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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: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!
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.
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.
The question here (Score:5, Insightful)
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?
Re:So (Score:5, Funny)
Re:So (Score:5, Funny)
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)
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.
Replying to Your 'three points'. (Score:5, Insightful)
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.
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.
Re:Three points (Score:5, Informative)
If true, he definitely crossed the line.
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.
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.
Make? (Score:5, Funny)
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?
Real reason for this ruling (Score:5, Insightful)
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&
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.