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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!
any more than we already do... provided we don't burn our illicit wares to CD or DVD.
No doubt those with iPods and other portable media devices with nonvolatile and erasable memory are safe from being liable under this ruling.
Help Brendan pay off his student loans
I didn't know I was making music all these years.
End transmission.
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.
But your Honour... I didn't copy these Britney Spears albums, I made them!
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?
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"
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.
This is a somewhat scary decision, as much as I like the nailing Pedophile's balls to walls. For example, that case in Vermont that made the news about the judge giving the guy 60 days, I'd have given him 40 years.
As for point three, I believe that that the law, at least about totally generated art, was struck down. It doesn't matter about the 'computer', it's the whole no minors being involved.
Then again, there's the whole 'looking at it on a screen might intice you into doing it for real' thing.
Of course, being at work, I'm not exactly going to search wide and far for it.
I don't read AC A human right
War isn't about who's right. It's about who's left.
'looking at it on a screen might intice you into doing it for real' thing.
The supreme court struck down that line of reasoning when it struck down the ban on "simulated child porn".
Besides, if you follow that reasoning to its logical conclusion, you better start pulling about half the movies at the rental store off the shelves, since most depict illegal acts of some sort.
I've had enough abrasive sigs. Kittens are cute and fuzzy.
There was a case a few years ago here in Australia, where a guy accidentally followed a link to a child porn site, was disgusted at what he saw, and reported it to the police. The police took his report as a 'confession' to the crime of downloading child porn.
Never heard the result of the court case, but I'd like to think the court had a bit more sense than the police.
Quidquid Latine dictum sit, altum videtur (anything said in Latin sounds important)
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
If this court decision is the final say and starts a chain reaction in court decisions everywhere, then I'm going to sue RIAA and MPA for every cent they have. Because, technically according to the decision of this court, all 3000 mp3's I've burned and 250 movies (give or take) are new creations that I created that didn't exist before, and I had a hand in "making" them. So I want my damned money : recording fees, sales percentages, box office royalties, rental and DVD royalties. With interest. /. about us making it illegal to share your holodeck programs.
Seriously, I don't condone child porn in any way, shape, or form. But this ruling is a rediculous scare tactic, created by old, wrinkled retards who still think it's 1946 and that LCD and iPod are some kind of illegal drugs us punk kids are taking.
That has been and always will be the problem with court systems. They are generally full of old, outdated, disconnected duesche bags who go by a world view that is 50 years outdated. Thus we have stupid judgements, asanine laws, and the continued existence of paradoxical things like RIAA. Our generation (20's and 30's) will be these people in another 30 years or so, which means that in 2035, we will finally legalize file sharing and what not, but our children will be writing the same kind of rants on
Halitosis - (n.) Halle Berry's Camel Toe.
Regarding the counts related to the CD-Rs, the prosecutor argued that MCL 750.145c(2)
encompassed activity where an individual arranges for, produces, makes, or finances child
sexually abusive material, and when defendant took the blank CD-Rs and burned images on
them, he clearly created child sexually abusive material. The prosecutor noted that the statute
defines "child sexually abusive material" as including any reproduction, copy, or print of a
photograph depicting a child engaged in a sexual act. The prosecutor argued that, therefore, by
copying, reproducing, or burning the images onto a CD-R, defendant "made" or "produced"
child sexually abusive material.
Of course by reproducing the material, he knowingly became part of the chain, and therefore also part of the abuse.
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'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.
If he burned for backup (meaning only one or two copies and he kept the CDs), then he's obviously not a producer or distributor. If he burned to give to others, then it would make sense to say he's "distributinng", if not "producing." Just looking at the definition of the word "make" is simply stupid when it comes to digital data.
Irrelevant, anyway. Child porn is a non-issue. Child abuse is another matter. Come up with a program to stop child abuse, you don't have a child porn issue any more.
Richard Steven Hack - This sig is TOO GODDAMN SHORT TO DO ANYTHING USEFUL WITH! MORONS!
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.
Using a text editor of your choice, write the following in a file:
"LOVE"
save, and burn to a CD-R
You can now say you legally made love with your computer!
If you read the court decision, it says he had a video camera concealed in his shower to video tape people including foreign exchange students, one of which did testify at the trial, without their knowledge.
If they were underage at the time, this sounds exactly like my definition of making child pornography. While I agree that there should be different degrees of punishment for different degrees of a crime and that allowing an electronic crime to be raised to the next degree by choice of storage media is a dangerous precedent to set, this guy sounds guilty as charged to me.
~Ben
I heard the same kind of thing when some guys robbed a jewelry store a couple years back. Not only did they get charged with robbing the place, but with wearing a disguise (ski mask) while robbing a place. That charge can only exist in order to lay more charges on someone who you have already charged with commiting a crime. Wearing a ski mask is not a crime, but it is when you rob someone. So you have to be convicted of robbing someone to be convicted of wearing that ski mask. That's 2 charges for 1 act. It would be like having laws against murduring someone while wearing pants. If you wore pants when you murdered them, you'd get an extra 5 years.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
There is nothing in a Sears catalog that somebody doesn't want to sleep with.
"Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?" - Patrick Henry
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
The last time I was called for jury duty, the case involved the following scenario:
A guy gets pulled over for speeding; I don't remember the numbers but he wasn't speeding by that much. It starts out as a routine traffic stop. For whatever reason, the cop decides to search his car. The cop finds an unregistered handgun in the console, and arrests the guy.
In a nutshell, dude had a gun that isn't registered. The list of charges went something like this:
Unlawful possession of a firearm
Unlawful possession of a firearm by a convicted felon
Possession of an unregistered firearm
Possession of an unregistered firearm by a convicted felon
Possession of an unregistered firearm in a motor vehicle
Carrying a concealed firearm without a permit
Carrying a concealed firearm by a convicted felon
Carrying a concealed firearm in a motor vehicle without a permit
(Oddly enough, the traffic violation was never pursued)
There were like 10 charges for essentially the same crime - having an unregistered gun in his car. The fact that he had a prior felony conviction pretty much doubled the charges, as each offense was seconded as the same offense "by a convicted felon." What bothers me, very deep down, is that they didn't just charge him with having an unregistered gun in his car. They charged him with having an unregistered gun, with having it in his car, with carrying it, with carrying it in his car, ad nauseum.
Why is there a law against "carrying" the firearm in your car if there's already a law against "possessing" the firearm in your car? Why was he charged with "carrying" when the gun was in his console, and not on his person? And why does carrying or possessing the gun in your car warrant charges on top of carrying or possessing it, period?
It's just insane. There ought to be a "greatest common denominator" law that says if you get charged with multiple things, the jury can only find you guilty of the single most severe charge they believe you are guilty of.
"BSD: Free as in speech. Linux: Free as in beer. Windows 10: Free as in herpes." --Man On Pink Corner in #52607549.
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!")
I live in southern Ohio, and we've had an incident from the other side of this argument.
Basically, 3 college kids came to a car show that had a lot of "adult" activities going on (Mardi Gras type: drinking, girls lifting their tops to show off, etc.) The college kids (from North Carolina, I believe) took some pictures, went back to school, and posted some "what we did on our trip" photos on a web-site. As far as anyone knows (and everyone has stated) there was absolutely no interaction between the college students and the girls aside from the flash of the skin and the flash of the camera.
Meanwhile, the show had incensed so many of the local residents ("buckle of the bible belt" is particularly apt around here) that they wanted to prevent it from ever happening again. One of the folks search for photos of the event, found a picture of a 17-year local girl who was flashing the camera, and pushed to local county prosecutor into filing child pornography charges against the college kids.
The kids were indicted, arrested, extradited from North Carolina to Ohio, and now face hard prison time and being branded as sexual predators for life...all because they took photos of girls showing their goodies.
In my opinion, child pornography is a horrible thing, and anyone who abuses children should be tied to a table alone with the kid/parents and a rack of knives. However, it's just as much of an abuse to subvert the law and ruin multiple lives (the kids, their parents, their friends) to forward your own moral agenda.
The show was called "Cruise Fest", the county is the Scioto County, Ohio, and the website for the clerk of courts (and therefore the case information) is located at Scioto County clerk of court.
When I find the actual case, I'll post it here.
Never confuse movement with action. --Hemingway
The real world ain't black and white. It's ridiculous to claim that, say, Norway is a terrorist-supporter simply because the Norwegians thougth other actions than outrigth invation was more apropriate for Iraq. I *hope* that not even Bush really means that.
In real life, we're friends. Friends sometimes disagree. Sometimes you even tell a friend that some idea of his is, in your opinion, silly, stupid or worse. That doesn't make you a enemy. On the contrary.
It's similar with child-porn. Everyone wants to end abuses of children. That's not the issue. The issue is that the world ain't black and white.
In lots of countries, for example, you can be put behind bars for *years* for, for example, posessing a video of a 16 year old having sex. In the same country where actually *having* sex with the same 16-year old is fully legal. (that's the case for Norway for example, because age of consent is 16, but "child-porn" is any porn with under-18s.)
Or worse yet: For posessing pictures of a person who is on the pictures dressed up as/behaves like being 15 years old, while *actually* being proven to be 18 years old. (this is so because "child-porn" is defined as being, *OR* appearing to be under 18)
Or even worse: I've got letters, written by my girlfriend at the time (Hi Marianne!) when we where *both* 16 that would undoubtedly qualify as porn, and thus child-porn. Technically we can *both* be convicted of posessing child-porn, unless we burn all the old letters, simply for posessing letters sometimes describing what we where (fully legally!) doing to eachothers.
Think I can't top this ? How about imprisoning for *years* the 15-year old who writes down some of those thougths and ideas that *every* healthy person of that age has ? The law makes no distinction if the porn is purely fictious (as in your daydreams about the girl in your class) or involves *actual* sexual acts. The law also makes no difference if you yourself are 15 or if you're 50. There's a name for say a male that is 15 year old and has sexual fantasies about girls. The word is: normal.
"Punish everyone strictly" would mean giving these people, and many more, a multi-year prisonterm. If that's your idea of a fair justice-system, then I'm glad you're not voting in my country.