United Press International – Jan. 27 2006:
A Michigan appeals court has ruled that downloading child 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.
From the opinion:
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.
I’m from Michigan and I have to say that our appellate courts are very conservative. Recently the Michigan Court of Appeals determined that an accident which occurred during the bailing of hay to feed horses was not covered under a farm insurance policy as the act was not farming. Farming in the policy was defined as “the ownership, maintenance or use of premises for the production of crops, or the raising or care of livestock, including all necessary operations.” How bailing hay and feeding horses did not fit that definition is beyond me. Read that opinion here.
If someone was printing books, it would qualify, so why wouldn’t burning a CD be any different?
The Michigan case you referred to is pretty clear. The feeding was something excluded by the policy. The horses were part of his business that was not farming.
This really stands copyright law on it’s head, and will probably be thrown out because it is bad interpretation of law. If I am making something by just copying it, then it makes me the creator of the object, and gives me copyright protection. Based on that, I should be able to make copies of anything, including software, and claim that I am the maker and sell the items freely. That is wrong from every legal perspective.
I am not defending the utterly despicable act of child sexual abuse (death by defective electric chair is too good for those people), but the court is wrong in this case.
“Printing Books” is “backing up oral history”
slope. slippery. mess at bottom.
Sounds like a knee jerk reaction to the disgusting crime of child porn. Unfortunatly the reason why making child porn caries a higher jail time then just having it is because the maker usually is the one who get the child, forces them to perform and then makes a profit from it. This is not the case here. This is a case of a over jealous prosecutor looking to really make a name and example of the public official, making bad case law as a result.
gquaglia
I like your point, but disagree. This is more a case of the courts making up definitions to suit there own tastes. If burning a CD is creating, then photocopying an entire book would deprive any author of their copyright work. Concocting a drug that is an exact duplicate of an existing drug would be allowed by this reasoning.
Possessing child porn is illegal in most jurisdictions. As with many crimes, the creator or trafficker gets a heavier sentence then the ordinary possessor. In this case, the Court decided to hit him with the heavier sentence and then justify it by making up a new definition. Whether or not his sentence is deserved or not is not the issue, it is the ramifications of that decision.
The feeding was excluded probably due to the PBB fiasco back in the 70’s. To my recollection this is when high levels of PBBs were found in feed and salt blocks causing death to livestock (including horses).