Court Rules That Downloading = Creating

• January 29, 2006

This is stupid…

MUSKEGON, MI, United States (UPI) — A Michigan appeals court has ruled that downloadingchild pornography from the Internet can be charged as ‘making’ the material.
Making or manufacturing child pornography is a felony in Michigan with a potential sentence of 20 years in prison. The court upheld the position of the Muskegon County prosecutor in the case of former Egelston Township Treasurer Brian Hill, the Muskegon Chronicle reported.
Hill is awaiting trial. The court ruling has put his case on the docket, although the issue is likely to be decided by the state Supreme Court.
His lawyer argued that downloading pornography should be charged as possession, which carries a maximum penalty of four years.
‘It`s groundbreaking law in the area of computers and pornography,’ said prosecutor Tony Tague. ‘This decision will provide a tool to prosecutors across the state, particularly in curbing and prosecuting child pornography.’

Child pornography is bad. Awful, in fact. A scourge not all that unlike something like slavery. But be that as it may, I do not see the wisdom in bending written law to get child porn aficionados bigger sentences.
Downloading and possessing child porn is not the same thing as creating it. If I buy a VHS tape with kiddie porn on it, you would not say I created the tape. I simply obtained it and possessed it. Saying that I created it is just plain stupid. If we need bigger sentences for kiddie porn freaks then let’s get our legislators to modify the criminal code.
The big problem with this ruling is that if it is upheld it has implications far beyond kiddie porn. Consider this: You know that botlegged movie you downloaded from the internet? How would you like to be held responsible for creating the bootleg? Do you think that’s fair?
Because I don’t.

Tags: Politics

http://Array Jason

Even when we agree with the stance of an activist judge, the principle is wrong. Besides, passing stronger child porn laws through the legislature should be an easy, bi-partisan, thing.

I agree with you a hundred percent on that. It should be a bipartisan effort.

My convictions against child porn might be blinding me a bit on the reality of courts ruling from the bench, which I am against. That’s why I’m not a judge I guess.
Zsa Zsa

Rob, I think this is one of those issues that it is all in the way you phrase it? It has room for confusion… I really believe that downloading should not be considered creating though! I would put it in the catagory of possessing.
Zsa Zsa

Exactly!
http://igotthisblog.blogspot.com/ Seth Williams

I know, I was being facetious and trying to show the absurdity of such a ruling. If they want heavier penalties on child porn, I say fine–do it through the legislature.
Jason

I don’t think this is too out of line. I mean, it’s CHILD PORN! If you’re downloading it, you’re endorsing someone to take naked pictures of a child. That’s not right. I can understand where you’re coming from, you don’t want this law to spill over to the whole copyright infringement issue. But, it’s CHILD PORN! If you download, buy, or produce, you’re automatically the scum of the earth, and I don’t really see a problem with castration and death upon anyone who does that.

Unfortunatly, there is a fine line between this law and moving into illegally downloading movies and music. Lets hope all these old white men in the government don’t mess it up for us.
http://www.mpturner.net/ Michael

Nice little hair-split there. Guess they shouldn’t arrest people for using copiers to make counterfeit money either, based on this theory. Heck – its just a copy.

Sorry, when you copy child porn, you are supporting the generation of more of it and are therefore just as evil, just as guilty as the guy who made the original. You’re even inspiring creeps like him/her to go out and exploit other children. What you all are doing is playing word games to the benefit of some pretty evil people. And believe me, I am no fan of activist judges. But this is not an improbable outcome of this law.
Dave

I personally think that saying a downloaded porn movie is free speech is a stretch since if you purchased the same movie at a video store, it would be subject to the laws governing the purchase.

Possessing child pornography is not a crime. Creating child pornography is the real crime–that’s the action which usurps people’s rights.
http://www.thatedeguy.com/ Shane Ede

Another thing to look at is whether the court makes the deliniation between whether you will be charged with “creating” a copy or “creating” period. Because if they are just flat out saying that you “created” it… Then if I download a MP3 or Bootleg Movie, I am “Creating” it. Not “creating” a copy, but “creating” the movie, or music. I realize that it’s a stretch that any court would uphold it, but the deliniation needs to be made. Also, If I truly could be charged with the “creating” the movie or music, could I then turn around and sue the recording company? Technically, if I “created” it, they are selling bootleg copies of my “creation” to movie stores and consumers.
Dave

To me, owning something where there is a visible crime is almost the same as being an accomplice to a crime.

Rob has downloaded a video of Nick Berg being beheaded. Joe Blo has downloaded a video of a 16 year old having sex. Are both, just one, or neither guilty?
docdave

There may be a legal distinction that none of you have addressed yet and that is the downloaded item a commercial product or free speech item? This distinction is very important since products are subject to state laws for intrastate and federal laws for interstate. I personally think that saying a downloaded porn movie is free speech is a stretch since if you purchased the same movie at a video store, it would be subject to the laws governing the purchase.
Dave

Eneils Bailey:

That should be left up to the Michigan legislature to change possession laws for child pornograhy.

The Michigan legislature can not pass a law that’s unconstitutional. Prohibiting people from downloading pornography–child or otherwise–is an abridgement of their free speech.

Michael:

Sorry, when you copy child porn, you are supporting the generation of more of it and are therefore just as evil (…)as the guy who made the original.

That might be true.

Sorry, when you copy child porn, you are supporting the generation of more of it and are therefore (…) just as guilty as the guy who made the original.

That is certainly false.

When you lend financial support to the child pornography industry, you are probably acting immorally. (I say “probably” because I tend to look at this on a case-by-case basis, as there’s a huge moral difference between videotaping your rape of an 8-year-old and having a 17-year-old forge her birth certificate.) But have you acted illegally? Is watching an illegal action the same as committing the illegal action? (If so, then Rob is guilty of murder.)

Buying, or downloading, a tape consisting of child pornography does not harm anyone. It does not usurp anyone’s rights. It does not rape any children. It is very immoral, but it can’t be illegal–it’s constitutionally protected free speech.

Free speech means absolutely nothing if you’re not willing to defend it in the most extreme cases. Even completely ignoring the judicial activism here, we should all oppose this on free speech grounds, as we are now imprisoning people for viewing the “wrong” material, and that is just wrong.
Zsa Zsa

Possessing as well as creating Child porn is WRONG. No question about it! Creating has a different connotation than downloading though. Am I wrong?… I really think this is truely one of those issues that can confuse and get us into other problems down the road!
http://atrainwreckinmaxwell.blogspot.com/ KurtP

So, what Jason (and MN)is saying is that it’s OK to twist a law so far that it doesn’t resemble the intent as long as “it’s for the children?”

I agree that using child porn- and anything else- is endorsing and encouraging it’s spread. BUT there has to be a more appropriate law.
Dave

Exactly, 2hotel9. It’s the exact same mindset that’s caused the “War on Drugs” to do absolutely nothing to reduce the supply of drugs in America.

This is a sweeping change, the implications of which are very broad indeed.

Any time you download any video of anything on the internet, you should consider it fair game for the government to monitor it. That’s pretty broad.
http://www.thatedeguy.com/ Shane Ede

I think that everyone is forgetting that we are not talking about the legallity of child porn and snuff films, but rather the difference between a lawyer saying you created it or not. I think that everyone can agree that child porn, rape porn and snuff films are bad. But should anyone who downloads said bad things be charged the same as the person that created it? I don’t think so. Possesion of the material is one thing and should be prosecuted, but prosecuted for possesion, not creation.
Jason

Possessing child pornography is not a crime. Creating child pornography is the real crime–that’s the action which usurps people’s rights.

So, if you went to a friends house, and he said, “I have 12 thousand video tapes of people being raped and murdered”, you’d be ok with that? I mean, it’s the person doing the murdering that’s wrong, not the friend that is possessing the video tape.

To me, owning something where there is a visible crime is almost the same as being an accomplice to a crime. There should be some kind of punishment.
2Hotel9

The point here is, what will this precedent be applied to next? This is a sweeping change, the implications of which are very broad indeed. The question should be,”why is law enforcement not going full bore against the actual producers of child-porn?”, instead of focusing on end users? You can, in 5 minutes, find child-porn online. At least that is what we are all told. Are people trying to now tell us that the FBI can not find these people by following the links on the internet? Are these people so adroit at eluding detection that we can not catch them? How does this stop the production of child-porn? The focus is wrong. Go after people making child-porn and it will be far more effetive in stopping it.
http://igotthisblog.blogspot.com/ Seth Williams

Jason: I understand where you’re coming from. I’m a father, and the thought of someone getting their ya-yas from a child is extra disturbing to me.

However, my example aside, there are a couple of issues at work here. The first one is whether you want judges, in effect, legislating from the bench. Sure, you support it in this instance, but if we permit it to happen, there will someday be an instance where it cuts closer to home and you won’t support it. Take for example the court decisions about emminent domain, where the Supreme Court radically redefined “public interest” to mean forced commercial development of private property (Kelo). Better, then, to draw a line on principle, and the principle is that laws come from the legislature.

The second issue is that, if we allow judges to legislate from the bench in this fashion, there is the supreme law of unintended consequences (which my example above was intended to show). Again, better to draw a line on princple and leave the legislation to the legislature.

Even when we agree with the stance of an activist judge, the principle is wrong. Besides, passing stronger child porn laws through the legislature should be an easy, bi-partisan, thing.
Eneils Bailey

Rob,
I agree with you on this one.
Here we go again, the courts making up laws. That should be left up to the Michigan legislature to change possession laws for child pornograhy.
http://igotthisblog.blogspot.com/ Seth Williams

I understand 100% Jason. Child porn is, obviously, a very emotional issue–you have every right to be upset about it.
docdave

Shane, you are right. Saying possession is the same as creation is total bs. I doubt that this decision will stand judicial review.
http://www.wholewheatblogger.com/ Steve

Rob, your problem is that you’re making sense.

If only it were virtual child porn.
http://igotthisblog.blogspot.com/ Seth Williams

Rob, try to see this for the good news it is. Now when you down load an MP3 or a movie from the internet, you can’t be charged with breaking copyright laws. After all, downloading is creating, and you can’t steal your own creation, now can you?
http://sayanythingblog.com robport

Well…, there are two types of creating. You can create an original work or you can create an illegal, copyright-violating copy of an original work.
http://sayanythingblog.com robport

I figured that was the case, but it is hard to pick up on that stuff sometimes when all you have to go on is typed text.
http://sayanythingblog.com robport

I think the case for downloading=creating is being made by the idea that when you download something you “create” a copy of it on your hard drive that is separate from the original copy. While that is technically true, the laws against creating child porn were meant to punish the pornographers who exploit the children to produce the original copies of the porn in the first place.

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