Court Determines That Downloading Porn Qualifies As Making Porn

from the stretching-the-law dept

Child pornography is obviously a subject that gets a strong negative reaction from most people -- as it should. However, it gets a little worrisome when that reaction clouds legal judgment. We've had stories in the past of child porn busts based on very bad info, and now Jim submits a story about an appeals court in Michigan that has decided that downloading and putting child porn on a CD is "making" it under the law. The guy in question clearly had child porn, and should be punished accordingly -- but the question is whether he should be charged with "possession" or "making" it. Obviously, making it gets you more stringent penalties. However, the court has decided that the guy who downloaded it and burned it to a CD has, under its understanding, "made" the pornography. The folks over at Slashdot have quite a discussion going on this as well. While this case is likely to go up to the state Supreme Court before it's finally decided, it raises some questions for other, non-child porn, content as well. For example, with just regular movies and music, it could change the type of punishment the entertainment industry could go after for anyone caught burning content to a CD or DVD -- or even just moving content to an iPod.

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  • identicon
    Eeek Freek, 30 Jan 2006 @ 2:44am

    Downloading qualifies as making?

    Well, if copying a movie to a CD is regarded as "making it", then there'll be a lot of movie-makers out there. The assorted movie industry awards events are going to have to wade through an enormous amount of material in order to come up with a short-list of nominees, and the chances are we will never have heard of the winners!

    Not only that, but all of these movie-makers will, presumably, have copyright on what they have 'made', and therefore be in a position to sue other makers of similar content (including the big media corps) for breach?

    What a fiasco!

    ---

    Child pornography is obviously a subject that gets a strong negative reaction from most people -- as it should. However, it gets a little worrisome when that reaction clouds legal judgment. We've had stories in the past of child porn busts based on very bad info, and now Jim submits a story about an appeals court in Michigan that has decided that downloading and putting child porn on a CD is "making" it under the law. The guy in question clearly had child porn, and should be punished accordingly -- but the question is whether he should be charged with "possession" or "making" it. Obviously, making it gets you more stringent penalties. However, the court has decided that the guy who downloaded it and burned it to a CD has, under its understanding, "made" the pornography. The folks over at Slashdot have quite a discussion going on this as well. While this case is likely to go up to the state Supreme Court before it's finally decided, it raises some questions for other, non-child porn, content as well. For example, with just regular movies and music, it could change the type of punishment the entertainment industry could go after for anyone caught burning content to a CD or DVD -- or even just moving content to an iPod.

    reply to this | link to this | view in chronology ]

    • identicon
      sarah white, 30 Jan 2006 @ 4:53am

      Re: Downloading qualifies as making?

      What happens to the rest of the states when it comes to this law?I live in Ohio and I would think that anyone with a computer or ipod would get in deep trouble.America is in for alot of laws to be broken when it comes to this.

      Oh Brother!

      reply to this | link to this | view in chronology ]

  • identicon
    Mark, 30 Jan 2006 @ 2:55am

    No Subject Given

    I wouldn't worry too much about some strange twist of logic spreading to other situations too soon. Too many of these characters in black robes are either routinely overturned by a higher court, or if the judicial system seems hell-bent on doing so, when these inane decisions are applied elsewhere, suddenly the "unintended consequences" become obvious (the old legal shovel to the forehead effect) and the pendulum swings back toward a previous semblance of reason. It isn't just TV viewers and voters that have short memories,or the ability to rationalize away recorded history/case law.

    reply to this | link to this | view in chronology ]

  • identicon
    Matt Ward, 30 Jan 2006 @ 3:51am

    No Subject Given

    It's a bit of a stretch to say that this applies to pornography in general as the title suggests; the law deals with pornography and child pornography very differently, so therefore its likely that whilst applying this decision to legal pornography may seem rather silly, it may make sense in this situation as the law considers it a unique situation to pornography itself. I wouldn't worry too much, at least for now, at this being applied to movies/music etc.

    reply to this | link to this | view in chronology ]

    • identicon
      CloakedMirror, 30 Jan 2006 @ 5:32am

      Re: No Subject Given

      I believe that you may not understand the gravity of what is being said here. It is not a case of whether the pornography was involving children, but is about the person being prosecuted for a crime where the wording of the law is being misconstrued.

      When one uses the term 'make/makes/making' it is traditionally considered to imply the original manufacturing process. However, in this particular case the judge(s) seem to have concluded that transferring content is tantamount to manufacturing the content.

      To fix the situation, there should be different charges for the manufacture (making), the distribution (trafficking), and the possession of the illegal content. This provides a measured way of increasing the penalties, without charging someone with a crime he/she did not commit.

      reply to this | link to this | view in chronology ]

  • identicon
    CDave, 30 Jan 2006 @ 5:08am

    Why not just stiffen up penalties?

    Really, if people like this should spend more time in jail for a crime then change the law to increase the sentencing time for this crime. It is just as simple as that. Do not charge a guy for crime he did not commit no matter how unfavorable his deed might be, this will only be used as precedents in other cause that might be even more of a bogus claim.

    Just off the top of my head I could see this being used to charge the designers of P2P networks as contributors in Child Porn Rings. Or copying CD you own to use out side the house as distribution.

    reply to this | link to this | view in chronology ]

  • identicon
    m4rcus, 30 Jan 2006 @ 7:36am

    The article says BURNING is illegal, not DOWNLOADI

    If you read the article, you'll see that the court DID NOT equate downloading porn with making porn. It was the act of burning the material to a physical medium which did not previously exist. He burned CDs of kiddie porn, that's his crime. Techdirt, you should leave the bias at the door and stop influencing your stories with opinion and misinformation.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Jan 2006 @ 8:13am

      Re: The article says BURNING is illegal, not DOWNL

      and maybe you should read Techdirts story closer yourself. he clearly states "downloading child porn AND BURNING IT TO A CD". the point is if I rip a copy of a CD I own, under this interpatation, I am "making" it.

      reply to this | link to this | view in chronology ]

    • identicon
      Nathan, 30 Jan 2006 @ 10:28am

      Re: The article says BURNING is illegal, not DOWNL

      Arguably writing the data to the hard drive is just as much making something as a burning it to a CD was.

      reply to this | link to this | view in chronology ]

  • identicon
    Michael, 30 Jan 2006 @ 9:42am

    No Subject Given

    I think this is a huge issue... one of the largest I've seen in a while, and focuses on the very clear problem of applying thousands of years of carefully evolved principles of governance to the new digital age.

    I fear for the future of the open Internet, and wonder if we're headed toward over-regulation and mis-application strangling the Internet into just another corporate tool.

    I'd like to look back fondly at this time and say proudly "I was there for the birth of the Internet." However, it might be that we of this era cringe at the mention of the word, and die in shame for the sins of our time.

    reply to this | link to this | view in chronology ]

  • identicon
    CUrob, 30 Jan 2006 @ 9:48am

    No Subject Given

    If this scum bag downloaded it he should be punished accordingly. If he downloaded it, burned it, and repackaged it with the intent to distribute, then he should be charged with "making" it. He would be creating a new "product" through repackaging it.

    My $0.002

    reply to this | link to this | view in chronology ]

  • identicon
    Ben McNelly, 30 Jan 2006 @ 11:54am

    Dealing....

    Think of it this way. Donloading Child porn and getting cought is like getting busted for possesion of drugs. A far different penalty than if your cought trying to sell or distribute drugs. So, making it for re-distribution is the same thing as bying the drugs and re-selling them. You just went from user to dealer. SURE, he may not have filmed it or taken the pictures or touched the kids, BUT he was exploiting thier abuse, thus aiding in the process. there is not a lesser evil there. Although I agre with this statement: "Arguably writing the data to the hard drive is just as much making something as a burning it to a CD was." - it is a streach to say that downloading it is also "supporting" the industry in a way such as to encourage the eventual abuse and reabuse of children to satisfy thier future downloads. I wish it wasnt a streach and we could fry them just for downloading it, but if ONE person looses thier civil rights we all do. Child rapest, terrorist, petty thief... It doesent matter. This country was founded on Humans (even barely there ones) have rights and they are not limited despite race, creed or religion. Limit one, and the whole thing fails. We have to treat people fairly, even in regards to the most hanus of crimes.
    Or we could just go BDS on them
    "In nomine patri, et filius, spiritus sancti"
    Muhahahahaa.....

    reply to this | link to this | view in chronology ]

  • identicon
    ?, 30 Jan 2006 @ 11:20pm

    I just produced my first Metallica album!

    And since I'm the producer, I'm going to allow it to be distributed online!

    woohoo!

    reply to this | link to this | view in chronology ]


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