Copyright’s Constitutional Crisis

In May 2025 the Trump Administration summarily fired Librarian of Congress Carla Hayden and Register of Copyrights Shira Perlmutter and announced that Deputy Attorney General Todd Blanche would become the Acting Librarian and Associate Deputy Attorney General Paul Perkins the Acting Register.

The Library and the Copyright Office did not contest Trump’s ability to fire the Librarian, but they successfully blocked Blanche and Perkins from assuming the acting roles. Perlmutter has sought a declaratory judgment that the Administration lacks authority to fire her as the Register and asserts that she is still the Register. The D.C. Circuit Court of Appeals ruled in Perlmutter’s favor, but the Supreme Court will review that ruling. (Blake Reid explores the issues raised in Blanche v. Perlmutter in his Separation of Copyright Powers article, which is also slated for publication in the Seattle U.L. Rev. Online).

Street and Runyon are concerned primarily with preserving the independence of the Library of Congress from executive branch interference. They explain very well the important role the Library has played not only as a substantial resource for members of Congress, but also as the country’s national library, with more than 178 million items in its collection. The Library adds more than 10,000 items to its collection every working day, largely by virtue of the mandatory deposit copies of works of authorship it obtains from the Copyright Office when copyright owners provide deposit copies when they register their claims of copyright.

The Library and the Office have long been regarded as units of the Congressional branch of the U.S. government (the Office is a subunit of the Library), even though both the Librarian and the Register engage in some executive functions. Under the unitary executive theory, Trump claims that he is entitled to fire any government official who performs executive functions. Trump also claims that he has authority to appoint Blanche and Perkins under the Federal Vacancies Reform Act, which allows the President to appoint acting officials to executive agency positions for a temporary period. Because the Register performs some executive functions and the Librarian supervises the Register (an executive function), the Trump Administration argues the Library and Office are executive agencies, and hence, the acting appointments of Blanche and Perkins are sound.

What, you might ask, does this have to do with copyright? Two issues stand out: First and foremost, Street and Runyon argue that the Copyright Office must be severed from the Library so that the Library’s status within the Congressional branch, independent of the executive branch, is made more secure. Second, they argue that the mandatory deposit rules must be retained and strengthened, so that the Library’s broad collection of literature and cultural heritage works can continue to grow apace, although it is unclear how the deposits now made to the Office will get to the Library’s collection.

Where, though, is the Copyright Office supposed to go? Street and Runyon suggest that the Office could become a subunit of the Patent and Trademark Office (PTO), which has been proposed in the past, or an independent agency. Although Street and Runyon do not seem to care about the substantive copyright issues raised by their proposal, many of us in the copyright field may have views on this subject. I, for one, would just as soon that the Copyright Office remain as a subunit of the Library consistent with copyright’s constitutional purpose of promoting the progress of knowledge and culture. But is this realistically an option in the current era? (Reid’s article also discusses the placement of the Office if removed from the Library).

Street and Runyon also discuss at length the history and significance of the mandatory deposit rules in 17 U.S.C. §§407 and 408. Mandatory deposit rules have been part of U.S. copyright law since 1790. Section 407 requires that copyright owners deposit two copies of their works with the Library within three months of publication. Yet, when the Copyright Office tried to enforce that requirement as to books whose copyright owner made them available only in digital form, the publisher challenged the Office’s insistence on physical copy deposits as a taking of private property in violation of the Fifth Amendment to the Constitution and won in Valancourt Books, LLC v. Garland, 82 F.4th 1222 (D.C. Cir. 2023). While the D.C. Circuit’s decision was limited to the facts of Valancourt, Street and Runyon worry that publishers may be emboldened to challenge mandatory deposit rules more generally.

The Valancourt decision is also of concern because in the digital age, a great many copyrighted works are now available only in digital formats. So, unless the mandatory deposit rules are modified so that the Library and Office can accommodate digital copies, the Library’s collection will cease to include the broadest array of knowledge. Street and Runyon propose ways to shore up the mandatory deposit rules (with details I will not share here).

Library at a Crossroads is an excellent and passionately argued article that richly deserves to be read. It considers some important issues for the future of knowledge that most of us copyright professionals have long ignored.