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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.
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?
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
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.
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.
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)
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.
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.
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