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Court Rules Burning Porn = Making Porn
Posted by
Zonk
on Sat Jan 28, 2006 04:40 PM
from the that's-kind-of-a-stretch dept.
from the that's-kind-of-a-stretch dept.
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?"
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So (Score:5, Insightful)
Re:So (Score:4, Insightful)
Parent
Re:So (Score:5, Funny)
Parent
Re:So (Score:5, Funny)
Parent
Re:So (Score:5, Insightful)
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!
Parent
Re:So (Score:5, Interesting)
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.
Parent
Why? (Score:5, Insightful)
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.
Parent
Re:Why? (Score:5, Insightful)
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.
Parent
Re:Why? (Score:5, Informative)
Committing a murder during the course of a felony (the rape, in this case)--in some states--automatically bumps the murder up to 1st degree, which means, depending on where you're being tried, that you'll be looking at life without parole or the death penalty.
Similarly, if you break into someone's house and are caught, wind up killing the person who catches you and decide NOT to kill the rest of the family, and have a good lawyer, you can argue that the murder was accidental, demonstrate that you were only there for a little petty theft, you might be able to shake the 1st degree murder and work your way down to 3rd degree murder or even down to manslaughter. 20 years is certainly better than life without parole.
Not intended to be legal advice, use with caution, don't run with scissors, etc.
Parent
Re:You misunderstand the problem. (Score:5, Interesting)
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!")
Parent
Re:So (Score:5, Informative)
This is the court's way of identifying legally what he was doing. The guy was downloading all kinds of kiddie porn, no not 16-17 year olds but 5-11 year olds. and making CD's to sell and distribute. This definition that the court came up with really does fit. he was "making" child porn to sell in essence by making a product. it's like using pieces of paper and gluing them together to make a book.
Yes, the wording stinks, but this is expected in a backwater hick-town like Muskegon.
Lots of details on the case are not out in the open because the man has used some of his friends to strong arm the press in keeping things quiet. But my 21 year old stepson who discovered the porn, alerted his mother and got it all rolling is certian that a pile of 100+ cd's all labelled the same and with frome what he could tell the same content on them is certianly not "a private collection".
do you need 100+ copies of all the files you downloaded from greatbigbooboes.com?
Parent
Re:So (Score:5, Insightful)
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.
Parent
Please read the ruling instead of the /. spin (Score:5, Informative)
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.
Parent
No, he didn't (Score:5, Insightful)
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.
Parent
Activist Court (Score:5, Insightful)
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.
Parent
Re:No, he didn't (Score:5, Informative)
Drugs laws already make this distinction. Because if he burned the CD for his own use, the drug law equivilent is "Possession". If he burned the 500 or whatever number, he could be charged with "Possession with intent to distribute".
If we followed your logic, then the person who has one or two marijuana plants for their own use can be charged with Possession with intent to distribute when clearly one or otwo plants does not allow for that.
Simply burning the CD is not producing the content. It is transferring between media.
Parent
The question here (Score:5, Insightful)
Parent
Re:the problem is... (Score:5, Interesting)
Parent
Re:So (Score:5, Insightful)
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?
Parent
Why worry about the {MP|RI}AA... (Score:5, Informative)
No doubt those with iPods and other portable media devices with nonvolatile and erasable memory are safe from being liable under this ruling.
Wow (Score:5, Funny)
Uhh, it's Child Porn (Score:5, Insightful)
Child Porn is classified completely differently from Adult Porn, for good reason.
Re:Uhh, it's Child Porn (Score:5, Funny)
Parent
Re:Uhh, it's Child Porn (Score:4, Interesting)
Parent
Three points (Score:5, Insightful)
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.
Sheesh... Commenting on this is scary (Score:4, Interesting)
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.
Parent
Replying to Your 'three points'. (Score:5, Insightful)
Parent
Re:Replying to Your 'three points'. (Score:5, Insightful)
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.
Parent
Re:Replying to Your 'three points'. (Score:5, Interesting)
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
Parent
Re:Replying to Your 'three points'. (Score:4, Interesting)
Back on topic. If you get off watching porno of 8-year olds.... more power to you -- PROVIDED you didn't pay for that video, directly or not. You err by making the criminal act the viewing of the porn. If we were all punished for our fantasies, then the whole world would be in jail ... starting with the most vocal of the moral right, no doubt. The criminal act in fact is the exploitation of children, or anything that contributes to it. Downloading, watching, etc ... if it doesn't provide any gain to the producer of the video, that is a matter between you and your God. If you paid for it, then you have become part of the cycle, and I agree that you should be punished.
And everyone needs to simmer down and quit letting their emotions make their decisions for them -- the problem with this issue is what legal precedent it sets. Whether or not you think all pedophiles should burn in hell is not relevant, you should stop to consider whether this ruling might affect the way other laws are applied, and you may be the target.
Parent
Re:Three points (Score:5, Insightful)
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.
Parent
Re:Three points (Score:5, Interesting)
Please explain to me how computer-generated child porn, in which no actual child is involved, creates demand. Are people not pedophiles until they've consumed some child porn? If nobody made child porn, would we have no pedophiles who want to look at it? Perhaps it fills a demand, but how could it create demand?
You choose to act upon impulses though.
Yes. And I would MUCH rather someone act upon their impulse by viewing pretend-child-porn that involves no actual children than by finding a real kid to fondle. Which would you prefer? Until we've found a way to "cure" pedophiles of what is basically a mental illness, I don't see any reason to make it illegal for them to soothe their impulses in ways that don't harm any real children.
Parent
Re:Three points (Score:5, Informative)
If true, he definitely crossed the line.
Parent
Re:Three points (Score:5, Informative)
No, it's not.
See Ashcroft v. Free Speech Coalition
The court ruled that simulated child porn that involves no images of children and no children in its production is constitutionally protected free speech.
Parent
Re:Three points (Score:5, Interesting)
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.
Parent
Make? (Score:5, Funny)
Do I own the copyright then? (Score:4, Insightful)
Already true in the UK. (Score:5, Interesting)
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.
Dictionary? (Score:5, Insightful)
Is it just me or does consulting a dictionary sound like a really poor way of deciding an issue of law?
I fail to see the logic.... (Score:4, Insightful)
Child porn laws are very strict (Score:4, Interesting)
Never heard the result of the court case, but I'd like to think the court had a bit more sense than the police.
Real reason for this ruling (Score:5, Insightful)
Where's my money, RIAA? (Score:4, Interesting)
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
What's the difference... (Score:5, Insightful)
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&
Why not just change the law? (Score:4, Insightful)
the scary thing is (Score:5, Insightful)
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.
Is it just me? (Score:5, Interesting)
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.
Re:Is it just me? (Score:5, Insightful)
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.
Parent
Did he burn for backup or distribution? (Score:5, Interesting)
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.
here's a sick thing to do (Score:5, Funny)
"LOVE"
save, and burn to a CD-R
You can now say you legally made love with your computer!