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?"
This is already true in the UK. Someone who downloads child pornography over the internet is considered to be "making pornography" under the same laws that the photographer taking the pictures would be charged under.
This can lead to sentences for downloading or copying and distributing child pornography that approach those for making it in the first place, which is treating the two acts as equivalent, when they are not.
More relevant to the slashdot crowd, if one copies child pornography for any reason whatsoever one can be considered to be "making pornography". If one administers computers used by others and discovers child pornography in one way or another, and copies it aside as evidence, one is at risk of being accused of "making pornography". Therefore the general advice is that if one finds a computer with child porn, one should step away from the computer and call the police, not attempt to do any of the usual sort of evidence preservation, further investigation, etc, that one might if it was another sort of computer intrusion.
"For a successful technology, reality must take precedence over public relations, for Nature cannot be fooled"
In response to #2: I agree with part of what you're saying, but there are three things to consider.
A. Looking at porn makes people want more porn. The link between porn and sexual conduct is quite controversial, but the effect of viewing porn on the demand for porn is not. Viewing porn makes people want to view more porn. So far so good. This brings us to....
B. The demand for child porn causes some child sexual abuse. Some abuse would occur anyway, but some of it is profit-motivated. Increased demand for child porn means a stronger incentive to make the stuff. Note that this is true even if no buying or selling is involved (ie trading). Open and free distribution might undercut the market to some extent -- but given that music companies continue to thrive despite widespread file-sharing, I doubt that market saturation will make child porn unprofitable.
C. Viewing child porn violates the privacy of the kids. It's like reading someone's diary or peeking in on them in the shower. Unlike grown-ups, kids didn't consent to being displayed for sexual purposes. These kids are already traumatized; how do they feel moving into adulthood, knowing that people are viewing their abuse?
I do tend to agree with your third objection, however. I suspect that if synthetic child porn were legal there would be quite a bit of substitution going on -- purveyors of real child porn would find it more profitable and less risky to just make the fake stuff and pretend it was real. There might still be an effect on demand that might outweigh this substitution, however.
Of course, if child porn causes people to want to molest kids then you don't need any of the above arguments in order to oppose it. But even if it doesn't, it may still cause harm through its effect on the market.
Make cheese not war 8:)
I'm not condoning anything, but it's really getting out of hand. There are people dying by the thousands in this country and abroad, people in serious trouble with dope, women who aren't getting child support and who are getting beaten up, and yet with all these things going on, what America considers the most heinous crime is sex with children. 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.
I don't know about anyone else, but if I see a little kid coming my way, I go the other direction. I would never address a child without his/her parent present, which is kind sad because when I was young, there were lots of adults who would talk to me. It would be kind of nice to be a buddy to some kid on the block, to find out what he/she is about, maybe even toss a ball around or something, but forget that. I don't need those problems.
As for the poor bastards who get themselves in a predicament with a kid, they might as well leave the country because their life is effectively over in this country.
Yuck.
But you're totally missing the point, which is that possession is already illegal. It's not like the guy wasn't already going to lose his job, his family, and his future, simply for possessing the stuff. That's a pretty bad punishment, you know.
It's the same principle as having different degrees of murder. If you execute everyone, regardless of whether they premeditated the deed and regardless of whether there were extenuating circumstances, then you send out the message that premeditated murder induced by greed is no worse than murder committed in desparation by someone who's suffered years of domestic abuse. Similarly, if you punish everyone who possesses child porn the same as those who are actually out there directly abusing children, then you send out the message that raping a child and selling photos of the deed is no worse than downloading a picture from the internet and burning it to a CD.
Are you seriously telling me you don't think raping a child is worse than burning child porn to a CD? Because if you do think it's worse, then surely you're in favour of having a law that says it's a worse crime that needs a harsher punishment?
Hey, how about we distinguish in law between "possessing" child porn and "producing" child porn? That way, we can charge the guy who's only burning it to a CD with "possessing" it, and save the harsher "producing" punishment for the people who are physically abusing children... oh, wait.
Your protectiveness is understandable and admirable. And while I won't attempt to sway your opinion with a cogent argument (because, as you admit, it will do no good), I will at least attempt to make a point.
I am a convicted sex offender. In my late teens, I did some things with a 12-year-old that were unspeakably stupid. This behavior worked went unchecked for several years, and developed into attitudes, that in turn developed into further behaviors with another young girl. I convinced myself that so long as I had their consent, it couldn't be hurtful. I held this belief very strongly.
My stupidity caught up with me soon enough, and I was arrested. The arrest was a turning point of my life. It sent me a message that I wouldn't have otherwise gotten from logical arguments. In that way, I can certainly relate to you when you say that no rational argument will change your opinion (which is to "kill the fuckers"). There was no trial. I plead no contest. Although I could likely have avoided jail for various legal reasons, it would have meant pleading not guilty and effectively calling the children and their families liars. It would have meant putting them on the stand. Jail was far more preferable to me, even though I was terrified of it.
When I was released from prison I sought conselling. My fundamental attitude had already been changed by then: it didn't take much time after my arrest (but long before my conviction) to understand and believe that any sexual encounter with children is devastatingly hurtful -- and not just to the girls themselves, but also to their families, and to my own family as well. Counselling helped me to understand the psychology behind pedophilia, and how to manage it.
And it is perfectly manageable. What decision do I have? Hurt kids, or don't hurt kids. It's not even a question that requires considering. You hear about convicted sex offenders whose defense seems to be "I couldn't help myself." Ludicrous! They made a choice. I made a choice. I paid for it, I dealt with it, and now it's in my past. Still, I constantly worry about how the girls and their families turned out. As I should, in some respects.
Now, you would have me killed. (There was a time when I'd have obliged you, but those times are past.) Perhaps you would like to see a law passed that imposes mandatory death penalty on all sex offenders where children are involved. Even if this would solve a problem, is it feasible? Can society actually do this? Would this even happen?
No.
So what instead happens is that a large portion of the population carries the sort of rage and hate that you have, without understanding the nature of the crime and the psychology of the offender. What's very well known, however, is that high degrees of stress and concern increases the likely hood of recidivism. That is to say, the more people call us scum, wish us dead, insist we are hopeless, the greater the chance of relapse. This is true of any offender, incidentally.
I think there probably are those who are pretty much hopeless. But there are a large degree of those who are definitely not. It is a perfectly manageable problem. All I want is to live a normal life, within reasonable constraints. That is to say, I certainly don't expect I should be allowed to work at a daycare center, or teach in schools. If you knew about my past and you weren't concerned about me being around your children, I would be concerned about you. What I would like is for people to judge me for who I am now, not what ugliness exists in my past.
I owe a debt to the people I have hurt to live my life with honor and integrity, and when people at large insist that I am a worthless pariah and should be executed, there is a danger that I start to believe it. An
No matter how disgusted you are by their actions, the people that you're trying to discourage fro this behaviour are, in fact, human beings. They are capable of rational thought. And if you want to stand any chance of effectively altering their behaviour, you have to accept this and choose methods that will actually apply to them.
Our sexuality is generally something that's handed to us without any choice on our part. These people whom you're demonizing have been handed a very problematic sexuality, but in all other ways they're very much what you'd consider normal people leading normal lives. Sure, some of them might be murderous crack-fiends; about the same percentage of them as of people as a whole. Some others of them will be brilliant neurosurgeons who spend their careers saving others' lives; again, about the same percentage as of anyone else.
This assertion that anyone with any interest in child porn is doomed to commit "a more serious crime" later is certainly bunk. This is the worst kind of justification for irrational punishment: "even if he hadn't done anything bad yet, he would have at some point, I'm sure."
(Another great recent example of this type of failure was President Bush labelling anyone who acts against the US as "evil". "That's right folks, they're not human beings who are making choices that we'd like to change because of societal and economic factors! They're just pure unadulterated evil, which handily gets us out of having to do the hard work of actually understanding those societal and economic factors and addressing them directly!")