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Court Rules Burning Porn = Making Porn 887

Posted by Zonk
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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Court Rules Burning Porn = Making Porn

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  • So (Score:5, Insightful)

    by tsa (15680) on Saturday January 28, 2006 @05:42PM (#14589741) Homepage
    If I understand this correclty I am an artist when I burn the music I illegally downloaded?
    • Re:So (Score:4, Insightful)

      by imoou (949576) on Saturday January 28, 2006 @05:44PM (#14589764) Homepage
      Making != Creating, so you may be a music producer if you burn those music.
    • Re:So (Score:5, Insightful)

      by Anonymous Coward on Saturday January 28, 2006 @06:00PM (#14589872)
      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 (Score:5, Interesting)

        by Anonymous Coward on Saturday January 28, 2006 @08:11PM (#14590664)
        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.
        • Why? (Score:5, Insightful)

          by missing000 (602285) on Saturday January 28, 2006 @09:10PM (#14590926)
          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? (Score:3, Interesting)

            by be-fan (61476)
            Theoretically, the justice system in this country is based on justice, not on prevention. That's why we have a principle that says punishments should fit the crime, and don't just subscribe the death penalty for everything.

            Consider adultry or fornication. In most places, its a minor offense, punishable by a fine. We could be like Afghanistan, and punish it by stoning. That is the most effective way of deterring people from committing the crime, and indeed has desireable social ramifications (repressive Musl
            • Re:Why? (Score:3, Insightful)

              by alexo (9335)

              > Theoretically, the justice system in this country is based on justice

              Forgive my interruption but you do not have a justice system.
              You have a legal system.

              When innocence or guilt (and the nature and severity of the punishment) is often determined by the quality of the legal representation that one can afford, "justice" does not enter the equation.
          • Re:Why? (Score:5, Insightful)

            by Eol1 (208982) on Saturday January 28, 2006 @10:23PM (#14591249) Homepage Journal
            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:Why? (Score:5, Informative)

              by Serzen (675979) on Sunday January 29, 2006 @02:00AM (#14592011)
              Your points are interesting, but not entirely true in all cases.

              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.

          • Kill them all (Score:4, Insightful)

            by cgenman (325138) on Sunday January 29, 2006 @03:59AM (#14592297) Homepage
            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.

          • Re:Why? (Score:3, Insightful)

            by KilobyteKnight (91023)

            In this country we have a judicial system that is based on the prevention of crime, not retribution.

            You didn't specify what country you are in, but if you are in the US you are mistaken. Laws can not prevent crime even if that was their intent. A police officer can not arrest someone for thinking about committing a crime. They have to wait until some illegal activity has already occured.

            There may be some argument to be made that the threat of punishment is a deterrant. The vast majority of criminals eit

        • Re:So (Score:5, Informative)

          by Lumpy (12016) on Sunday January 29, 2006 @01:26AM (#14591908) Homepage
          you know nothing of the case. I do I am from Muskegon,MI and the sicko lived with my ex-stepchildren that I still dearly love and care for.

          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?

    • by sopuli (459663) on Saturday January 28, 2006 @06:11PM (#14589939)
      The prosecutor requested the district court to bind defendant over on all counts.
      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.

      • No, he didn't (Score:5, Insightful)

        by phorm (591458) on Saturday January 28, 2006 @06:15PM (#14589964) Journal
        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.
      • The question here (Score:5, Insightful)

        by commodoresloat (172735) on Saturday January 28, 2006 @06:28PM (#14590055)
        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 problem is... (Score:3, Insightful)

        by C10H14N2 (640033)
        The way criminal prosecution works is that the widest possible number of charges are filed in order to get the severest compounding of sentences. No matter how repugnant you may find a person or their acts, this practice of trumping up multiple charges for single offenses is dangerous.

        I recently encountered a case where a 24yo claimed that she had been raped by a then friend of hers after they both were out getting completely drunk. He was convicted on separate charges for, basically, every place he stuck i
        • Re:the problem is... (Score:5, Interesting)

          by CastrTroy (595695) on Sunday January 29, 2006 @12:32AM (#14591743) Homepage
          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.
          • Re:the problem is... (Score:4, Interesting)

            by Motherfucking Shit (636021) on Sunday January 29, 2006 @07:57AM (#14592687) Journal
            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.
            I'm glad I'm not the only one who thinks this is ridiculous. The impetus behind this practice is obvious; they charge you with 10 things, knowing that they can't necessarily prove any of them beyond a reasonable doubt, but hoping that one of the charges will stick. The problem is that many times, all of them stick, and some poor schmuck goes away for decades over a simple crime.

            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 ...etc

            (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.
            • Re:the problem is... (Score:3, Informative)

              by SilverspurG (844751) *
              Did you pursue jury nullification, or did the judge strictly inform you that he would dismiss you if you did?

              Jury nullification is a serious right/authority of the jury. The fact that many judges will underhandedly remove potential nullifying jurors is nothing short of, in itself, felonious.
    • Re:So (Score:5, Insightful)

      by SamSim (630795) on Saturday January 28, 2006 @06:26PM (#14590042) Homepage Journal

      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?

  • by DaHat (247651) on Saturday January 28, 2006 @05:43PM (#14589752) Homepage
    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.
  • Wow (Score:5, Funny)

    by evil agent (918566) on Saturday January 28, 2006 @05:43PM (#14589753)
    I didn't know I was making music all these years.
  • by sheldon (2322) on Saturday January 28, 2006 @05:43PM (#14589755)
    Please change the title.

    Child Porn is classified completely differently from Adult Porn, for good reason.
    • by Anonymous Coward
      >Child Porn is classified completely differently from Adult Porn, for good reason.

      Yeah, because we all know that someone that's only a mere 17 years 11 months 29 days old is soooooo much younger and naive and in need of protection than someone that's lived to the ripe age of 18 years; however, that's the dividing line between child and adult in the eyes of the law.
      • What would you prefer, that anyone under 16 (for example) is a child, anyone over 18 is an adult, and you're at the judge's mercy if the picture is of a 16 to 18-year-old as to whether they're a child or an adult? Should we roll a d20+age to see if they're a child?

        There's no better option for a law than setting a sharp cutoff, and 18 seems to be working well.
  • Three points (Score:5, Insightful)

    by John Nowak (872479) on Saturday January 28, 2006 @05:45PM (#14589769)
    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.
    • by Firethorn (177587) on Saturday January 28, 2006 @05:53PM (#14589828) Homepage Journal
      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.
      • '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.
    • by sglider (648795) on Saturday January 28, 2006 @05:53PM (#14589834) Homepage Journal
      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.
      • by Mr2001 (90979) on Saturday January 28, 2006 @06:54PM (#14590240) Homepage Journal
        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.
    • Re:Three points (Score:5, Insightful)

      by Anthony Liguori (820979) on Saturday January 28, 2006 @05:54PM (#14589840) Homepage
      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.
      • Re:Three points (Score:5, Interesting)

        by porcupine8 (816071) on Saturday January 28, 2006 @06:07PM (#14589914) Journal
        The reasoning behind computer-generated child porn is #1. It creates a demand...

        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.

    • Re:Three points (Score:5, Informative)

      by Savantissimo (893682) * on Saturday January 28, 2006 @05:57PM (#14589854) Journal
      But he was allegedly producing porn using unconsenting girls. From the google cache of an MSNBC story:
      (Muskegon County, August 23, 2005, 7:36 p.m.) The child pornography trial of an Egelston Township treasurer has been adjourned, pending an appeal.

      Brian Hill was arrested late last year on charges of possession and manufacturing of child pornography.

      Police were tipped off when a friend found a videotape that Hill had made of foreign exchange students who were staying with him.

      Police say Hill set up a camera in the bathroom at his home.

      In a Muskegon County courtroom on Tuesday, Hill's attorney appealed the manufacturing of child pornography charge.


      If true, he definitely crossed the line.
    • Re:Three points (Score:5, Informative)

      by GigsVT (208848) on Saturday January 28, 2006 @05:58PM (#14589862) Journal
      For example, it is illegal to create computer-generated child pornography

      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.
    • Re:Three points (Score:5, Interesting)

      by abbamouse (469716) on Saturday January 28, 2006 @05:59PM (#14589866) Homepage
      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.
    • At some point though, it sounds like he was supporting the production of child pornography, and that is what they should have nailed him for. Instead, they've come up with this burning=making precedent, which could be misused in so many other cases it's scary. From the linked article though, I catch very little about burning and a lot about downloading... the PDF goes into more about the burning.

      Now, there are a few points:

      a) He got the pictures from a Russian website. From my experience with porn websi
    • by zoloto (586738) *
      Karma can go to hell for now, so I'll bite.

      1) Correct. Copying child porn is not the same as creating new child porn. But the child is still victimized. True, even if physically done only once to the child their victimization is celebrated, condoned, accepted in the minds of individuals repeatedly. Fantasizing over a child in a sexual (explicit or other) way does its damage the first time, and every time after that is reinforcing such acts into the mind, each as damage reinforcing as the next.

      2) Your questi
    • Re:Three points (Score:3, Insightful)

      by Yartrebo (690383)
      I second that. Heck, even a good fraction of underage sex (no less porn) is entirely or mostly benign. Humans are wired with a sex drive from around age 14 or so (puberty). I can see no reason for sex between two sexually mature people to be any different because one (or both) is/are under 18.

      Even when that's not the case, most of the real tradgedies are either traditional rapes, or the police themselves. The latter tends to be particularly true if the kids involved respect the adults involved.

      Regarding com
  • Make? (Score:5, Funny)

    by Gunark (227527) on Saturday January 28, 2006 @05:46PM (#14589779)
    But your Honour... I didn't copy these Britney Spears albums, I made them!
  • by smallfeet (609452) on Saturday January 28, 2006 @05:47PM (#14589786) Journal
    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?
    • It seems to me this is probably based off of the same idea with books.

      If I copy a book verbatim, it is not my book. It is the original author's.

      But what if I take various short stores that I like from all over and put it in a book (we'll assume I got permission). I have now made a new book that didn't exist before.

      While I didn't produce any of the content, I did produce a new book. This is my understanding of the decision.

      Of course, in classic /. style, I have not read the decision to see if that is the

  • by nicolaiplum (169077) on Saturday January 28, 2006 @05:47PM (#14589788)
    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.
    • Of course, the UK has a long-standing tradition of this sort of legal shenanigan.

      At one time, they didn't make much of a distinction between stealing an entire bakery and stealing a single loaf of bread; in either case they turned you into an Australian...

      And now with the anti-terrorism laws, its illegal to possess any information that *might* be useful to a terrorist. I guess they'd turn you into a Cuban for that (ie Guantanamo).

      Child porn (of 16 year old girls) vs child porn (of 8 year old girls)?
      What wil
    • There is an article from FIPR [cam.ac.uk] which discusses this case, and some problems it introduces.
  • Dictionary? (Score:5, Insightful)

    by venicebeach (702856) on Saturday January 28, 2006 @05:49PM (#14589804) Homepage Journal
    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?

    • Re:Dictionary? (Score:3, Informative)

      by abbamouse (469716)
      Actually, it is quite common to see judges use a "plain meaning" standard in which they look up the words of a law in a dictionary (not necessarily a law dictionary, either) and see what it says. Indeed, this textual approach seems to be the leading competitor to originalism among conservative judges. Believe it or not, Merriam-Webster does show up in the occasional opinion.
    • by joNDoty (774185)
      Is it just me or does consulting a dictionary sound like a really poor way of deciding an issue of law?

      I agree. I just burned a photo CD of an old Phish concert. Now I could be arrested on multiple counts of making, possessing, and distributing marijuana!?
    • Re:Dictionary? (Score:3, Insightful)

      Especially true when he could have consulted Black's Law Dictionary, or any court case in copyright law or obscenity law dealing with the production of new works by copying old ones; IANAL but I am sure there are some precedents to look at. Certainly he could have offered a useful interpretation of the legislature's intent when they used that word, which quite obviously did not include practices that would include photocopying someone else's work and sticking the copies in a desk drawer.
  • by ShyGuy91284 (701108) on Saturday January 28, 2006 @05:53PM (#14589826)
    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.
  • by The Famous Druid (89404) on Saturday January 28, 2006 @06:03PM (#14589886)
    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.

  • by panxerox (575545) * on Saturday January 28, 2006 @06:04PM (#14589897)
    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.
  • by no_pets (881013) on Saturday January 28, 2006 @06:07PM (#14589915)
    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.
  • by blackholepcs (773728) on Saturday January 28, 2006 @06:11PM (#14589936) Journal
    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.
    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 /. about us making it illegal to share your holodeck programs.
  • by TrumpetPower! (190615) <ben@trumpetpower.com> on Saturday January 28, 2006 @06:17PM (#14589983) Homepage

    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&

  • by spiritraveller (641174) on Saturday January 28, 2006 @06:25PM (#14590037)
    "Defendant was charged with . . . multiple counts of arranging for, producing, making, or financing child sexually abusive material, MCL 750.145c(2)."

    So the law says producing OR making. Therefore, they are not the same thing. Producing is what we think of when we talk about taking pictures or hiring actors and cameramen. So "making" has to mean something else.

    The question is what does it mean, and is the statute specific enough to hold someone responsible for committing acts that fall within that meaning?
  • Burning (Score:3, Insightful)

    by knipknap (769880) on Saturday January 28, 2006 @06:27PM (#14590052) Homepage
    It took me more than 3 minutes to understand why "burning" would be the same as "making" stuff.

    [...] after downloading and burning pornographic pictures from the Internet [...]

    Right, so he downloaded it, printed it and later obviously showed regret when he burned the pictures. Why would that be worse than keeping them...? Oooh, *that* burning.
  • The law is clear (Score:3, Informative)

    by mark-t (151149) <marktNO@SPAMlynx.bc.ca> on Saturday January 28, 2006 @06:38PM (#14590110) Journal
    Possession, mere POSSESSION, of child porn is illegal... it doesn't matter how you got it, or where you got it from... if you are caught with it, unless you can show fairly convincingly that you had no reasonable way to know it was in your posession in the first place (eg, it was actually amongst a significant amount of other things, not all of which you could be directly accountable for, such as content downloaded by a software trojan that you didn't know about before), then you can and will be charged and sentenced to whatever degree is permissable by law.

    However... burning a CD with the content, because it is a conscious and deliberate act, pretty much negates any possibility that a person could try to appeal to that line of reasoning as a defense if one was caught with such content.

    Although I agree with some other posters that say it was stupid to associate burning a CD with child porn on it with creating or producing it.

  • by ShyGuy91284 (701108) on Saturday January 28, 2006 @06:41PM (#14590141)
    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.
  • the scary thing is (Score:5, Insightful)

    by extra the woos (601736) on Saturday January 28, 2006 @06:43PM (#14590152)
    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.
  • Is it just me? (Score:5, Interesting)

    by TallMatthew (919136) on Saturday January 28, 2006 @06:47PM (#14590187)
    Or has sex with underage boys/girls become the most vilified act in American culture?

    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:3, Informative)

      by Anonymous Coward
      >> Is it just me? or has sex with underage boys/girls become the most
      >> vilified act in American culture?

      Actually no, sex with minors OUTSIDE of marriage is.

      Many US states cheerfully allow minors under the age of 15 to marry in defiance
      of UN High Commissioner for Human Rights, General Assembly resolution 2018,
      which states:

      "Member States shall take legislative action to specify a minimum age for marriage, which in any case
      shall not be less than fifteen years of age; no marriage shall be legally e
    • Re:Is it just me? (Score:3, Insightful)

      by briansmith (316996)
      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

      If you are sexually abused as a child, the chances that you end up ALSO experiencing any or all of the above problems increase considerable due to the incredible psychological trauma that comes with sexual abuse.

      There are many, many people well above 18 years old that cannot handle the psychologica

    • Re:Is it just me? (Score:5, Insightful)

      by Xeth (614132) on Saturday January 28, 2006 @09:13PM (#14590941) Journal

      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.

  • by darkain (749283) on Saturday January 28, 2006 @06:57PM (#14590260) Homepage
    It is now illegal for me to browse the slashdot web site, because in order to view it, my browser must "make" a temporary file on my local hard disc of the copyrighted slashdot logo. I hereby turn myself in for copyright violation.
  • by Master of Transhuman (597628) on Saturday January 28, 2006 @08:11PM (#14590665) Homepage
    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.

  • by digitalgimpus (468277) on Saturday January 28, 2006 @11:06PM (#14591460) Homepage
    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!
  • Wait... (Score:3, Interesting)

    by nukeade (583009) <serpent11.hotmail@com> on Saturday January 28, 2006 @11:56PM (#14591644) Homepage
    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
  • ORWELL (Score:3, Interesting)

    by drDugan (219551) on Sunday January 29, 2006 @03:51AM (#14592281) Homepage
    so a man was prosecuted for copying an IMAGE

    I am very much against porn, ESPECIALLY child pron, where lives are destroyed by the process of "making" it

    however, images are just information, and this ruling is now squarely in the realm of a thought crime: having these thoughts == burning these bits to a disk. the act of a human moving bits from one medium to another should never be a crime (by itself).

Money can't buy love, but it improves your bargaining position. -- Christopher Marlowe

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