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Hermes Sahaf Bookstore In Turkey Defeats Luxury Retailer’s Trademark Lawsuit

from the thank-gods dept

Earlier this year, I brought to you an absolute bonkers trademark lawsuit filed in Turkey by Hermes, the luxury brand, against Hermes Sahaf, an itty bitty bookstore. There was never a reason to file this lawsuit, but it’s an especially bad PR look for a massive company like Hermes to be going after an independent bookstore. In its suit, Hermes claimed it was doing so because it too is a publisher, as it relates to some luxury accessories magazine it puts out. But that still doesn’t get you into the same marketplace as a bookstore.

Much to my surprise, the Turkish intellectual property office sided with Hermes independent of the lawsuit, denying Hermes Sahaf’s attempt to trademark its own name. That office said that only Hermes could use the name of the greek god, paying no attention to the difference in market designators.

Now, fortunately, the court hearing the lawsuit has ruled in the opposite, finding for Hermes Sahaf and allowing the store to keep its name.

An Ankara court ruling partially voided a decision by TürkPatent, Türkiye’s intellectual property authority, that prevented any brand other than Hermes Paris from using the name Hermes.

“Hermes is a god in Greek mythology who belongs to the cultural heritage of humanity. He should not be owned by a company. This is an important decision in that sense,” the bookseller Ümit Nar, whose shop is in the western city of İzmir, told AFP.

The source material here is a bit hard to navigate, given that I am by no means an expert in Turkish trademark law. The court has apparently issued this ruling without making its reasoning public. Still, Nar’s free to keep his shop’s name. What is unclear is whether he is now clear to pursue the trademark for his shop that he wanted in the first place.

It may be that the appeal he plans to file on the ruling is designed to allow him to do exactly that.

The book dealer will still appeal the decision, as “the court has not ruled on the risk of confusion between the two brands in terms of audience and general impression,” the lawyer said.

“I hope that this verdict will help set a precedent for cultural heritage and multinational firms,” Nar said.

Regardless of the motivation for the appeal, that last goal would certainly be a good one. Or, at the very least, maybe these multinational firms could simply not feel the need to bully a small bookshop.

Filed Under: books, likelihood of confusion, luxury goods, trademark, turkey
Companies: hermes, hermes sahaf

Body Cam Shows Sheriff Obliging A Bigot To Search A Library For ‘Obscene’ Books He’s Too Stupid To Understand

from the free-speech-is-banning-books? dept

Courtesy of Solar Opposites (imho the funniest show on streaming TV), here’s what happens when you teach a cop how to read:

To quote the relevant part for those who can’t view the video or would just prefer me to put my cop-hating in plain text, here it is. Yumyulack, an alien, is trying to achieve fulfillment by helping people. His sci-fi ray teaches a baby to read. He zaps the person pushing the stroller, who protests she already knows how to read because she’s a famous novelist.

He then zaps her hat and her car, resulting in her calling the cops because the alien is “educating her things.” He then zaps a cop, who says:

Oh God! I can read! What if I gain empathy? What if I learn things that force me to reevaluate my hardline conservative opinions?

And there you have it. This is all extremely relevant.

First, there’s the “hardline conservative opinions.” Whether or not Sheriff Robert Norris of Kootenai County, Idaho, maintains these opinions is… lol… I was going to say “up for debate.” But they’re not. He’s just as shitty as the person who summoned his assistance.

That person, as Jason Koebler reports for independent outlet 404 Media, is Marianna Cochran, the founder of CleanBooks4Kids. She’s one of those people. You know the ones I mean. The people advocating for the silencing of voices related to minorities and anyone not explicitly heterosexual. Ignoring the hundreds of explicit romance novels available to any pre-teen with a library card, Cochran has made claims (without facts in evidence) that libraries and librarians are pushing smut to kids and are staffed by groomers.

Because both she and Sheriff Robert Norris agree libraries are just dens of underage sexual iniquity, Sheriff Norris (who is supposed to serve everyone in the county, not just one particularly vocal idiot) decided to flip on his body cam and go hunting for the supposedly immediately recognizable filth that has Cochran so upset she formed a group catering to the most small-minded people in her community.

Here’s the full video, which was obtained by Adam Steinbaugh of FIRE:

Cops have never been great at understanding the law. This often works out for them. They’re even worse when it comes to understanding the legal boundaries of free speech, even when they fervently believe they’ll know obscenity “when they see it.”

This would be surreal enough if the recording had originated in a foreign country. But this happened here, the nation where free speech protections have been part of this country since its origination.

Here’s Koebler, describing some of the hideous/hilarious incidents captured by the sheriff’s body cam. It begins with one bigot (Marianna Cochran) telling another bigot (Sheriff Norris) the things she’s supposedly observed in this very library.

Cochran tells him that there is a “whole series” of books by the same author which feature “gay orgies, the whole deal. Prostitution.” Identical is a 2010 novel by Ellen Hopkins about twin sisters, and deals with themes of domestic sexual abuse.

Cochran also claimed a poster in the library recently featured books containing a “preponderance of demonology and witchcraft.” She does not, however, share any photos of said poster or contribute any other evidence to back this claim.

Walking through the library with Cochran, Sheriff Norris does his best to obtain evidence of obscene material within immediate reach of minors. This does not go well.

They walk into the library, and for the next 45 minutes search for “obscene” books in the Young Adult section while Norris’s camera is rolling in one of the most bizarre police body camera videos I’ve ever seen. During the visit, Norris is annoyed to learn that Identical isn’t actually at the library. He also learns what a “graphic novel” is, and spends most of his time flipping silently through graphic novels.

The frustration over this pair’s inability to find a copy of the book that has them so hot and bothered soon bubbles over. Cochran tells Sheriff Norris several things that are true about nearly every library in America, not just the one where two stupid people are misinterpreting obscenity statutes to engage in an act that most people would only assume occurs in countries headed by autocrats: the literal policing of the printed word.

Cochran points out that the library (like thousands of others) operates a bookmobile, allows patrons to check out their own books using self-service stations, and provides inter-library loan services, which allow readers to request books not currently on the shelves at their local library. To Cochran, this is evidence the library is aiding and abetting in the poisoning of children’s minds. To anyone else with half a brain (Sheriff Norris not included), this is just how libraries operate to best serve their clientele: the reading public.

Refusing to let this initial failure slow them down, Cochran performs an internet search and presents the search results as evidence of… well, who knows what the fuck… to the sheriff.

After the disappointment over Identical, Norris and Cochran begin looking for other books they find distasteful. She shows him a series of printouts from BookLooks.org, which catalogues the number of times words like “Ass, Cunt, Fag, Fuck, Goddamn, Piss, Prick, and Shit” are written in various books and includes excerpts listed by page number of content that it believes could be “of an ADULT nature.”

Bringing the sheriff a couple of other graphic novels (a term the sheriff isn’t familiar with), Cochran continues to insist the law is being broken, even as she admits the graphic novels she’s showing him aren’t actually explicit.

She brings him another graphic novel (Fence, Vol. 2, about fencing). “There’s nothing blatant in here. Nothing blatantly sexual. I think there’s just no innuendo at all. These guys on the team, this is an intentionally very androgynous character. All the girls falling for him in the beginning of the book, but it’s made clear later in the book that, you know, he prefers boys. Is that necessary? Illegal? No. Unnecessary? Yes,” she says.

The sheriff continues to page through a handful of graphic novels. Finding nothing worth seizing and/or arresting anyone over, the sheriff says to his body cam that maybe the library could put “PVC pipe, a drape, or something” over an area housing the books even the sheriff can’t credibly claim might be inappropriate for minors.

This quasi-raid occurred last year. Sheriff Norris — along with his bigoted compatriot — have already made a bit of hateful hay from this complete failure to discover supposedly illicit material at this library.

Norris’s antics with the library went viral last year, when he bragged at that meeting about the body camera stunt. At that meeting, he holds up copies of the books Identical and Deal With It! A Whole New Approach to Your Body, Brain, and Life as a gURL. “I took a body cam and went to a library. I went to the teen section of the library and I saw children, kids that were not of teenage years, this is the teen section of the Hayden Library, I wanted to see it for myself,” he says. He then holds up Identical and Deal With It, and has a community member hand the books to a teenager. “Now that,” he says, “is against the law … I have read this book and it’s disgusting for it to be for children ages 13 through 19” (18 and 19 year olds are adults, obviously).

The real facts are that two of the books referenced had not been checked out from the library he searched. One was checked out from another library (not the one he searched) and the other had been reported as stolen. The other books were seized by the sheriff, who originally refused to return them. When he finally decided to return them, he had removed the library barcodes and UPCs, making it impossible for the library to loan them to anyone until they were re-labeled or replaced.

This is not what we, as Americans, expect law enforcement officers (and especially, law enforcement officials) to be doing with our tax dollars. This recording is the honest portrayal of what happens when two people filled with irrational hate combine forces. Marianna Cochran is an idiot and irritant. But without the willing assistance of Sheriff Norris, she’s nothing more than a particularly pesky insect. But now that she has Sheriff Norris in her corner, she’s nothing more than a censor who has the luxury of pretending she’s speaking for the people while turning their own public servants against them.

Filed Under: body cam, book banning, books, idaho, kootenai county, mariana cohcran, robert norris

The Sky Is Rising 2024 Edition: Rather Than Destroying Culture, The Internet Has Saved The Content Industries

from the the-sky-is-rising dept

Read the latest edition of The Sky Is Rising at The Copia Institute »

Twelve years ago, we released our very first research report, the Sky is Rising. Back then, in 2012, the commonly accepted wisdom was that the internet was killing various creative industries, from the music industry (especially!) to movies, TV, and books among other things. This didn’t seem to match with the world that we were seeing, so we dug into all the data (and, wherever possible, sought to use the industry’s own numbers) and found that while some industries were struggling to adapt to the internet, the data actually showed that the sky was rising, not falling.

We found that more content than ever before was being created (though not all through traditional channels). We found that people were engaging with more content than ever before. And, contrary to the narrative spun by some legacy industries, we saw that people were more than willing to spend money on content. They were just focused on having it be convenient and accessible where they wanted it to be.

Over the years with support from CCIA, we released additional editions of the Sky is Rising report via our think tank The Copia Institute, but our last one was five years ago in 2019, before the COVID pandemic. Last year we set out to revisit not just the data, but the structure of the whole report. The process took almost the entire year, but we’re excited to release our latest edition of The Sky is Rising.

In the original report, a decade ago, we were focused just on countering the misleading narrative that the internet was killing the creative industries. Not only is that myth dead and buried, the latest report suggests quite the opposite: that the internet has saved those industries and basically become the lifeblood of all creative industries.

Throughout the report what we saw time and time again is that the growth in these industries is happening because of the internet. It’s making it easier than ever to create, to share, to distribute, to promote, to sell, and to engage. Creativity is thriving, and much of it is entirely due to the internet.

Indeed, we saw this most directly in industries most heavily impacted by COVID. One of our concerns going into this report was looking at how the pandemic impacted things, and the data certainly confirmed that some industries had huge problems: namely live music and movie theaters. But, in both cases, the amazing thing that the data showed was how the internet rushed in to fill the void, providing new ways to experience content that traditionally had required performance spaces, helping to tide things over during the periods of lockdowns, and then easing the rebound after lockdowns loosened.

The internet helped spare those industries, and helped billions of people around the globe continue to engage with and experience wonderful art, even in the midst of a global pandemic.

Over and over again we saw examples of the internet helping these industries out. The most stark and clear example is the recording industry (which, as a reminder, is just one segment of the music industry). This was always Exhibit A for an industry supposedly being destroyed by the internet. Except, just as we saw, with the ability to create more music, distribute it, and enable more convenient access to everyone, the business models have sorted themselves out, and now the internet is responsible for the industry reaching new highs.

On the video side of things, while COVID took a huge bite out of the box office, when lumped together with digital streaming, the larger market for video basically has continued to grow.

For what it’s worth, that chart highlights a change we made with this year’s report. Ever since the original edition, we had been combining movies and TV into a single “video” section. This turned out to be prescient as the line between movies and TV started to blur quite a bit during the streaming era. As we were putting together this year’s report, we started to lean in on this thinking, and we retitled the sections and expanded a few. In the old reports, we covered Music, Video, Books, and Video Games. This year, we have switched it to the activity involved: Listening, Watching, Reading, and Playing. This allowed us to expand some of these categories, and slot in some newer things like TikTok videos, digital magazines, and podcasts.

Also, we’ve added a “mini-chapter’ on AI. We’re way too early into the generative AI world to have that much data on what it means for creativity and the creative industries. However, from what we’re seeing, it feels like “generative AI” is taking on the misleading role that “the internet” had in the early 2000s, of a new technology that some are predicting will destroy certain industries. And, while it’s early, what we’re seeing is (again) quite the opposite. AI has all the makings of an incredible tool to help people be even more creative and to create more wonderful works that people will enjoy.

There’s a lot more in the full report, which weighs in at 80 pages, chock full of details, charts, and graphs. But the key takeaway from it should be that the story from the early 2000s about how the internet was going to kill the creative industries and creators was not only wrong, it had everything backwards. The internet has been a huge boost to the creative industries, opening up new ways for people to create, to distribute, and to engage with content of all kinds.

The sky is truly rising, not falling. And, we should keep that in mind as we live through yet another apparent moral panic about the next “threat” to these industries.

Read the latest edition of The Sky Is Rising at The Copia Institute »

Filed Under: books, copyright, creativity, culture, internet, movies, music, reading, sky is rising, tv, video games

Sending Cops To Search Classrooms For Controversial Books Is Just Something We Do Now, I Guess

from the bigots-sure-love-them-some-fascism dept

Thanks to politicians (including a former president) being overly willing to scratch the bigoted itch of a voting bloc that appears to prefer the brutal caress of fascism to the freedoms of a democratic republic, far too many state and local legislators are crafting and enacting laws designed to relegate a whole lot of the nation to the lower echelons of society.

These are people who believe they’re Norman Rockwell characters residing in disturbingly lit Thomas Kinkade houses. They believe they have the moral high ground, if only because they say weird stuff about God while going about government business. They claim they’re worried about the children. But they don’t actually care about the children. They only care whether this supposed concern can be leveraged to demean and destroy people they don’t like.

The same people who claimed to care so much about children that they worked tirelessly to enact abortion bans are the same people that would rather see underprivileged children go hungry than accept federal funding for food programs. They believe children should be discouraged and destroyed if they question the status quo being erected by this disturbing group of politicians — ones who appear to believe the road to hell is paved with open minds.

All over the nation we’re seeing book bans targeting (almost exclusively) LGBTQ+ writers and/or content. We’re seeing expansions of existing obscenity laws to cover artistic performances by and for LGBTQ+ people.

And now, in Massachusetts, we’re seeing something we haven’t seen elsewhere. At least not yet. But, rest assured, this definitely won’t be the last time we see something like this:

Someone called the police last Friday.

About a book.

What happened next outraged the school community and left them in disbelief.

After the complaint, Great Barrington police and the Berkshire District Attorney’s Office began investigating whether the illustrated novel, “Gender Queer” by Maia Kobabe, was inappropriate content for an eighth grade classroom at W.E.B. Du Bois Regional Middle School.

The book was made available as a resource by an English teacher.

The new thing isn’t some idiot thinking the best way to handle a complaint about a book is to call the cops. No, the new thing we (in the royal sense) definitely shouldn’t be doing is what happened during the course of this investigation that never should have been initiated in the first place.

After the call came in, Police Chief Paul Storti notified Peter Dillon, superintendent of the Berkshire Hills Regional School District, that police were investigating the complaint and referring it to the DA’s Office.

After school let out, Principal Miles Wheat escorted a plainclothed town police officer to the classroom to investigate the potential crime of “obscenity.”

The search failed to turn up the supposedly “obscene” book. The officer (who has not been identified) left empty-handed. Later that same day, the district attorney’s office told the school the investigation was closed and that any questions about whether the book was appropriate for eighth graders was something the school itself needed to address, which is what should have happened in the first place.

When the Great Barrington PD received this complaint, they should have told the caller to take it up with the school. What it definitely should not have done is open an investigation. It very fucking definitely shouldn’t have sent an officer to a classroom to search for the book.

More details continue to emerge as The Berkshire Eagle digs into this:

The plainclothed police officer who entered an eighth grade classroom to search for a book wore a body camera and recorded the incident, leading to more legal questions and concerns.

The American Civil Liberties Union and other free speech advocates say they are alarmed by the recording, as well as the entire Dec. 8 incident that took place after classes let out at W.E.B. Du Bois Regional Middle School.

They also say they cannot recall any instances of police going to a school to search for a book. Schools and libraries have internal procedures for book challenges.

As for the school district, it has issued an apology for not handling this better.

“Faced with an unprecedented police investigation of what should be a purely educational issue, we tried our best to serve the interests of students, families, teachers and staff. In hindsight, we would have approached that moment differently. We are sorry,” the letter said.

I guarantee this sort of thing won’t remain an anomaly. There are groups being formed for the sole purpose of raising challenges targeting LGBTQ+ content and creators. They’re the sort of people who complain about being “censored” when they’re kicked off social media services but are more than willing to truly censor others by getting the government involved every time they come across content they don’t like. Those who don’t lack the self-awareness to recognize this hypocrisy simply don’t care how they come across or what they do, just as long as it hurts the people they hate.

Filed Under: 1st amendment, berkshire hills regional school district, book banning, books, gender queer, great barrington, libraries, massachusetts, miles wheat, obscenity, paul storti, peter dillon, police, school libraries, schools, w.e.b. du bois regional middle school

Techdirt Podcast Episode 359: Red Team Blues, Part Two (With Cory Doctorow)

from the book-club dept

Okay, now we’re getting back to the plan. Two weeks ago we featured an excerpt from the audiobook of Red Team Blues, Cory Doctorow’s new (and excellent) novel, and promised that we’d soon be joined by Cory himself. And now, we deliver! Listen to this week’s episode for a long and far-reaching conversation between Mike and Cory about the book and it’s themes and subjects, plus plenty of interesting tangents.

Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: books, cory doctorow, fiction, podcast, red team blues

Publishers Lobbied To ‘Axe The Reading Tax’ On Ebooks, Then Paid It To Themselves

from the lobbying-for-profits,-not-public-benefit dept

One of the (many) villains in “Walled Culture” the book (free ebook versions) is the publishing industry, specifically in the context of the transition from analogue books to ebooks. What could have been one of the most important expansions of the power and possibility of the book form became instead its opposite – a diminishment of both. As a result of publishers’ greed, ebooks became something you rented, rather than owned. Libraries are particularly hard hit: publishers typically only allow the books they license to educational establishments to be lent out for a limited number of times, or for a limited period. Publishers achieved the feat of using the shift to powerful digital technologies to make books less useful, purely in order to boost their profits.

The Walled Culture book explains in detail how the industry was able to do that thanks to bad copyright laws being abused yet further. But there’s a footnote to this transition that I was unaware of when I wrote my history of copyright in the digital age, but which underlines the extent to which most publishers are driven purely by the bottom line, and care little for readers or writers.

It concerns the taxing of books in the UK. Most goods there are subject to a Value Added Tax (VAT), which is a simple percentage of the sale price – generally 20%. However, certain classes of goods are exempt: this applies to things like food, children’s clothing, and also books. Or rather, to physical books: one quirk of the early ebook market was that ebooks were taxed at 20%, even though physical books were not. This led to a 2018 campaign with the catchy slogan “Axe the reading tax”. It was led by the Publishers Association, which wrote in a press release at the time:

Stephen Lotinga, CEO of the Publishers Association, said: “The government must do everything it can to cut the unfair tax on ebooks, magazine and newspaper online subscriptions.

“It makes no sense in the modern world that readers are being penalised with an additional 20% tax for choosing to embrace digital.

“Whether a book, newspaper or magazine is electronic does not change the principle that we should not be taxing reading and learning.

It was a powerful campaign, backed by just about everyone who cared about books, reading, education and knowledge. It had an extensive Web site Axethereadingtax.org, with lots of very good reasons why the tax should be abolished, such as:

A simpler VAT regime would benefit universities and libraries in terms of freeing up resource and money, as well as students buying educational materials.

And…

Digital formats are vital for the blind and partially sighted, who can listen to audiobooks or read in the largest print sizes on electronic devices, for those with dyslexia and for elderly or disabled people who may lack the physical capabilities to handle print books easily.

The extra 20% tax meant that everyone was paying higher prices for no benefit. The Publishers Association pointed out:

Removing the VAT from ebooks and epublications would mean that people who buy them would benefit from lower prices. The impact on the government would be a modest reduction in VAT revenues and is small relative to reduced VAT revenues from other goods and services which are zero-rated, including caravans and hot takeaway food.

The good news is that in 2020, the UK government finally removed the 20% VAT on ebooks. The Publishers Association was rightly triumphant:

We are thrilled that, as of 1 May 2020, the unfair 20% VAT on eBooks and digital newspapers, magazines and journals has been removed. Knowledge and learning are vital, whatever format you favour.

Three years later, it’s interesting to see how that has worked out in practice, and fortunately Tax Policy Associates have done the calculations. Here’s what they found:

The VAT cut means that ebook publishers could have cut their prices by 17% and made the same profit. They didn’t. Over this period there were 8%+ price reductions for comparable products – computer game and app downloads – where there was no VAT cut. There were no overall price reductions for ebooks.

We also analysed individual pricing data for the 30 best-selling ebooks on Amazon UK in 2020 (as Amazon is by far the most significant ebook retailer). Only four out of thirty showed a sustained price reduction which could plausibly have been attributed to the May 2020 VAT cut. That likely overstates the effect.

UK government figures show that dropping VAT on ebooks cost the state £200 million. In theory, that is £200 million that could have flowed to everyone buying ebooks, in the form of lower prices. Here’s where it actually went:

Amazon generally retains a royalty of around 30%, so we can say that of the £200m annual cost of the VAT abolition, Amazon received about £60m and publishers/authors about £140m.

To put these figures in context, the publishing industry’s UK profit in 2021 was probably around £200m. Even after increased author royalty payments, this looks like a very significant enhancement to publisher profitability.

This is a perfect example of the how the copyright world operates. It lobbies for changes in the law, claiming that the public is suffering in some way, and exploits the willingness of creators to help put pressure on the government to right that wrong. But when those changes are made, the companies do not pass on the benefits to the public or creators, but keep most of it for themselves.

In the case of axing the reading tax, it was indeed axed – but none of the claimed benefits for universities, or the blind and partially sighted materialized. The publishers kept book prices the same, which means that they picked up an extra 20% of an ebook’s price, since they no longer had to pay VAT. In effect, the tax was still there, but now it simply went to publishers, not the government. All the problems the Publishers Association complained about in terms of the harm to books, reading, learning and education remain. But publishers have become much richer for zero additional work, so suddenly these things don’t matter any more…

Follow me @glynmoody on Mastodon or Twitter. Originally posted to the Walled Culture blog.

Filed Under: books, ebooks, publishers, tax, uk, vat
Companies: publisher's association

Virginia Court Rejects Prior Restraint, Says Old Law Used In Attempt To Ban Books Is Unconstitutional

from the your-current-butthurt-is-not-a-time-machine dept

Called it!

Virginia Attorney, Congressional Hopeful File Doomed Lawsuit Against Barnes & Noble Over ‘Obscene’ Books

But I’m not here to pat myself on the back. Anyone (well, anyone other than the people filing the lawsuit) could have seen this coming. It really doesn’t take more than a mere acquaintance with the First Amendment to understand how the Constitution would prevent the government from deciding what books a private company can or can’t sell.

Nonetheless, these buffoons insisted their case should be heard. It was. In the end, they remain on the wrong side of history. Better yet, the decades-old law that hasn’t been enforced in years has been declared unconstitutional, which means a second attempt by Virginia politicians to ban books (using the same law) is similarly doomed.

Here’s the summary from the ACLU, which helped challenged the attempted book banning.

The Circuit Court for the City of Virginia Beach rejected two petitions arguing that Gender Queer by Maia Kobabe and A Court of Mist and Fury by Sarah J. K. Maas are obscene by holding that the statute pursuant to which the petitions were filed violated First Amendment free speech rights and the constitutional right to due process. Likewise, the Circuit Court vacated a lower court determination of probable cause for obscenity.

The decision [PDF] is short and deals mainly with procedural issues the book banners can’t surmount. The court also points out the facts alleged by the censorial plaintiffs aren’t enough to declare the targeted books obscene.

But here’s the part that really matters. The law being used to ban books is declared unconstitutional by the court.

The Constitutions of the United States and the Commonwealth of Virginia operate as a constraint on the pleading of a claim of obscenity as to adults and as to material that is inappropriate for distribution to minors, and the Petitions fail to meet the requirements of the governing constitutional rules.

Virginia Code § 18.2-384 is unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia.

Virginia Code § 18.2-384 is unconstitutional on its face under the First Amendment and the Constitution of Virginia in that it imposes a presumption of scienter on persons who have no knowledge that a book may be considered obscene.

Virginia Code § 18.2-384 is unconstitutional on its face under the First Amendment and the Constitution of Virginia in that it violates due process by authorizing judgment without notice to affected parties.

In other words, “The Big Lebowski.”

If the law is unconstitutional (and it has been declared such by this court), the other attempts being made to ban books certain legislators don’t like are similarly doomed to fail.

Since the plaintiffs can’t make a case for actual obscenity, the burden falls where it should: on those purchasing the books. They’re allowed to decide for themselves (or for their children) what they can and cannot read. The false pretense of de facto obscenity presented by the plaintiffs fails and takes the law down with it. Virginia is now a bit freer, and personal responsibility is the operative term. Parents can decide what their kids read (this was a “for the children” case) and the government has no business telling them they can’t.

Filed Under: 1st amendment, books, virginia, virginia beach

Virginia Politicians Are Suing Books They Don’t Like

from the book-burning-but-for-lawyers dept

Civil asset forfeiture has shown us the government has a weird way of instigating lawsuits. In rem forfeiture cases allow government agencies to file suits against objects, rather than the people they’ve been seized from. This leads to some very amusing case names (even if the underlying process verges on legalized theft), like South Dakota v. 15 Impounded Cats and, um… UNITED STATES of America v. AN ARTICLE of hazardous substance CONSISTING OF 50,000 cardboard BOXES more or less, each containing one pair OF CLACKER BALLS, labeled in part: (Box) “* * * Kbonger * * It’s Fun Test Your Skill It Bounces It Flips Count The Hits * * * Specialty Mfg. Co., Seattle, Wash. * *.

A state law in Virginia allows residents to sue things rather than people. That’s what a couple of ridiculous politicians (Delegate Timothy Anderson and congressional candidate Tommy Altman) have done. Their legal action targets two books — “Gender Queer” by Maia Kobabe and “A Court of Mist and Fury” by Sarah J. Mass — in hopes of securing a ruling declaring the books “legally obscene,” thereby prohibiting them from being distributed by the state’s public schools (either by instructors in classes or via school libraries).

“Gender Queer” offends these Republican politicians for reasons that can probably be inferred from the title. “A Court of Mist and Fury” is a bit trickier. For whatever reason, the pair of pols believe depictions of physical and sexual abuse are de facto obscene. And, for whatever reason, the two scored an early win in court, with a preliminary ruling stating enough evidence of potential obscenity had been alleged that the case could move forward.

Now, FIRE (Foundation for Individual Rights and Expression) has stepped in to ask the court to find the First Amendment far outweighs the overstated (and politically expedient) arguments of these two Virginia politicians.

In today’s brief, FIRE and the Woodhull Freedom Foundation argue that neither book comes close to constituting obscenity as defined for minors under longstanding state and federal precedent. The books “will not appeal to or have value to every audience,” we recognize, but the First Amendment only requires that the books have “value to an audience” — and both plainly do.

The brief [PDF] points out the best arbiters of individual taste are (duh) individuals. Long-recognized rights give parents and readers the option to read what they want. A broadly interpreted obscenity statute — especially when attached to a bizarre law that allows people to sue books — allows the government to decide what people should be allowed to read. That decision isn’t the government’s to make.

Some readers will choose not to purchase or read the books at issue in this case. Some retailers and some librarians will decline to place them on the shelves. Our Constitution reserves these choices for individuals and forbids them from the state. In our pluralist democracy, the First Amendment prescribes a remedy for audiences offended by protected speech: those who seek to avoid “bombardment of their sensibilities” may do so “simply by averting their eyes.” Cohen v. California, 403 U.S. 15, 21 (1971). Declaring books obscene because they include discussions or depictions of sex would reprise a discredited era of censorship repudiated by decades of Supreme Court precedent.

If the court continues to entertain the bullshit arguments of easily offended politicians, it’s going to aid and abet all sorts of censorship — not just in Virginia, but anywhere else opportunists see an opportunity to use someone else’s ill-gotten courtroom gains as leverage to foist their mindset on the people they’re supposed to be serving.

Without clarity from this Court, petitioners like the politicians here may prohibit parents from deciding what their children may read. Nor is this authority limited to books. Broad authority to prohibit or criminalize the availability of materials containing references to sexual content would enable the state to incarcerate a parent who allows a teenager to view an R-rated movie or even to access the internet.

Nor would the effects of such an order be limited to this Court’s territorial jurisdiction. Instead, it would embolden and invite further calls for censorship in school districts, libraries, and bookstores across the country—not only of these books, but of any now targeted by ambitious politicians nationwide. The resulting chill will force libraries, bookstores, and publishers unable to bear the cost of litigation to choose the cheapest option: censorship. But state-enforced silence has a cost, too, and it will be borne by groups without the political power to defend speech of interest to their communities—those who most need the First Amendment and courts that will adhere to its narrow limitations.

Chilling effects can’t easily be contained. Slopes become slippery at a moment’s notice. What somehow worked in Virginia will become model legislation for would-be censors around the nation. The way to head this off is to shut down hyper-local efforts like this one with strong affirmations of constitutional rights. Hopefully, the court will come down on the right side of history when it dives deeper into the issues.

Filed Under: 1st amendment, a court of mist and fury, book burning, books, censorship, gender queer, obscenity, suing books, timothy anderson, virginia

Virginia Attorney, Congressional Hopeful File Doomed Lawsuit Against Barnes & Noble Over ‘Obscene’ Books

from the professional-moral-panicists dept

Two political figures determined to play to the base no matter what it costs them have filed lawsuits against book retailer Barnes & Noble, claiming (one specific Virginia Beach store, along with a Virginia Beach school) the company is marketing “obscene” books to kids.

It’s all incredibly stupid. Here’s Kelly Jensen with the details for Book Riot.

Last week, Virginia Beach (VA) schools voted to remove Gender Queer from shelves. It came after school board member Victoria Manning complained about it and several other books within the schools. After the initial review of the book and several others, Manning appealed the decision made to keep the book and after reconsideration, the book was pulled.

Now a Virginia lawyer is stepping in to take the decision further: he’s filing a suit against the school and against the Barnes & Noble store in Virginia Beach.

Virginia Beach attorney and State Delegate Tim Anderson, posted on Facebook that he and his client Tommy Altman–a right-wing republican running for Congress in the district housing Virginia Beach–saw the Virginia Beach Circuit Court find “probable cause that the books Gender Queer and A Court of Mist and Fury are obscene to unrestricted viewing by minors.”

Altman (the congressional hopeful) is apparently “directing” this litigation. Tim Anderson (who may have a serious conflict of interest problem given his position as a State Delegate [the state equivalent to a Congressperson]) seems more than willing to take the First Amendment for a ride through the state’s court system, apparently hoping to define “obscenity” in a way no court at any level has defined obscenity in the past.

Anderson, who should definitely know better, is presenting some standard procedural efforts as a “victory” for people like him and his client, who somehow believe they can be the final arbiters of published obscenity.

Anderson’s Facebook post prematurely declares victory.

I am pleased to announce a major legal victory.

Today, the Virginia Beach Circuit Court has found probable cause that the books Gender Queer and a Court of Mist and Fury are obscene to unrestricted viewing by minors.

My client, Tommy Altman, has now directed my office to seek a restraining order against Barnes and Noble and Virginia Beach Schools to enjoin them from selling or loaning these books to minors without parent consent.

But that’s not what the documents posted by Anderson show. Those documents [embedded below] are nothing more than the court inviting the sued parties to present their arguments against Anderson’s and Altman’s ridiculous “obscenity” accusations.

What Anderson has posted is two Orders to Show Cause. These direct the sued parties to respond within 21 days of notice. While the Orders state that the court has found “probable cause” that the books are “obscene for unrestricted viewing by minors,” this determination means very little until the court has reviewed the arguments of those being sued.

Literally anything can be called “probable cause” when it comes to court actions. That’s how prosecutors are able to get prosecutions initiated. They present one side of the case and the court determines whether those accusations — entirely divorced from any counterarguments or motions by the defense — is enough to proceed with fact-finding. That’s what is happening here and it very definitely isn’t the “victory” Anderson claims it is. Further fact finding may determine those initiating the action are full of shit. Declaring victory before the accused has even had a chance to respond is the height of disingenuousness.

As the Virginia Beach court dockets show (as of May 22, 2022 — see below), the only action happening right now has been generated by the agitators who seem to believe they’ll be able to sidestep the First Amendment to prevent a private company from offering certain books for sale. They seem to believe the same thing about the Virginia school targeted in this action, but that’s another set of standards completely — one that involves government-on-government action and is a bit more complicated than the virtually ensured loss heading their way in terms of what Barnes & Noble can stock in its stores.

The two Republican politicians are asking for a restraining order, which is the logical move to make. But most of this will remain on hold until the defendants have a chance to respond. Unless the judge is smoking the same partisan crack the plaintiffs are, the TRO requests will remain on ice until after the show cause orders are fulfilled.

It’s unclear whether this court was chosen for its unwillingness to respect the First Amendment or just because it was conveniently located. If this court rules in the plaintiffs’ favor and grants a restraining order, it will have to step over the still-cooling corpse of the First Amendment to do so. There’s nothing in these books that even approaches the standard for obscenity. And there’s a good chance these two agitators know it. Even if they lose, they win. They’ll be able to present their lawsuit dismissals as evidence the entire system is corrupt. It’s (almost) free advertising, especially when so many mainstream outlets are willing to present their allegations (while using the plaintiffs’ loaded language) without pointing out the extreme unlikelihood of their success.

Even if they win at this level, they’ll still lose. The First Amendment protects a vast amount of speech and nothing singled out by this pair of hatemongers even approaches the lowest of precedential bars erected by courts in this country.

Filed Under: 1st amendment, a court of mist and fury, book burning, books, culture war, free speech, gender queer, obscenity, tim anderson, tommy altman, virginia beach
Companies: barnes & noble

Analog Books Go From Strength To Strength: Helped, Not Hindered, By The Digital World

from the technology-is-not-destroying-culture dept

Many of the worst ideas in recent copyright laws have been driven by some influential companies’ fear of the transition from analog to digital. Whereas analog formats – vinyl, books, cinematic releases of films – are relatively easy to control, digital ones are not. Once a creation is in a digital form, anyone can make copies and distribute them on the Internet. Traditional copyright industries seem to think that digital versions of everything will be freely available everywhere, and that no one will ever buy analog versions. That’s not the case with vinyl records, and a recent post on Publisher’s Weekly suggests that analog books too, far from dying, are going from strength to strength:

Led by the fiction categories, unit sales of print books rose 8.9% in 2021 over 2020 at outlets that report to NPD BookScan. Units sold were 825.7 million last year, up from 757.9 million in 2020. BookScan captures approximately 85% of all print sales. In 2020, unit sales were up 8.2% over 2019, which saw 693.7 million print units sold.

The young adult fiction segment had the largest increase, with unit sales jumping 30.7%, while adult fiction sales rose 25.5%. Sales in the juvenile fiction category increased 9.6%.

The two years of increased sales is part of a longer-term trend, as this article from the New York Times in 2015 indicates:

the digital apocalypse never arrived, or at least not on schedule. While analysts once predicted that e-books would overtake print by 2015, digital sales have instead slowed sharply.

Now, there are signs that some e-book adopters are returning to print, or becoming hybrid readers, who juggle devices and paper. E-book sales fell by 10 percent in the first five months of this year, according to the Association of American Publishers, which collects data from nearly 1,200 publishers. Digital books accounted last year for around 20 percent of the market, roughly the same as they did a few years ago.

Digital formats possess certain advantages over analog ones, notably convenience. Today, you can access tens of millions of tracks online with music streaming services, and carry around thousands of ebooks on your phone. But many people evidently continue to appreciate the physicality of analog books, just as they like and buy vinyl records. The Publisher’s Weekly article also shows how the digital world is driving analog sales:

Gains in the young adult category were helped by several titles that benefitted from attention drummed up by BookTok, users of the social media platform TikTok who post about their favorite books. They Both Die at the End by Adam Silvera, released in December 2018, was the #1 title in the category, selling nearly 685,000 copies.

As a recent post on Walled Culture noted, if publishing companies were less paranoid about people sharing snippets of the books they love, on BookTok and elsewhere, the already significant analog sales they produce could be even higher. If the copyright industries want to derive the maximum benefit from the online world, they need to be brave, not bullying, as they so often are today.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally posted to Walled Culture.

Filed Under: books, complementary markets, digital paper books, ebooks