Slashdot Mirror
Court Rules Burning Porn = Making Porn
An anonymous reader writes "An appeals court has upheld the prosecution of a Michigan man who was charged with production of child pornography after downloading and burning pornographic pictures from the Internet. The pictures were created by a Russian website that the man was not affiliated with in any form. From the court decision (PDF): 'After reviewing the dictionary definition of
the word make, the circuit court stated that the bottom line was that, following the mechanical
and technical act of burning images onto the CD-Rs, something new was created or made that
did not previously exist.' Is this simply a court's overreaction to a scumbag pedophile? And how does this affect the lawsuits by the BSA, RIAA, and MPAA?"
If I understand this correclty I am an artist when I burn the music I illegally downloaded?
-- Cheers!
Please change the title.
Child Porn is classified completely differently from Adult Porn, for good reason.
1. This verdict is absolutely crap. COPYING child porn is not the same as CREATING NEW child porn. No children are harmed by such an act.
2. Submitter -- Why is he a *scumbag* pedophile? People generally don't choose what and who they're attracted to. It is not illegal to be attracted to children. It is only illegal to act on it. Provided that he doesn't, he can still be a good man in my book.
3. Laws against pedophiles (not against pedophiliac acts -- pedophiles) are counter-productive. For example, it is illegal to create computer-generated child pornography. Why!? Provided that it gives people who are into such things a release, and no children are harmed, I have no problem with it. Many of today's sex-related laws are based on some twisted idea of morality, and nothing more.
By burning it. Circuit Court: burning CDs of porn == making porn
If I "make" the music I burn to CD do I then own the rights to it? If not, then what does it mean to make something?
After reviewing the dictionary definition of the word make
Is it just me or does consulting a dictionary sound like a really poor way of deciding an issue of law?
While I don't condone this pedophile's actions in the spread, making or distribution of such material I believe the courts were wrong in how they defined "making porn". It's a digital copy. It's not as if who ever burns a CD/DVD "creates" the piece of work; eg. If I were to copy a disc, I certainly didn't write the code, write the UI etc. and this is what it looks like they jury and court tried to make him guilty of.
I'm all for riding the demand and material of such child pornography in every possibly way (obviously not conflicting with law or human rights (ie: torture)) but from what it looks like, the jury went too far by taking the definition of "making" out of context / too close to the line to be of any good. There's an understanding for wanting this person to be put away for his disgusting actions, but maybe I'm wrong in my understanding of this judgement.
Technically, it's just a strage medium. A CD or DVD is no different then a hardrive in the basic function (other then technical limitations on size, rewritability, and speed). So shouldn't just downloading it to a hardrive be considered making a copy of it by this logic, since the data is "made" on the hardrive? If the downloaded it onto a Tape drive, USB drive, or portable hardrive, would it still count as making a copy? What if he ripped the hardrive he downloaded it to out of his computer? Would that then turn into making a copy? I don't accept. What he did was terrible, but from a overall perspective, this sounds like the kind of loophole that could be taken advantage of in situations where what the person did wasn't really that bad. I find it hard to believe this was done. It seems like such a common-sense loophole that it would have been patched up long ago.
In undeveloped countries, the consumer controls the market. In capitalist America, the market controls you.
War isn't about who's right. It's about who's left.
The real reason for this ruling is to find a way to give child porn downloaders more jail time, reason or precident have no meaning. If prosecuters can finagle or subvert any method of logic to make J6P think that they are "protecting the children" TM then by god thats what they are going to do.
"It's so convenient to have a system where everyone is a criminal" - A. Hitler
IANAL but if the law was intented to apply to person(s) mass producting child porn for distribution then I would believe that only one copy (or even just a couple) of CD-ROMS would not apply to this law. If convicted there is a pretty stiff penalty so I would think only possession would apply.
"Making" porn would most likely imply forcing a child into sexual acts in order to photograph, or "make", the pornography. Unless, of course, the law is in reference to mass production of this illegal content.
Either way, IMHO the guy should get the maximum penalty for possessing child porn, but not penalized for making it. Someone in Russia made it.
"A government is a body of people, usually notably ungoverned." - Shepard Book Quoting Malcolm Reynolds
At some point though, it sounds like he was supporting the production of child pornography, and that is what they should have nailed him for. Instead, they've come up with this burning=making precedent, which could be misused in so many other cases it's scary. From the linked article though, I catch very little about burning and a lot about downloading... the PDF goes into more about the burning.
Now, there are a few points:
a) He got the pictures from a Russian website. From my experience with porn websites in general, you probably aren't going to get much content from a single site, so chances are they he was using some sort of paysite. In a way, he was in fact funding the creation of such content.
b) In the PDF, possibly unrelated, the guy had spycams which he used to take pictures/videos of a foreign exchange student staying at his house. It doesn't detail the age of the student though... but it might be beyond the age of majority.
c) We're not talking about a few CD's... there were approximately 50 of them. This in itself indicates a dangerously obsessive behavior, but again if they were all different I don't agree with the arguement that burning=creation. Certainly it seems a stretch to put somebody who archives such things on the same rack as the person forcing children into sexual acts. However, it doesn't indicate whether there were multiple copies of the same clips, or 50 discs worth of unique content. This in itself could be important, as if may be that the defendent was in fact producing media for purpose of distribution. Again, not necessary a charge of creation in itself, but pushing the line a bit.
What scares me:
it found that one who burns a computer image onto a CD-R is making a reproduction or copy. The court ruled that "the crime is committed when the person clicks the mouse to reproduce the image onto the CD-R." The circuit court also rejected defendant's argument that MCL 750.145c(2) was
OK, fine so we've got a copy. A reproduction.
But above that we have
After reviewing the dictionary definition of the word "make," the circuit court stated that the bottom line was that, following the mechanical and technical act of burning images onto the CD-Rs, something new was created or made that did not previously exist.
Which dictionary did they use... the judge's book of court-convenience? Also, what didn't exist? The disc existed, the files existed, they simply were not located on the disc at that time.
Personally, I have no problem with them nailing the guy properly under the existing laws. He possessed, funded the creation of, and possibly had intent to distribute an illegal material. There are also the other charges in relation to his cameras. However, this sets a terrible precent and I think it is incredibly stupid overall to use the given arguement. Now the Supreme has the choice of junking a very stupid legal decision/precedent and letting out a pedophile (again, 50 discs shows a rather dangerous obsession), or approving it and letting it stick for later cases involving copying of files to CD.
The issue at here isn't whether acting as a pedophile should be illegal, but whether the courts are far stretching laws in order to catch such individuals, to the detriment of society as a whole.
Unless you mean by downloading...
He joined the chain at the time he downloaded the articles. Until or unless the material was pass on to another individual - thus creating another link in the chain - he had already become a member and the downloading was a moot point.
We're not arguing that what the guy did wasn't an illegal act, we're just argueing which parts of it are actually illegal vs the creation of new definitions of illegality.
Here you go: Martin_Niemoller
It's the principle of the thing. Yes, child porn is one of the most evil things there are, but if the judge can make bad decisions in a good case, what is to prevent him from making equally bad decisions in less good cases? I suppose the rationale for punishing customers of child porn is to reduce the market; if no one bought any, there'd be a lot less made. I doubt that is true, simply because I suspect most makers do it for themselves. But that's not your argument, is it?
How about we extend that philosophy to reporting on child porn? After all, if no one knows about it, there'd be a lot less made.
OK, and now, extend that to reading about it. After all, if no one reads about it, reporters won't have any incentive to write about it, and by the chain we've established, a lot fewer people would learn about it, and it's at least arguable that it could reduce the market for child porn.
Congratulations! If you said "good idea" to that, then you should volunteer yourself for a stay at the local jail. But if you said "ridiculous", then you have just refuted your comment. Either way, your comment loses.
Infuriate left and right
So, out of curiosity, what's the difference between:
I'm all against exploiting children, but let's not destroy the law in the process, hmmm? Stretching (breaking, really) the law like this to go after a bad guy does more to harm the law--and thus society, and thus children--than the act this man was convicted of. If we want to make a law against duplicating child porn, that's one thing...this, however, is exactly what neocons should be upset about when they rant about ``legislating from the bench.''
Cheers,
b&
All but God can prove this sentence true.
It took me more than 3 minutes to understand why "burning" would be the same as "making" stuff.
[...] after downloading and burning pornographic pictures from the Internet [...]
Right, so he downloaded it, printed it and later obviously showed regret when he burned the pictures. Why would that be worse than keeping them...? Oooh, *that* burning.
is whether the court would have the same ruling had he photocopied the naked pictures and kept them in a pile under his bed. Or, indeed, tore out his faves from the magazines and "produced" a new work by stapling together a pile of old clippings. I seriously doubt the court would rule this way in such cases. Had he distributed the CD that would be another issue, but I fail to see how burning the cd is itself producing child porn. The fact is, the law treats producing child porn differently than possessing since production involves the direct exploitation of minors (whereas possession may exploit them but in a very different but less direct way). Another point is that burning the cd is no different from downloading the pics in the first place and keeping them in a folder, or even just looking at them in your browser, copying them to a cache. This is just a way of raising the penalties against someone who is without doubt a criminal but probably not a "producer" of kiddy porn. The problem is that it has implications far beyond the instant case, something a judge should have figured out before making such a ruling.
It's obvious they just want to put people in jail for 20 years for posession. Why not just make it 20 years for posession? They are clearly trying to take advantage of the law to give someone a harsher sentence then they are able to. Put it in this perspective. You accidently hit someone with a car. A little injury (like a broken leg or something like that), but they are still alive. How about the people in the court manipulate the situation like this. You drive knowing someone may get injured or even killed. Since you knew that, it's attempted murder. This kind of jumping and skipping over crucial parts of what makes the difference between "attempted murder" and "hitting someone with a car" seems pretty similar to this article.
In undeveloped countries, the consumer controls the market. In capitalist America, the market controls you.
What if some scumbag sends me a link and I visit it and it's some sick shit like child porn. I immediately close it BUT THERE'S A COPY MADE IN MY BROWSER CACHE.
Have I just produced child pron? Dear god I hope not, but it seems like that could be argued based on this ruling...
scary
Why wasn't this guy just put in jail for possession of it. Posession of it is illegal and by burning it to a cd well.. he pretty much proved his guild, there.
replacing it with NEW Folger's Crystals! (lets see if they notice the difference)
You could argue that if simulated rape, torture, and killing in a movie are ok then simulated sex with a child is ok. Somehow it just doesn't feel ok. To me anyway.
BTW RE: your sig -- you sure do sound like a libertarian;-)
People have gone to jail for obviously innocent pictures. Perhaps some judges have a little common sense, but when it comes to demonized things like child porn, drugs, and terrorism, there will be plenty of innocents caught up. Even if found innocent in a court of law (which is quite likely in the case of kitchen sink photos), the stigma with being even an acquitted sex offender makes holding or finding a job nearly impossible and one can forget about ever running for public office.
Just finished reading the ruling and I personally think the judge is intentionally misreading a law that hasn't been updated to incorporate the realities of the digital age.
He seems hellbent on 'The decision by the Legislature to specifically include reproductions or copies in defining child sexually abusive material, which term is then incorporated into subsection 145c(2), leaves no room for contrary judicial construction.'
So if our pedo has just MOVED the file to CDR instead of copying them would this not apply? Basically it appears to me that the pedo is getting nailed for making backups. I highly doubt the orginal intent of the law was to prevent people from backing up their data. The problem with reading reproduction as he read it is anything that isn't the orginal is a reproduction. Our pedo reproduced the the images from Russia, reproduced them when he stored them, reproduced them in his cache when he moves them around his drive or views them, etc etc.
This kind of narrow reading really pisses me off and I think people are missing the broader impact of this ruling on other more popular slashdot illicit actions (like warez or copyright infringement). People really need to look past the child porn part of the ruling as the judge wasn't ruling on child pornography, he was ruling on the legal meaning of the word reproduce in the digital age. Hopefully the SC throws this out and sides with our pedo.
De Oppresso Liber
While I agree with you that this scumbag needs to rot in jail for a good, long time...
Pedophilia is not a sexual orientation. Gay and straight are sexual orientations. They have nothing to do with this filth.
Now, back to the original point, I think that when someone has done something as horrifying as download child pornography, a court's natural reaction, if they're human, is to throw every conceivable book at the bastard. I think that the reason they claim that burning a CD containing kiddie porn is the same thing as "making" porn is that he was making media for the express purpose of carrying this kind of filth. If he put it on his hard drive, he easily could have deleted the files, so he didn't "make" a hard drive. But when he burned a CD, he made a CD, and the only way to disassociate the data from the media is to physically destroy both. In that respect, I can see how the court would find that he was making porn.
Now, let's all pray to our respective gods that this guy never sees the outside of a prison cell ever again.
If it's not one thing it's your mother.
The bit sequence on his hard drive did not exist until he downloaded the stuff. It's persistant storage. CD not even necessary.
Cheers
The way criminal prosecution works is that the widest possible number of charges are filed in order to get the severest compounding of sentences. No matter how repugnant you may find a person or their acts, this practice of trumping up multiple charges for single offenses is dangerous.
I recently encountered a case where a 24yo claimed that she had been raped by a then friend of hers after they both were out getting completely drunk. He was convicted on separate charges for, basically, every place he stuck it. The definitions of each were such that the jury was compelled to convict on the same act multiple times. So, rather than getting twenty years in prison, he got forty--about what you'd get for first degree murder in most of Europe.
Could someone please find a link for this?
:(
Be careful what you Google for, Big Brother is watching.
Quidquid Latine dictum sit, altum videtur (anything said in Latin sounds important)
If you are sexually abused as a child, the chances that you end up ALSO experiencing any or all of the above problems increase considerable due to the incredible psychological trauma that comes with sexual abuse.
There are many, many people well above 18 years old that cannot handle the psychological implications of totally consensual sexual relationships. When a child is subjected to sexual encounters before he/she can even comprehend the consequences or morality of those situations, the adverse psychological impact is magnified when they realize it later on in life.
I find it very bizarre that the same country that sobbed griveously over the death of Jon Benet Ramsey, who was dressed up like a hooker and paraded around in beauty contests before she turned 10, is chomping at the bit to put away pedophiles.
First of all, the whole country did NOT sob over the death of Jon Benet Ramsey. In fact, all mentions of that case among regular people that I heard involved something along the lines of "why is she getting so much attention when there are so many other children who ignored?"
Anyway, I think most educated people would say that the Ramsey family's exploitation of their daughter was wrong, too. Some of those people would say that the way that they dressed her was wrong too. But, just because her family dressed her in an "unappropriate" way doesn't mean that we should care any less about her death than we would any other child.
I agree that this was an extremely bad ruling. Basically, because we don't like the defendent the court is willing to twist important legal definitions to get a harsher sentence. This is a prime example of the legal activism that Repuplicans are supposed to be against.
The difference between distribution and possession sits at the heart of the IP debates on Slashdot. Where is the line between our personal use of data and distribution? In a system of rule of law, we need a cleaner definition that not only suits porn cases but other activities.
We may hate the defendent in this case with all of our might. However the activist prosecutor with activist judges bending the distinction between distribution and possession does a great deal of harm to the integrity of the legal system.
BTW, if we feel that 4 years is too short of a time for the possession of child pornography, then we should change the law. This thing of bending meaning out of definitions ultimately has the effect of destroying the rule of law.
Unfortunately, I fear that the Republican defense of legal activism will end up only including liberal activism and will ignore conservative activism.
Why do you care about the message the punishment sends? Is the punishment a deterrent for the commission of the crime?
In this country we have a judicial system that is based on the prevention of crime, not retribution.
The question we should ask here is what punishment is the most effective in preventing future acts, not what is 'fair' in relation to other crimes.
Indeed. Just look at the comments for the story. Everyone who even vaguely sides with this guy is loudly proclaiming how much pedophiles are scumbags and that every breath these deranged and inhuman creatures take is an affront to all that is good and moral, as if they're afraid of even a casual association with such people.
The extreme criminalization of such a simple act (viewing/possessing images) scares me. I live in a dorm. It's a public place, and sometimes I leave my door open. What if I step out for a moment, and someone loads some child porn on my machine and runs away? Or what if my machine gets compromised and starts downloading such things in the background? Then I'm totally screwed. I think people need to step back from the visceral response of terror and hatred that comes from sexually abusing children, and consider things rationally for a moment.
If your theory is different from practice, then your theory is wrong.
This seems like a most strange way to interpret the law. In my world, 'making a video' generally implies pulling out a video camera and filming something. I think that it would be very fair to presume that the legislature intended to make just such a disginguishment when it set out posession and production as two separate crimes.
Now if the guy videoed kids using his bathroom and shower, that would easily classify as 'making' a video of kids (although whether it would classify as porn Vs. simple violation of privacy might be it's own legal fight).
This seems, to me, like a example of 'good case, bad law'. This guy deserves to be sent up for a long time, but I think that the courts are stretching the law just so that they can give the bastard an extra few years in the slammer.
Free Software: Like love, it grows best when given away.
So does Burning Books == Making Books too??
May you be reborn as a pedophile so that mercy may take root in your soul.
That would deter crime.
Our justice system isn't just about deterrence. There is a theoretical sense of balance to it, in that the punishment should fit the crime. If you break a minor law, you recieve a minor punishment. Break a major law, and receive a major punishment. That's why people don't recieve life inprisonment for running stop signs. Sure it would deter the crime, but at what cost?
The fact of the matter is that downloading a copy of a crime that somebody else committed is not the same as committing that crime yourself. They are two distinct actions, and by lumping them together the moral high ground occupied by the system gets extremely muddy.
The ______ Agenda
If you're going to trade in kiddie porn or rape children at all, it doesn't matter what the penalty is. You're a sicko, and sickos don't sit there and thing "Well, I'll do it as long as I won't get more than 10 years." People who commit sexual crimes against children are sickos, and the punishment is mainly about removing them from society.
We punish kiddie porn traders very hard because:
- It's a strong indicator the person is likely to commit a more serious crime later, so let's get them out of society for 20 years once we've figured out they're a sicko insted of waiting until they act on it
- Kiilling the market for kiddie porn is just as important as killing the supply.
paintball
first of all pls define "child"... The majority of societies have defined the 18th year of an individual's life as a threshold... anyone knows how did this come? Because AFAIK nature strongly disagrees and makes females able to reproduce at a much earlier age... Moreover, i don't know about USA with christian-conservatism that has arised there recently, but in Europe the majority of boys and girls start their sexual experiences earlier than this threshold..
furthermore, pornography is NOT a crime by itself.. or else pls convict De Sade, Nabokov (for lolita) and many others.. sadly, US courts are capable of even that..
As for the making=burning debate, i really don't get it.. What is the important difference of downloading ("making" a file on a HDD) and burning ("making" a file on a CD-ROM).. What about USB sticks, Magnetic Tape and other storage media?
It is society's collective hypocrisy to throw a porn-downloader in jail, while flooding Thailand with sex-tourists every damn summer
www.lemonodor.com A mostly Lisp weblog
What I mean by "successfully" is someone who completes the counselling, where "completed" is determined by both the psychologist and the patient. Anyone who is going simply because they are ordered by the court and has no remorse or desire to learn and understand and change will have a very hard time falling into the "successful" category. Not impossible, but certainly very difficult. However, the majority are quite willing to understand the pattern of relapse and deal with the issue. They simply want to get back on with life.
The figure of 50% is seriously significantly higher than all the research I have seen on this topic, and believe me, I have seen a lot of research.Figures vary based on studies, of course, but studies I have seen indicate that the number is more like 10-15% of offenders who are run through the system actually reoffend. And the number of offenders who are actually treated is lower still. This is, incidentally, lower than recidivism rates for non-sex offenders. There is a basic overview here whose numbers are more in line with the kind of research I've seen in the last decade.
You're certainly right that the majority of pedophiles who have committed a crime have not been caught. There is also a large number of those who have not committed crimes yet, but are so afraid to talk to somebody about the problem that instead they let it simmer inside them until they end up offending. Then there are those who have committed an offense, feel remorse and guilt about it, but are terrified to talk to a professional about it because any psychologist is legally bound to report even vague admissions to the authorities. I would expect this class of people is far more likely to reoffend, and that many would never get caught and/or get any help. But the truth is that researches know very little about the class of pedophiles (whether they have offended or not) who never get arrested. It's very difficult to make assumptions (or generalizations) about these people because there's simply not much data.
The general impression that sex offenders have extremely high rates of reoffense is perpetuated in part by the media. After all, you certainly don't hear about those who offend once and never again. You hear about those who reoffend, even though they are truly a minority.