in the record of this case. [00:34:00] Speaker 03: If you reject the threshold submission that you have, which is this is not a burden to begin with. [00:34:06] Speaker 01: The requirement in 4.7 applies to the owner of copyright or [00:34:10] Speaker 01: And the requirement that you deposit copies would still be a condition on which the right to copyright shall be enjoyed. [00:34:20] Speaker 01: Congress doesn't need to provide publishers with copyright. [00:34:25] Speaker 01: There's no background principle which you are entitled to publish with the protection of copyright. [00:34:32] Speaker 01: In fact, the Supreme Court in Wheaton noted that copyright is entirely a creation of statute. [00:34:40] Speaker 01: the demand requirement would still, the deposit requirement would still run with the benefit of copyright. [00:34:48] Speaker 03: But it only triggers on publication. [00:34:53] Speaker 03: So it doesn't trigger on copyright, because copyright already exists no matter what. [00:34:57] Speaker 03: It only triggers on publication. [00:34:59] Speaker 03: And it just seems to me that it's a textbook First Amendment, at least a serious textbook First Amendment question, if there's a burden imposed on a party by virtue of publication. [00:35:10] Speaker 01: Well, look at that. [00:35:13] Speaker 01: I think some of what you're getting at is some of the tension between the copyright, the exclusive right of publication, the copyright scheme, and the First Amendment. [00:35:25] Speaker 01: And the courts have long recognized that copyright, which limits the publication of certain things and provides exclusive rights, is actually good for the First Amendment. [00:35:34] Speaker 01: They work in concert in order to, as I said before, bolster an economic market for publishing. [00:35:41] Speaker 01: So I don't think it's fair to read this as just a burden on publication. [00:35:49] Speaker 01: And certainly, that's because anybody could publish something that says, even if you set aside the question of whether one's already received copyrighted, whether you can abandon it, [00:36:03] Speaker 01: I don't think there's any dispute that if you publish something that says, this book is for public use, I am not claiming copyright, that that would not be subject to copyright protection if you do that at the moment. [00:36:15] Speaker 01: And if you do that, you can publish anything you want, say anything you want without running afoul, without encountering the burdens of 407 and then, of course, without running afoul of the First Amendment. [00:36:30] Speaker 01: And I would also note that [00:36:32] Speaker 01: India was not pointed to any speech or First Amendment activity that has been chilled by virtue of this requirement. [00:36:40] Speaker 01: They can't find anybody, as far as we know. [00:36:42] Speaker 01: The Association of American Publishers has not come in and said people are being chilled from publishing by virtue of these provisions of the Copyright Act. [00:36:56] Speaker 01: That's not the way copyright law operates. [00:36:58] Speaker 01: And it wouldn't be a First Amendment problem. [00:37:02] Speaker 01: because it's a burden on, as I said, the provision or associated with the provision. [00:37:12] Speaker 05: Make sure my colleagues don't have additional questions for you. [00:37:14] Speaker 01: Thank you. [00:37:15] Speaker 01: If you would like, I'd be happy to address the court question in the supplemental order about per se versus electronic takings. [00:37:25] Speaker 03: On per se versus regulatory takings, if we have questions about that, I don't. [00:37:29] Speaker 03: Thank you. [00:37:30] Speaker 03: Thank you, counsel. [00:37:33] Speaker 03: Mr McNamara will give you three minutes for rebuttal. [00:37:36] Speaker 04: Thank you, Your Honor. [00:37:37] Speaker 04: Just two very quick points. [00:37:39] Speaker 04: First, I actually agree with my friend from the government that most publishers do want the benefits of copyright. [00:37:45] Speaker 04: And we know that because most publishers choose to register their copyrights under Section 408 and trade their books under 408 instead of depositing their books in exchange for nothing under 407. [00:37:55] Speaker 04: This is at Joint Appendix 118, but the Copyright Office gets more than four times as many books through 408 as it does under 407 because those are the people [00:38:05] Speaker 04: want the benefits of an enforceable copyright. [00:38:07] Speaker 04: In such a word on abandonment, if abandoning copyright were easy, Your Honor, then the government would have been able to consistently describe the abandonment process throughout this litigation. [00:38:18] Speaker 04: It hasn't been able to do so. [00:38:19] Speaker 04: Its position below, the position adopted by the district court, was that we had to pay $125 to record our abandonment. [00:38:26] Speaker 04: There is nothing at all in the record to suggest the Copyright Office treats abandonment [00:38:31] Speaker 04: the way that we were discussing this morning, just absolutely nothing. [00:38:34] Speaker 02: Well, let's assume they do. [00:38:37] Speaker 04: Even so, Your Honor, if they did, I think that still creates a massive First Amendment hurt. [00:38:42] Speaker 02: My friend from the government... Well, let's start with the takings first. [00:38:45] Speaker 02: I'm not sure I understand the taking part. [00:38:47] Speaker 02: Assuming abandonment is straightforward. [00:38:52] Speaker 02: Send an email, if they send [00:38:55] Speaker 02: I don't want it, et cetera. [00:38:57] Speaker 02: It's straightforward. [00:38:58] Speaker 02: It's as straightforward as you can imagine. [00:39:00] Speaker 02: What's the takings, Clint? [00:39:01] Speaker 04: The demand itself is still a taking. [00:39:03] Speaker 04: And the question is just how much effort we have to put forth to escape the taking. [00:39:07] Speaker 04: In Horn, they could have stopped selling raisins. [00:39:09] Speaker 04: Here, perhaps there's some amorphous process we could go through to abandon the copyright. [00:39:14] Speaker 04: But crucially, we can't abandon these copyrights because we don't own them. [00:39:18] Speaker 04: As I said before, a lot of the copyrights here are automatically attached to an assistant professor of English at a university somewhere in the country. [00:39:26] Speaker 04: to abandon the copyright, Balancourt would have to go to that professor and urge him to undertake whatever process the government has now decided counts as abandonment, file that with the government, and thereby remove the automatic copyright from the foreword of this book. [00:39:43] Speaker 04: That is a burden on Balancourt's First Amendment publishing activity. [00:39:48] Speaker 04: And I want to be clear on the two. [00:39:50] Speaker 02: We're going to the First Amendment. [00:39:51] Speaker 02: And I'm trying to get your position. [00:39:53] Speaker 02: If abandonment's not an issue, I don't see why taking [00:39:56] Speaker 04: I also think it's a burden to escape the taking, because in any takings case, there's something that you can do to escape the taking. [00:40:03] Speaker 04: Here, it's always been clear we could avoid giving our property to the government by paying a fine. [00:40:09] Speaker 04: Our position is that forcing us to pay a fine is too much of a burden. [00:40:13] Speaker 04: Or you can now publish. [00:40:14] Speaker 04: Or we could not publish. [00:40:16] Speaker 04: And we think forcing us to forego the right to publish books is too much of a burden. [00:40:19] Speaker 04: So too, forcing us to track down and enter into formal agreements with anyone who has ever created any written word or a valid workbook imposes a burden. [00:40:29] Speaker 04: And so the demand for physical property is still a taking and it still functions as a burden on our fundamental right to publish books containing new ideas. [00:40:36] Speaker 02: Suppose, I mean, let's take the hypothetical. [00:40:38] Speaker 02: Let's assume I'm not going to get involved. [00:40:43] Speaker 02: published, and if I get a request to pay a fine or whatever from the government, at that moment, I will write a note back to them saying, I don't want this. [00:40:55] Speaker 02: It's that easy. [00:40:57] Speaker 02: You don't have to do a single thing other than wait to see whether the government dares to say you owe them something. [00:41:04] Speaker 02: And at that moment, you say, I don't owe you anything because I don't want this copyright. [00:41:09] Speaker 02: I didn't ask for it. [00:41:11] Speaker 02: You say it was automatically there. [00:41:13] Speaker 02: I don't want it. [00:41:14] Speaker 02: And I'm not paying you a fine. [00:41:15] Speaker 04: I still think there are two problems, Your Honor. [00:41:17] Speaker 04: One, that's contrary to statutory text that says our deposit obligations arise three months after publication. [00:41:24] Speaker 04: There's nothing to suggest we can retroactively eliminate them years later when we get that record. [00:41:28] Speaker 04: That's not the system Congress set up in the statutory text. [00:41:32] Speaker 04: And two, we cannot disavow things we don't know. [00:41:35] Speaker 04: What that system would say is that it's no longer legal to have these informal arrangements with people [00:41:40] Speaker 04: to write illuminating footnotes or interesting forewords. [00:41:44] Speaker 04: And yet I think we have a fundamental right to have people write interesting forewords and illuminating footnotes without engaging in regulatory compliance. [00:41:52] Speaker 04: And I think the only dispute we have with the government here and what's shifting in the government's shifting litigation positions is the scope of that burden. [00:42:00] Speaker 04: how much regulatory compliance we have to do. [00:42:03] Speaker 04: But what we're doing is publishing books. [00:42:05] Speaker 04: If all we're doing is just exercising a right that's existed since Gutenberg, the government can't impose it. [00:42:12] Speaker 04: The only book they have is that we said something new, that we said it in public. [00:42:16] Speaker 03: So can I, I'm trying to construct the hypothetical that avoids the complication you raise about somebody else's copyright. [00:42:24] Speaker 03: I take that point. [00:42:25] Speaker 03: So I understand the complication, but if we can construct the hypothetical where the, [00:42:30] Speaker 03: The demand requirement only kicks in where you're asserting your own copyright. [00:42:38] Speaker 03: And if that's really abandonable, then is there a problem? [00:42:43] Speaker 03: Is there a takings problem? [00:42:47] Speaker 04: I think in that hypothetical, I would say there is still a takings problem because you have to do something to abandon the copyright. [00:42:54] Speaker 04: I guess if we embrace even if it's just sending an email, even if it's just sending an email, if I forget to send that email, I'm subject to fines. [00:43:03] Speaker 04: That's certainly a much smaller. [00:43:04] Speaker 02: But then when you get the follow up notice saying you've got to respond and then you say, OK, I meant to tell you this last week and telling you now. [00:43:12] Speaker 04: So and I so I think the strongest version of the hypothetical [00:43:16] Speaker 04: is an email that says you have to deposit these books. [00:43:20] Speaker 04: And if you don't deposit these books, we will assume you have abandoned your copyright. [00:43:23] Speaker 04: That imposes no obligations on us. [00:43:25] Speaker 04: That's the easiest way to escape the taking. [00:43:27] Speaker 04: And I think that actually wouldn't work. [00:43:29] Speaker 04: It doesn't actually demand the book. [00:43:31] Speaker 04: We can freely escape it. [00:43:33] Speaker 04: The only problem is it violates section 407 because that... Right, put that aside. [00:43:38] Speaker 04: I mean, let's just assume the government has an interpretive ring on that side. [00:43:40] Speaker 04: I think you're right, Your Honor. [00:43:41] Speaker 04: That wouldn't be a taking because that's not actually a demand for books on pain of either punishment or some other burden we'd have. [00:43:48] Speaker 03: And then if you just flip it a little bit so that it's not... They don't put the bonus... They don't assume that you're abandoning, but they just require you to do something trivial to abandon, which is... [00:43:59] Speaker 03: just respond. [00:44:00] Speaker 03: Like you get those texts that say send them one if you want to keep your reservation. [00:44:04] Speaker 04: That kind of thing. [00:44:06] Speaker 04: I think at a certain point, Your Honor, there probably is a burden the court could say was de minimis. [00:44:10] Speaker 04: I can't often think of a takings case where the government said you can escape this taking by undertaking a de minimis burden. [00:44:17] Speaker 04: I would anticipate the Supreme Court would say that the question presented itself. [00:44:21] Speaker 04: I just don't think we have a case of a de minimis burden. [00:44:23] Speaker 03: And then query what the compensation would be if really there's what the just compensation would be if there's [00:44:28] Speaker 03: really nothing to the burden. [00:44:32] Speaker 03: But I think your main burden point is that there's copyright that's not yours to relinquish. [00:44:38] Speaker 03: Yes, Your Honor. [00:44:39] Speaker 04: We have to have some formal arrangement with everyone who writes anything for a Ballin Court book, which would be retroactively, it would be enormously burdensome tracking these people down. [00:44:47] Speaker 04: And on a forward-looking matter, it would require Ballin Court, which is a two-man operation to essentially have in-house counsel to [00:44:55] Speaker 04: craft agreements to make sure every author knows they are abandoning their copyright by publishing. [00:45:03] Speaker 03: If my colleagues have additional questions for you. [00:45:06] Speaker 03: Thank you, counsel. [00:45:07] Speaker 03: Thank you to both counsel. [00:45:08] Speaker 03: We'll take this case under submission.