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?"

Comments

So

[tsa]

If I understand this correclty I am an artist when I burn the music I illegally downloaded?

Re:So

[imoou]

Making != Creating, so you may be a music producer if you burn those music.

Re:So

[Anonymous Coward]

If I understand this correclty I am an artist when I burn the music I illegally downloaded?

No, but you have made a music CD. Not an album in the sense of releasing an album, but the physical article. If you photocopied a kiddie porn photo, you have just produced an article that is child porn, too!

The law is not a prohibition only against the initial photographer of such things... it's against ALL PUBLICATION AND DISTRIBUTION of pornographic material depicting (real) minors! Not just the original abusers, EVERYONE in the whole chain right to the end person who's getting off on it are in violation of the laws!

Re:So

[SamSim]

No, I think that just makes you a music manufacturer. You occupy the same position as any other CD pressing plant.

In this context I believe it is the actual physical material which is considered pornography, not the images themselves. It's like distinction between a story in a newspaper, and the actual, physical ink on the page. In this respect he did indeed "create child pornography".

The real issue I see here is: how tangible must the copy be to be considered the creation of a new copy? Surely if the data is on his hard drive then that counts, by this measure. So what if someone innocent blunders on to a child porn site by accident and backs out immediately, leaving a few images in his internet cache? What if he deletes his cache, but still leaves the data itself all but intact on his hard drive? Does the pattern of illuminated phosphors on his monitor count? Does the information in the modem wire count?

Re:So

[SirChive]

Common sense tells us that somebody has to be harmed by your actions for you to have commited a crime. Possession of an image of an illegal act does not cause harm. It's just too vague to say things like possession "might inspire" other acts. We've all seen photos of people being shot. Does possession of an image of a murder make us guilty of murder?

Sex crimes against children are evil. But we can't fight them by throwing out such a broad net that we destroy the concept of criminality and justice. If a person buys or sells then, yes, they are guilty of distribution because they are providing fiscal incentive for a crime. By owning a picture or looking at a picture,, in and of itself, is simply not criminal. It may be sick and twisted but it's not a crime.

The laws are so broad now that you could randomly download a ton of pornograhic images and then delete them. But if somebody finds them in your recycle bin and a few include minors of any sort you could go to jail for a long time.

Uhh, it's Child Porn

[sheldon]

Please change the title.

Child Porn is classified completely differently from Adult Porn, for good reason.

Three points

[John Nowak]

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.

Re:Three points

[Anthony Liguori]

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.

This would be an argument that child pornography should not be illegal. From an economic perspective though, if people are consuming child porn, they are creating a demand which is going to increase the supply. This is why child porn is illegal to possess--it indirectly contributes to more children being exploited for it (the general wisdom being that the vast majority of child pornography is exploitative--if not all of it).

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.

You choose to act upon impulses though. I often have an impulse to smash stupid people's heads in, but I control it. You may say "he's only consuming so it's not destructive..." but then see my response to #1.

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.

The reasoning behind computer-generated child porn is #1. It creates a demand...

It's certainly true that the current laws are curious. Even the most softcore porn featuring a 17 year old is illegal, yet incredibly hardcore material from the follow day that she turned 18 is legal... Strange.

This judge got out of hand. If the guy has a descent lawyer, it'll be appealed. The guy may end up walking which would be sad.

Dictionary?

[venicebeach]

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?

Replying to Your 'three points'.

[sglider]

No children are harmed by such an act.

If you ignore the fact that mass producing of Child porn only fuels the interest for more child porn, adding 'fuel' to their proverbial 'fire'.

COPYING child porn is not the same as CREATING NEW child porn.

I agree with this statement; I'm not sure which hole they pulled this verdict from, but it can't stand on that premise.

It is only illegal to act on it.

Does encouraging an act count? By people downloading Child porn, does it give those that hurt the children more means to make child porn? I'm not trying to make a point with this question, I'm actually asking that question.

Many of today's sex-related laws are based on some twisted idea of morality, and nothing more.

I disagree with the 'nothing more' part; Also the 'twisted' part. It's far to say that the majority of people find the act of murder repugnant, so there's a law against it (not to mention the detrimental effect it has on a society). Also with Child pornography. The act itself screams, "this is wrong", and the majority of people agree with that, so there's a law against it. Keep in mind I only speak of social law, as opposed to economic law, where those with the most money make the rules.

Re:Replying to Your 'three points'.

[Mr2001]

By people downloading Child porn, does it give those that hurt the children more means to make child porn? I'm not trying to make a point with this question, I'm actually asking that question.

If you're seriously looking for an answer, then here it is:

No.

I'm willing to bet that the vast majority of all child porn on the internet is made available for free. It is, after all, highly illegal, and pursued a lot more vigorously than warez and other illegal data sharing. If the people who distribute it wanted to collect money for it, that would mean setting up a payment scheme, which would make it a lot easier to track them down and arrest them.

Therefore, the people who are only interested in distributing child porn for money will do it offline, where they can know exactly who they're dealing with to minimize their risk of being arrested. The people who are interested in sharing child porn with other pedophiles online will do it as anonymously as possible, which makes it difficult or impossible to charge for it.

I'll also answer a question you didn't ask, but which is implied as part of that one: Not all child pornography hurts children. Remember, the legal age limit for appearing in porn is 18 (AFAIK), even though in most states and countries, teenagers can legally consent to sex at age 16 or earlier. A video recording of teenagers having consensual sex would be considered child porn, even though the participants aren't children and haven't been forced into anything. The court decision explains that at least some of the illegal pictures in question were of teenagers (but who knows how willing they were to be photographed).

["Many of today's sex-related laws are based on some twisted idea of morality, and nothing more."]

I disagree with the 'nothing more' part; Also the 'twisted' part. It's far to say that the majority of people find the act of murder repugnant, so there's a law against it

If that were the only reason to outlaw murder, it wouldn't be a valid one. Luckily, there are perfectly good reasons to outlaw murder that don't boil down to "we think it's icky", such as respect for the victim's right to life or his right not to be attacked.

If you polled a group of random Americans, depending on which part of the country you pulled them from, you might find that a majority of them found homosexuality or Islam repugnant, but again, that wouldn't be a valid reason to outlaw homosexuality or Islam. In a civilized society, you have to be tolerant of your fellow man, even if what they're doing makes you uneasy - unless they're actually harming someone.

Forcing children to perform sex acts is harmful. But recording teenagers having consensual sex (with their permission) is not harmful, and neither is downloading a file or burning it to a CD-R.

Real reason for this ruling

[panxerox]

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.

No, he didn't

[phorm]

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.

What's the difference...

[TrumpetPower!]

So, out of curiosity, what's the difference between:

• burning a CD;
• copying to a flash drive;
• copying to a hard drive;
• copying to RAM;
• copying to a monitor / TV;
• printing;
• copying from one 'Net router to another?

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&

The question here

[commodoresloat]

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.

the scary thing is

[extra the woos]

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.

Activist Court

[yintercept]

The point is not whether the lone pedophile is a more or less despicable person than anyone else in the chain

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?

[missing000]

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.

Re:Why?

[Eol1]

We care because we care about the victim. If I am going to get 20 years for looking at childporn or 20 years for actually raping the neighbor girl, I might as well rape the neighbor girl.

You see this problem a lot in crimes such as rape where the punishment is out of proportion to the actual crime. If the penality for rape is 20 years and the penality for murder is 20 years, I might as well rape and murder you rather than leave a witness alive to talk. I have a better chance of getting away with it and do the same time if caught (as most sentences are served concurently). If I break into your house and murder you (lets say you caught me in the act) I might as well murder the rest of your family while I am at it as I am doing life regardless. This is why we care about fair sentences and not criminalizing petty behavior.

Re:Is it just me?

[Xeth]

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.