BiblioBytes Affidavit in ACLU, et al v. Reno
Affidavit in ACLU, et al v. Reno
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I, Glenn Hauman, of Hoboken, New Jersey, do hereby depose and swear:
1. I am the president and primary stockholder of BiblioFile Books On Computer, doing business as BiblioBytes, a company that was founded in January 1993 for the purpose of selling electronic versions of print books over the Internet's World Wide Web ("the web"). I submit this affidavit on behalf of BiblioBytes.
2. BiblioBytes is incorporated in New Jersey and has its principal place of business in Hoboken, New Jersey.
3. BiblioBytes contracts with publishers and writers to obtain the rights to publish the electronic version of books that have previously been published in print form. BiblioBytes currently has the rights to over one thousand titles. BiblioBytes also publishes some texts that have not been previously published in print form and that are available for purchase only online. The books available through BiblioBytes cover a variety of genres including mystery, science fiction, romance, fantasy, erotica, and classics.
4. BiblioBytes' web page provides information about the company and a list of available book titles, arranged by genre, that can be purchased. An interested buyer can place an order by e-mailing an order form to BiblioBytes. The order form, which requires name, address, credit card number, and order information, can be filled out directly on the BiblioBytes web site. Once BiblioBytes receives the order by e-mail, it sends the electronic book to the buyer via e-mail and charges the credit card.
5. Some of the books sold by BiblioBytes contain material that is sexually explicit or contains vulgar language. For example, BiblioBytes sells an electronic version of Harlan Ellison's collection of short stories, "Love Ain't Nothing But Sex Misspelled." Harlan Ellison is an accomplished short story writer who has been called "a twentieth century Lewis Carroll." One of Harlan Ellison's works was chosen for The Best American Short Stories of 1993, and he has been awarded several literary awards including the World Fantasy Award for Life Achievement. Some of the short stories contained in the "Love Ain't" collection include sexually explicit and vulgar language. "Neither Your Jenny Nor Mine," originally published in print form in 1963, is a graphic account of a young woman who gets pregnant out of wedlock and is forced to go to Tijuana, Mexico to have an illegal abortion. "Punky and The Yale Men," originally published in print form in 1966, is the story of a famous but jaded writer looking for meaningful experiences in New York City. The protagonist encounters prostitutes, hustlers, and gamblers. As another example, BiblioBytes also sells a book (available only online) by John Anderson entitled "Panaflex X," which is a fictional account of a woman trying to get out of the pornography industry.
6. Just as minors are important consumers of books available in traditional bookstores, BiblioBytes considers minors to be an important market for electronic books. Many teenagers are very knowledgeable about online communications and may be more likely to purchase electronic books than their parents. Minors are constitutionally entitled to buy, in print form, all of the books currently sold in electronic form through BiblioBytes.
7. BiblioBytes understands that one possible course of action that could protect BiblioBytes from possible criminal prosecution or sanctions under the statute would be to delete all materials that might be considered "indecent" or "patently offensive." BiblioBytes owns the rights to reproduce in electronic form exact copies of books that already exist in print form. These "rights" do not include the right to alter the content of the books in any way. Therefore, if the statute required BiblioBytes to screen out material that is "indecent" or "patently offensive," BiblioBytes would have to eliminate the entire book from its collection. This would result in an obvious economic hardship on BiblioBytes. In addition, because BiblioBytes believes that "indecent" and "patently offensive" material is protected by the Constitution even for minors, it will not delete books that contain such materials from its online communications in order to avoid criminal liability.
8. Even if BiblioBytes wanted to delete books that contained "indecent" or "patently offensive" material from its list of titles, BiblioBytes does not know how to determine which material might be considered indecent or patently offensive.
9. BiblioBytes understands that another possible course of action that could protect BiblioBytes from possible criminal prosecution or sanctions under the statute would be to forbid minors from purchasing its books. Because BiblioBytes believes that books containing "indecent" or "patently offensive" material are protected by the Constitution even for minors, it will not purposefully refuse access to minors in order to avoid criminal liability. BiblioBytes currently requires a credit card for purchase of its electronic books, which probably screens out most but not all minors. BiblioBytes is therefore unsure whether its practice of requiring a credit card eliminates the risk of liability under the statute. Thus, even if BiblioBytes chose to exclude minors to avoid criminal liability, it currently knows of no verification procedure for determining with certainty the age of the persons who order books through the BiblioBytes web site.
10. BiblioBytes fears prosecution or other enforcement under the statute for communicating or sending "indecent" or "patently offensive" material to persons under age 18.
Subscribed and sworn before me on this ___ day of February, 1996.