PEOPLE OF MI V BRIAN LEE HILL
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED JULY 23, 2010
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 138668
BRIAN LEE HILL,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
This case presents the question whether a defendant who downloads child sexually
abusive material from the Internet and “burns” that material to a CD-R1 may be convicted
of violating MCL 750.145c(2), which provides that any person who “arranges for,
produces, makes, or finances . . . any . . . child sexually abusive material,” is guilty of a
1
CD stands for “compact disc.” A CD-R (compact disk-recordable) is a blank
compact disc that an individual can purchase and onto which pictures, movie or video
files, and various other digital images, information, and data can be “burned,” or saved
permanently, through the use of a computer. One definition of the term “burn” is “to
record data on (a compact disc).” Random House Webster’s College Dictionary (2001).
felony punishable by imprisonment for not more than 20 years or whether the defendant
may only be convicted of violating MCL 750.145c(4), which makes the knowing
possession of child sexually abusive material a felony punishable by imprisonment for
not more than 4 years.
The Court of Appeals held that a defendant, even if his intent in burning the
prohibited images to a CD-R was to retain those images for personal use, may be
convicted of the 20-year felony under MCL 750.145c(2). We respectfully disagree.
MCL 750.145c has a graduated scheme of offenses and punishments. It punishes (1)
those who are responsible for the origination of child sexually abusive material (a 20year felony), (2) those who are responsible for the distribution and promotion of the
prohibited material (a 7-year felony), and (3) those who are responsible for the knowing
possession of the prohibited material (a 4-year felony). From these three tiers of offenses
and punishments, we conclude that the Legislature did not intend the imposition of the
same maximum punishment on a person who downloads a prohibited image from the
Internet and burns it to a CD-R for personal use as on the person who is responsible in the
first instance for the creation and existence of the pornographic images of minors. The
person who is responsible for bringing the prohibited images into existence is obviously
more morally, and under the statute, more criminally, culpable than the person who
downloads an image and saves it to another medium for personal use.
We hold that when the terms “produces” and “makes” in MCL 750.145c(2) are
construed in accordance with their immediately surrounding text and with a view toward
the statute’s overall organization, including a graduated scheme of offenses and
2
punishments, a defendant may not be convicted of the 20-year felony when there is not
proof beyond a reasonable doubt that he had a criminal intent to do something other than
possess the CD-Rs for his own personal use. Just as a person who downloads a song
from the Internet and burns it to a CD-R is not considered to have produced or made a
song, so a person who burns a prohibited image to a CD-R for his personal use has not
produced or made the image.
It is clear that the Legislature intended only that defendant could be convicted of
the 4-year felony of knowingly possessing child sexually abusive material under MCL
750.145c(4). Those who copy or duplicate existing prohibited images for personal use do
not produce or make child sexually abusive material under MCL 750.145c(2); rather,
they are only in possession of it. MCL 750.145c(2) is primarily applicable to those who
originate child sexually abusive material. Therefore, we reverse in part the judgment of
the Court of Appeals, vacate defendant’s convictions under MCL 750.145c(2), and
remand for further proceedings not inconsistent with this opinion.2
I. FACTS AND HISTORY
As relevant here, defendant was charged with five counts of “arrang[ing] for,
produc[ing], mak[ing], or financ[ing]” child sexually abusive material, in violation
of MCL 750.145c(2), after a search of his two laptop computers and approximately 50
2
Defendant was also convicted of five counts of using a computer to commit a
crime, MCL 752.796 and MCL 752.797(3)(f), and three counts of installing a device for
observing, photographing, or eavesdropping in a private place, MCL 750.539d. These
convictions are not before us.
3
CD-Rs found in his bedroom. After being bound over for trial, defendant moved to
quash the information with regard to these charges, arguing that the burning or saving of
images or data to a CD-R does not rise to the level of producing or making child sexually
abusive material. He further argued that the transfer of images from the Internet to his
computer’s hard drive and then to the CD-Rs constituted nothing more than the storage of
data. Thus, he contended that he should only be charged with “knowingly possess[ing]”
child sexually abusive material under MCL 750.145c(4) because he had not originated
the prohibited images.
The trial court denied this motion, stating:
[T]he only question, one of apparent first impression, is whether the
act of downloading the image from the internet and “burning” (recording)
the image to a CD constitutes the “making” or “production” of such
materials.
The dictionary . . . contains several definitions of the word “make.”
Among them are:
To cause to exist, occur, or appear; create; to fit, intend, or destine
by, or as if by creating; to bring into being by forming, shaping, or altering
material; to put together from components.
Applying this definition here, the “bottom line” is that, after the
requisite, mechanical, and technical functions, some things exist (CD-Rs
with these images on them) that did not exist prior to that act.
Defendant appealed by leave granted, and the Court of Appeals affirmed in a published
opinion, stating:
The term “make” is defined as follows: “to bring into existence by
shaping, changing, or combining material[.]” Random House Webster’s
College Dictionary (2001). Defendant acquired child sexually abusive
material through the Internet, and he shaped, formed, and combined the
material through placement of various selected pictures, videos, and images
onto specific CD-Rs, bringing into existence something that had not
4
previously existed, i.e., distinctly created and compiled child-pornography
CD-Rs. [People v Hill, 269 Mich App 505, 518; 715 NW2d 301 (2006).]
The Court of Appeals also stated:
Regardless of whether defendant’s actions are viewed as copying the
original photographs and videos, or copying electronic or computer visual
images of the downloaded photographs and videos, the fact remains that
copies and reproductions were made. Defendant’s argument that use of the
CD-Rs was just a mechanism by which to store possessed child
pornography ignores the reality that the storing of the images was
accomplished through the copying or duplication of already existing images
that continued to exist after the images were burned onto the CD-Rs. The
language of the statute is clear and unambiguous. The decision by the
Legislature to specifically include reproductions or copies in defining
“child sexually abusive material,” which term is then incorporated into
[MCL 750.145c(2)], leaves no room for a contrary judicial construction.
[Id. at 517.]
We denied defendant’s application for leave to appeal, with three justices
indicating that they would grant leave to appeal. 477 Mich 897 (2006). We also denied
defendant’s motion for reconsideration, with three justices indicating that they would
grant reconsideration and, on reconsideration, would grant leave to appeal.3 477 Mich
1016 (2007). Defendant next unsuccessfully sought relief in federal court. Hill v People,
2007 US Dist LEXIS 47700 (WD Mich, July 2, 2007, Case No 1:07-CV-271), and then
proceeded to a bench trial. As relevant to the convictions under review, the evidence
demonstrated that defendant had downloaded and copied to CD-Rs five specific images
3
See also People v Hartman, 480 Mich 1058 (2008), in which three justices
indicated that they would grant leave to appeal to consider whether someone who
downloaded child sexually abusive material from the Internet and saved it to a “flash
drive” could properly be convicted of violating MCL 750.145c(2).
5
depicting child sexually abusive material.4 The trial court found defendant guilty of five
counts of violating MCL 750.145c(2), stating:
The proofs show a repeated pattern of taking an image off the
computer and moving it or saving it somewhere else where it did not
previously exist. . . . Mr. Hill is guilty of . . . making, producing etc. child
sexually abusive materials . . . [that] were created by affirmative action by
the user.
Defendant appealed in the Court of Appeals, which affirmed his convictions and declined
his request to reconsider its earlier published decision holding that the downloading and
burning of child sexually abusive material to a CD-R constitutes making or producing
child sexually abusive material. People v Hill, unpublished opinion per curiam of the
Court of Appeals, issued February 19, 2009 (Docket No. 281055).5 This Court then
granted leave to appeal. 485 Mich 911 (2009).
II. STANDARD OF REVIEW
Whether conduct falls within the scope of a penal statute, in this case MCL
750.145c(2), is a question of statutory interpretation that we review de novo. People v
Stone, 463 Mich 558, 561; 621 NW2d 702 (2001).
4
Although the convictions under review pertained only to 5 images, the evidence
here showed that defendant possessed 50 CD-Rs containing approximately 100,000
images and that an estimated 70 percent of these constituted child sexually abusive
material.
5
The Court of Appeals did, however, identify errors in the scoring of defendant’s
offense variables under the sentencing guidelines and remanded for resentencing.
6
III. RULES OF INTERPRETATION
MCL 750.145c is a relatively lengthy statute. Most relevant for present purposes
are subsections (2) through (4), which provide:
(2) A person who persuades, induces, entices, coerces, causes, or
knowingly allows a child to engage in a child sexually abusive activity for
the purpose of producing any child sexually abusive material, or a person
who arranges for, produces, makes, or finances, or a person who attempts
or prepares or conspires to arrange for, produce, make, or finance any child
sexually abusive activity or child sexually abusive material[6] is guilty of a
felony, punishable by imprisonment for not more than 20 years, or a fine of
not more than $100,000.00, or both, if that person knows, has reason to
know, or should reasonably be expected to know that the child is a child or
that the child sexually abusive material includes a child or that the depiction
constituting the child sexually abusive material appears to include a child,
or that person has not taken reasonable precautions to determine the age of
the child.
(3) A person who distributes or promotes, or finances the
distribution or promotion of, or receives for the purpose of distributing or
promoting, or conspires, attempts, or prepares to distribute, receive,
finance, or promote any child sexually abusive material or child sexually
abusive activity is guilty of a felony, punishable by imprisonment for not
more than 7 years, or a fine of not more than $50,000.00, or both, if that
6
MCL 750.145c(1)(m) defines “child sexually abusive material” as follows:
“Child sexually abusive material” means any depiction, whether
made or produced by electronic, mechanical, or other means, including a
developed or undeveloped photograph, picture, film, slide, video, electronic
visual image, computer diskette, computer or computer-generated image, or
picture, or sound recording which is of a child or appears to include a child
engaging in a listed sexual act; a book, magazine, computer, computer
storage device, or other visual or print or printable medium containing such
a photograph, picture, film, slide, video, electronic visual image, computer,
or computer-generated image, or picture, or sound recording; or any
reproduction, copy, or print of such a photograph, picture, film, slide,
video, electronic visual image, book, magazine, computer, or computergenerated image, or picture, other visual or print or printable medium, or
sound recording.
7
person knows, has reason to know, or should reasonably be expected to
know that the child is a child or that the child sexually abusive material
includes a child or that the depiction constituting the child sexually abusive
material appears to include a child, or that person has not taken reasonable
precautions to determine the age of the child. This subsection does not
apply to the persons described in section 7 of 1984 PA 343, MCL 752.367.
(4) A person who knowingly possesses any child sexually abusive
material is guilty of a felony punishable by imprisonment for not more than
4 years or a fine of not more than $10,000.00, or both, if that person knows,
has reason to know, or should reasonably be expected to know the child is a
child or that the child sexually abusive material includes a child or that the
depiction constituting the child sexually abusive material appears to include
a child, or that person has not taken reasonable precautions to determine the
age of the child.
The issue here is how the terms “produces” and “makes” in subsection (2) should be
interpreted.
The rules of statutory construction are well established. As this Court explained in
G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 420-422; 662 NW2d 710
(2003):
When construing a statute, the Court's primary obligation is to
ascertain the legislative intent that may be reasonably inferred from the
words expressed in the statute. If the language of the statute is
unambiguous, the Legislature is presumed to have intended the meaning
expressed.
* * *
The doctrine of noscitur a sociis, i.e., that “a word or phrase is given
meaning by its context or setting,” affords us assistance in interpreting
[statutes]. . . .
. . . “[Statutes] exist[] and must be read in context with the entire act,
and the words and phrases used there must be assigned such meanings as
are in harmony with the whole of the statute . . . .” “[W]ords in a statute
should not be construed in the void, but should be read together to
harmonize the meaning, giving effect to the act as a whole.” Although a
8
phrase or a statement may mean one thing when read in isolation, it may
mean something substantially different when read in context. “In seeking
meaning, words and clauses will not be divorced from those which precede
and those which follow.” “It is a familiar principle of statutory
construction that words grouped in a list should be given related meaning.”
[Citations omitted.]
We are also instructed to give undefined statutory terms their plain and ordinary meaning
unless the undefined word or phrase is a term of art.7
The Legislature did not specifically define the terms “produces” or “makes.”
Therefore, it is appropriate to consider dictionary definitions to discern the meanings of
these terms. Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456
Mich 590, 604; 575 NW2d 751 (1998).
From all of this, it is clear that what a court should do in construing a term in a
criminal statute for which there are a variety of potential definitions is to determine from
among those definitions which the Legislature most reasonably intended by the specific
context in which the term is found.
IV. APPLICATION
This Court first considered MCL 750.145c in People v Tombs, 472 Mich 446; 697
NW2d 494 (2005). In Tombs, the defendant turned in a company laptop computer, and
more than 500 images of child pornography were found on it in a file location not readily
7
MCL 8.3a provides:
All words and phrases shall be construed and understood according
to the common and approved usage of the language; but technical words
and phrases, and such as may have acquired a peculiar and appropriate
meaning in the law, shall be construed and understood according to such
peculiar and appropriate meaning.
9
or easily locatable.
The defendant was convicted of violating MCL 750.145c(3),
promoting or distributing child sexually abusive material. This Court first recognized the
longstanding principle that a criminal statute is presumed to include a criminal intent or
mens rea absent an express or implied indication that the Legislature wanted to dispense
with it. Id. at 456-457 (opinion by KELLY, J.); id. at 466 (TAYLOR, C.J., concurring).8
We then held that the criminal intent to possess child sexually abusive material was not
the same as the criminal intent to promote or distribute child sexually abusive material.
Id. at 448 (opinion by KELLY, J.). We affirmed the decision of the Court of Appeals that
reversed the defendant’s conviction for distributing or promoting child sexually abusive
material, stating: “Although defendant intended to distribute the laptop containing child
sexually abusive material to his former employer, no evidence suggests that he
distributed the material with a criminal intent.” Id. at 459-460.
The lead opinion in Tombs examined MCL 750.145c and proceeded to summarize
the Court’s position as follows: “The Legislature expressly separated the crimes of
8
As explained in People v Beaudin, 417 Mich 570, 574; 339 NW2d 461 (1983):
“Performance of the physical act proscribed in the statute is not enough to sustain a
conviction. The act must be coincident with an intent to bring about the particular result
the statute seeks to prohibit.” It is also the case that common-law defenses are “read
into” criminal statutes. See, e.g., United States v Panter, 688 F2d 268, 271 (CA 5, 1982),
which explained that a legislature’s
failure to provide specifically for a common-law defense in drafting a
criminal statute does not necessarily preclude a defendant charged with
violating that statute from relying on such a defense. This conclusion is
unassailable; statutes rarely enumerate the defenses to the crimes they
describe.
10
production of child sexually abusive material, distribution or promotion of the material,
and simple possession.” Id. at 464. It further stated:
Possession is not the same as promotion. The prosecutor blurs the
two, asserting that by obtaining the material from the Internet, defendant
promoted it. To accept that argument, this Court would have to ignore the
express language of the Legislature that created a graduated scheme of
offenses and punishments regarding child sexually abusive material. [Id.][9]
Tombs recognized that MCL 750.145c clearly establishes three tiers in its graduated
scheme of both offenses and punishments. Those who are involved in the production of
child sexually abusive material are subject to a maximum sentence of 20 years, those who
distribute or promote such material are subject to a maximum sentence of 7 years, and
those who knowingly possess such material are subject to a maximum sentence of 4
years.
There is an inherent logic to this scheme. The Legislature reasonably concluded
that those who distribute or promote child sexually abusive material are more morally
and criminally culpable than those who possess such material and that those who create
or originate such material are the most morally and criminally culpable. The case at bar
requires us to determine whether defendant’s act of downloading and burning child
9
Accord People v Adkins, 272 Mich App 37, 40; 724 NW2d 710 (2006) (“We
conclude that the language of [MCL 750.145c(2)] clearly and unambiguously imposes
criminal liability on three distinct groups of ‘person[s],’ provided that at the time of their
actions, the persons met the requisite knowledge element.”). See also People v Ward,
206 Mich App 38, 42-43; 520 NW2d 363 (1994), in which the Court of Appeals observed
that MCL 750.145c(2) “focuses on protecting children from sexual exploitation,
assaultive or otherwise” and that the purpose of the statute is “to combat the use of
children in pornographic movies and photographs, and to prohibit the production and
distribution of child pornography.”
11
sexually abusive material to CD-Rs falls within the top tier or the bottom tier; it is not
argued by either party that it falls within the middle tier, and we also do not believe that it
does, for what defendant has done does not constitute the promotion or distribution of
child sexually abusive material.
That is, unlike Tombs, this case does not involve
determining whether a defendant’s conduct falls within adjacent tiers and whether it is
punishable as a 4-year or 7-year felony. Rather, this case involves determining whether
defendant’s conduct falls within the lowest or the highest tier and thus whether defendant
has committed a 4- or 20-year felony.
We keep the graduated scheme of MCL 750.145c and the magnitude of the
potential disparity in defendant’s criminal liability in mind as we attempt to discern the
most reasonable definitions for “produces” and “makes” as used in MCL 750.145c(2).
Again, the pertinent language of that subsection is “arranges for, produces, makes, or
finances” any child sexually abusive material. On the basis of the previously stated
principles, we must consider MCL 750.145c as a whole in determining the meaning of
“produces” and “makes” in this statutory context. Pursuant to the maxim of noscitur a
sociis, these words must be viewed in light of the surrounding terms employed in MCL
750.145c(2), i.e., “arranges for” and “finances,” because the latter supply guidance
regarding what the former mean in context.
“Makes” and “produces” are used in MCL 750.145c(2) as verbs that may
communicate a variety of different concepts. The Court of Appeals adopted the first
definition of “make” in the Random House Webster’s College Dictionary (2001)-- “to
bring into existence by shaping, changing, or combining material[.]” Hill, 269 Mich App
12
at 518. But this is only one of many definitions for “make” in that dictionary. The
second and third definitions are as follows: “2. to cause to exist or happen . . . . 3. to
cause to become . . . .”
The same dictionary also provides the following relevant
definitions of “produce”: “1. to cause to exist; give rise to . . . . 2. to bring into
existence . . . . 7. to bring (a play, movie, opera, etc.) before the public.” We also
consider the surrounding words, “arranges for” and “finances.” The dictionary offers the
following relevant definitions of “arrange” as in “arranges for”: “3. to prepare or
plan . . . . 5. to make plans or preparations . . . .” For “finances,” it offers the following
relevant definition: “3. to supply with money or capital . . . .”
The definitions of “arranges for,” “finances,” and “produce” afford obvious insight
into how the adjoining term “make” should be interpreted. When these four words are
viewed together, their relatedness or common meaning becomes increasingly apparent-each constitutes a verb selected by the Legislature to communicate that persons included
within this subsection are those who are somehow responsible for the creation or
origination of child sexually abusive material. Those who arrange for child sexually
abusive material are involved at the front end of the process by identifying and
coordinating the participants, equipment, and locations.
That is, the arranger has
undertaken actions that lead to the actual production of the child sexually abusive
material. Those who finance child sexually abusive material provide funding that leads
to the same result. The terms “arranges for” and “finances” suggest that the most
reasonable understanding of “produce” is “to bring (a play, movie, opera, etc.) before the
public.” In other words, one should envision a producer as a person similar to the
13
producer of a play, movie, or opera who is directly responsible for the creation or
origination of a particular production, in this case child sexually abusive material.
“Produce” refers to the conduct of those persons but for whom the production (the
material) would not exist in the first place, i.e., those who have transformed an idea into a
reality. Without those who have arranged for, financed, or produced, there would be no
child sexually abusive material at all.
This leaves the term “makes.” Given the related definitions and understandings of
“arranges,” “produces,” and “finances,” we believe that “makes” should be interpreted in
a similar manner as meaning “to cause to exist or happen” or “to cause to become.”10
That is, “makes” should be interpreted in the common fashion as referring to someone
who is primarily involved in the creation or origination of the child sexually abusive
material.11
10
While we agree with the first part of the definition adopted by the Court of
Appeals, “to bring into existence,” we reject the second half of that definition, “by
shaping, changing, or combining material,” Hill, 269 Mich App at 518, because it adds a
limiting dimension to “makes” that is inconsistent with the meanings of the surrounding
terms, “arranges for,” “produces,” or “finances.”
11
This understanding of “produces” and “makes” is consistent with the opening
clause of MCL 750.145c(2), which describes other individuals subject to punishment
under that subsection: “[a] person who persuades, induces, entices, coerces, causes, or
knowingly allows a child to engage in a child sexually abusive activity for the purpose of
producing any child sexually abusive material[.]” The terms used in the opening clause
clearly refer to those who have had direct contact with a minor, either through the
minor’s recruitment or through the minor’s “performance” in the prohibited material.
While those identified in the opening clause definitely are persons who directly deal with
the children, those identified in the second clause, the arrangers, producers, makers, and
financers, may also on frequent occasion have direct contact with the children.
14
When the terms “produces” and “makes” are understood in this light, it is simply
untenable to conclude that downloading an existing image from the Internet and burning
it to a CD-R for personal use constitutes producing or making child sexually abusive
material under MCL 750.145c(2). While such conduct certainly constitutes proof of
knowing possession of such material, it does not constitute sufficient proof of the making
or producing of that material. Thus, when we consider the statute as a whole, especially
the maxim of noscitur a sociis in conjunction with the graduated scheme of offenses and
punishment, we conclude that MCL 750.145c(2) is primarily concerned with punishing
those who are involved in the creation or origination of child sexually abusive material
and not those who download and maintain that material for personal use.12
The Court of Appeals held that defendant had made child sexually abusive
material, in violation of MCL 750.145c(2), because he brought into existence something
that had not previously existed. We respectfully disagree with this analysis. While the
12
Indeed, we note that before the instant Court of Appeals opinion, all published
Michigan caselaw only applied the portion of MCL 750.145c(2) concerning a person who
“produces” or “makes” child sexually abusive material to those involved in the creation
or origination of prohibited images. See, e.g., People v Heim, 206 Mich App 439; 522
NW2d 675 (1994) (defendant who photographed his 16-year-old niece), People v Hack,
219 Mich App 299; 556 NW2d 187 (1996) (defendant who coerced two children to
engage in sexual acts that he videotaped), People v Riggs, 237 Mich App 584; 604 NW2d
68 (1999) (defendant who photographed and videotaped four young girls), People v
Harmon, 248 Mich App 522, 526-528; 640 NW2d 314 (2001) (defendant who
photographed two minors engaged in sexual acts), and People v Wilkens, 267 Mich App
728; 705 NW2d 728 (2005) (defendant who recorded himself and two minors engaging
in sexual acts). Thus, those who originate or create child pornography are guilty of
violating MCL 750.145c(2), even if they only intend to keep the material for personal
use.
15
burned CD-Rs may not have previously existed, this does not mean, in our judgment, that
defendant made child sexually abusive material within the scope of MCL 750.145c(2).
The fact that defendant placed prohibited images from different websites onto CD-Rs
does not by itself rise to the level of making child sexually abusive material within the
scheme enacted by the Legislature.13 Rather, such a reading of the statute can only be
reached if one fails to give full consideration to the statute’s graduated scheme of
offenses and punishments and if the term “makes” is read in isolation and without
considering the immediately surrounding words. When “makes” is given a meaning
reasonably compatible with those companion terms, its most reasonable interpretation
pertains to the creation or origination of the child sexually abusive material in the first
instance.
13
In Tombs, we held that the criminal intent to knowingly possess child sexually
abusive material was not the same as the criminal intent to promote or distribute child
sexually abusive material. Tombs, 472 Mich at 448 (opinion by KELLY, J.). Similarly,
we hold here that the criminal intent to knowingly possess child sexually abusive
material, when the possession is accomplished by burning a CD-R for the purpose of
possessing the prohibited images and not for future distribution or promotion, does not
establish the criminal intent to produce or make child sexually abusive material. In
Tombs, we also held that one who handed a computer containing child pornography to
someone else did not distribute child pornography, even though the act of handing a
computer to another person would satisfy a dictionary definition of “distribute.” The
Court held that the act of intentionally handing a computer over to another was
insufficient by itself to constitute distributing child pornography. Rather, there had to be
some criminal intent to distribute, and the defendant in Tombs did not possess that intent.
Similarly, defendant here burned CD-Rs, and these acts by themselves did not constitute
making or producing child pornography because there was no proof beyond a reasonable
doubt that this was defendant’s intent when he burned the CD-Rs for his personal use.
16
We believe our conclusion is reinforced by consideration of the manner in which
most persons ordinarily think about other types of Internet downloading. It is common
today for computer users to legally, and sometimes illegally, download songs, movies,
television shows, music videos, and books from the Internet. When such materials are
subsequently burned to a CD-R or recordable DVD or some other storage device, as they
often are, few would be inclined to characterize that conduct as the making or producing
of that song, movie, television show, music video, or book. Such a characterization
would, to say the least, be strained and incompatible with the “common and approved
usage of the language . . . .” MCL 8.3a.14
The Court of Appeals and the dissents focus on the fact that MCL 750.145c(1)(m)
defines “child sexually abusive material” as “any depiction,” including any “reproduction
[or] copy,” of a “computer-generated image, or picture . . . .”
Thus, they read the
prohibition against making or producing child sexually abusive material in conjunction
with the fact that a reproduction or copy of a computer-generated image falls within the
ambit of prohibited images in concluding that burning a prohibited image to a CD-R
14
We further believe the Court of Appeals’ analysis produces highly anomalous
results. Consider two persons, one of whom downloads and burns child sexually abusive
material to a CD-R for his personal possession and one of whom takes that CD-R and
attempts to sell it. Under the dissents and the Court of Appeals’ decision, the downloader
has committed a 20-year felony while the seller has committed only a 7-year felony. We
do not believe that this is consistent with the Legislature’s intentions because the three
tiers of MCL 750.145c instead suggest that the distributor is more criminally culpable
than the downloader who, in order to obtain possession, has burned the prohibited images
to a CD-R. When the Legislature has deemed the maker more culpable than the
distributor, we disagree with the dissents’ broad interpretation of “make,” which we
believe casts a far broader net than intended by the Legislature.
17
constitutes making prohibited material. Again, we respectfully disagree. If an image
constitutes child sexually abusive material, this is true without regard to whether a
defendant is someone who arranges for, produces, makes, or finances, or who distributes
or promotes, or who only knowingly possesses. In other words, once it is determined that
an image constitutes child sexually abusive material, it must then be determined into
which of the statute’s three tiers the defendant’s conduct falls.
The fact that the definition of “child sexually abusive material” in MCL
750.145c(1)(m) includes copies of computer-generated images does not provide
particular insight into what either “makes” or “produces” means in MCL 750.145c(2).
Rather, the fact that child sexually abusive material includes not just originals but also
copies simply communicates that a person may be charged with knowingly possessing a
copy of a computer-generated image, or with promoting or distributing a copy of a
computer-generated image, or with arranging for, producing, making, or financing a copy
of a computer-generated image, in a manner indistinguishable from the person engaged in
those same activities in connection with an original image.
Defendant here was convicted of five counts of producing or making child
sexually abusive material on the basis of 5 specific images. A review of his 2 laptop
computers and 50 CD-Rs revealed 5 copies of one of the images and fewer, or no,
duplicates of the other images that sustained his convictions. The fact that 5 copies of a
single prohibited image were found after searching 52 different locations containing
approximately 70,000 images is insufficient, in our judgment, in the absence of other
evidence to establish beyond a reasonable doubt a criminal intent on defendant’s part to
18
produce or make this material.15 Since a common definition of “child sexually abusive
material” applies to all three tiers of MCL 750.145c, we conclude that the Legislature did
not intend that burning, or copying, images to a CD-R would have any special
significance when determining which particular tier had been violated by that burning or
copying.
We are persuaded that the Legislature did not intend to impose the same maximum
penalty on a person who downloads a prohibited image from the Internet and burns it to a
CD-R for personal use as on the person who is responsible for the creation of the
pornographic images of children. The latter is obviously more morally and criminally
culpable than the person who downloads an image and saves it to another medium for
personal use; at least, this is what the Legislature, in our judgment, has communicated by
its enactment of MCL 750.145c. Those who arrange for, produce, make, or finance child
sexually abusive material are punished more severely because they are the reason the
images exist in the first place.
While the Court of Appeals’ definition of “makes” has some dictionary support,
its analysis was incomplete because it did not consider the statute as a whole and because
it did not consider that “makes” should be given a meaning compatible with its
15
Cf. People v Peterson, 63 Mich App 538, 548; 234 NW2d 692 (1975):
[T]he quantity of [marijuana] seeds possessed was so slight that we
are constrained to find that reasonable jurors could not infer the intent to
deliver from that quantity. There was no other evidence on the question of
defendant's intent. It was therefore error for the trial judge to deny
defendant's motion for a directed verdict of acquittal on the charged
offense.
19
surrounding words. When properly construed, the terms “produces” and “makes” are
best understood as addressing those who are involved in the creation or origination of
child pornography, and not those who download and burn a CD-R of prohibited images
for personal use.
V. RESPONSE TO THE DISSENTS
The dissents obscure the issue before the Court by emphasizing the large quantity
of prohibited images found in defendant’s possession. There is no doubt that defendant
possessed a very considerable amount of child sexually abusive material. However, the
question before this Court is not whether defendant was a committed user of child
sexually abusive material-- he was-- or whether he criminally violated MCL 750.145c-he did-- but whether burning even a single prohibited image to a CD-R constitutes
producing or making child sexually abusive material in violation of MCL 750.145c(2).16
The dissents fail to adequately consider the statute’s overall organization and
graduated scheme of offenses and punishments. As a consequence, the dissents end up
blurring, and eventually ignoring altogether, the very distinct criminal definitions and
requisite states of mind necessary to obtain a conviction under MCL 750.145c when they
interpret “makes” as encompassing the conduct of a person who burns a prohibited image
to a CD-R for the purpose of storing, or making permanent, his possession of that image.
16
Even Justice YOUNG recognizes this in asserting in his dissent that “[m]aking
even a single copy of child pornography violates the statute.” Whether there is a large
number of prohibited images in defendant’s possession may well be a factor for the trial
court to consider at sentencing; however, this does not transform a violation of subsection
(4) of MCL 750.145c into a violation of subsection (2) of that statute.
20
Contrary to Justice YOUNG’s assertion that the majority “would prefer that the statute
cease” after its most severe violation has been defined, it is the dissenting justices who
inappropriately read this language in isolation, ignoring the overall structure and
organization of the statute, ignoring the distinct offenses that the statute defines, and
ignoring the gradations of punishment that the statute establishes. It is the dissents that
distort what is manifest in the statute-- that distinctions are to be made among criminal
violators, distinctions predicated on whether the violator has created or originated the
material, distributed the material, or merely possessed the material.
The dissents would compress nearly every criminal violator into the category of
“creator” or “originator” on the basis of their having made a copy of material created or
originated by others. Thus, to the dissenters, there is no distinction, as we believe is
manifest in the statute, between a person who downloads and burns child sexually
abusive material to a storage device and the person who procures the seven-year-old girl,
pays her parents, and then produces a film or image in which she is depicted in sexual
poses.17 However, these are distinctions that the Legislature has made, and they are
reasonable distinctions.
The dissents notwithstanding, we do not “relieve[] . . . of
criminal responsibility” the computer downloader when we recognize that the Legislature
drew distinctions in MCL 750.145c between types of misconduct.
No criminal
responsibilities are being “relieved” when legislative distinctions are respected and the
17
The question of what offense a mass producer of copies of a single prohibited
image would be guilty is not before us, and we do not address it in this case.
21
computer downloader of prohibited material is made subject to a 4-year term of
imprisonment and the distributor of the same material is made subject to a 7-year term of
imprisonment instead of the 20-year term of imprisonment reserved for the producer of
the material, but for whose actions the material would never have existed in the first
place. The Legislature is entitled to draw distinctions in its definitions of criminal
activity, and this Court is obligated as a general matter to abide by those distinctions.
Given that various things can be downloaded from the Internet and burned to other
media, the dissents’ strained interpretation of the term “makes” would have consequences
far beyond the instant case. A person can download-- legally or illegally-- songs, books,
music videos, television shows, or movies from the Internet and burn them to another
medium such as a CD-R or recordable DVD. Yet virtually no one beyond the dissenting
justices would consider such a person to have “made” or “produced” those songs, books,
music videos, television shows, or movies. The legal or illegal downloader of Star Wars
is not the equivalent of Stephen Spielberg, the legal or illegal downloader of The Da
Vinci Code is not the equivalent of Dan Brown, and the legal or illegal downloader of the
Sgt. Pepper’s Lonely Hearts Club Band album is not the equivalent of John Lennon or
Paul McCartney. Even if these downloaders preserve the materials on a CD or DVD,
they have not “made” those movies, “made” those books, or “made” that music in the
same way as the creators of the materials.18 Similarly, we are satisfied that a person who
18
That the illegal downloading and burning of a song, movie, or book may
constitute a violation of federal copyright law, as Justice YOUNG asserts, post at 9 n 8,
bears little relevance to whether a person who downloads and burns for personal use a
22
burns a prohibited image to a CD-R or recordable DVD for his personal use is not the
equivalent of the person who procured the child, placed the cameras in front of her, and
created or originated child sexually abusive material. While both are criminally liable,
they are liable under different sections of the statute.
Indeed, under the dissents’ interpretations, one might argue that someone who
only viewed a prohibited image on a computer screen is guilty of making child
pornography, given that computers themselves automatically store viewed images in
temporary files. In other words, if Justice YOUNG genuinely believes that burning even a
single prohibited image to a CD-R always constitutes making child pornography because
it increases “the net amount of child pornographic images in existence,” it would seem
that consistency would require that a defendant who is merely aware of such temporary
files would also be guilty of making child sexually abusive material whenever he views
those images.
Finally, the dissents also assert that the majority has created “out of whole cloth”
an “additional hurdle” by requiring proof of a defendant’s intent.
This is plainly
incorrect. There is nothing at all remarkable in a court’s reading a criminal intent into a
criminal statute, given that such statutes are generally presumed to include a criminal
intent. See Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 288 (1952);
Staples v United States, 511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994); Tombs,
song, movie, or book and thereby infringes on the copyright is making or producing the
song, movie, or book under MCL 750.145c(2).
23
472 Mich at 452-456 (opinion by KELLY, J.); id. at 465-468 (TAYLOR, C.J., concurring).
Absent any state-of-mind requirement, a wife who transported her husband’s laptop to
the police station because she suspected that it contained child sexually abusive material
would herself arguably be a possessor and distributor of the material. See Tombs, 472 at
458-459 (opinion by KELLY, J.).
Similarly in this case, absent any state-of-mind
requirement, a wife who downloaded a child sexually abusive image from her husband’s
computer and brought it to the police would herself run the risk of being characterized as
a maker of the material under the dissents’ interpretations of MCL 750.145c. Contrary to
the dissents, it does not create an “additional hurdle” to prosecutions, or create a new
statute “out of whole cloth,” to require proof of a criminal intent in a criminal statute.
VI. CONCLUSION
A defendant who downloads child sexually abusive material from the Internet and
burns the images to a CD-R, when there is no evidence the defendant had a criminal
intent to do something other than possess the CD-R for his own personal use, may not be
convicted of violating MCL 750.145c(2), which makes it a 20-year felony for any person
who “arranges for, produces, makes, or finances” “any child sexually abusive
material . . . .” Rather, that person is properly convicted of knowing possession of child
sexually abusive material in violation of MCL 750.145c(4), a 4-year felony. The three
tiers of offenses and punishments in MCL 750.145c compellingly indicate the Legislature
did not intend to impose the same maximum penalty on a person who downloads a
prohibited image from the Internet and burns it to a CD-R for personal use as on a person
who is involved in the creation or origination of child sexually abusive material.
24
Therefore, we reverse in part the judgment of the Court of Appeals, vacate defendant’s
convictions under MCL 750.145c(2), and remand for further proceedings not inconsistent
with this opinion.
KELLY, C.J., and CAVANAGH and HATHAWAY, JJ., concurred with MARKMAN, J.
25
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 138668
BRIAN LEE HILL,
Defendant-Appellant.
WEAVER, J. (dissenting).
I dissent from the majority opinion, which reverses in part the judgment of the
Court of Appeals and vacates defendant’s convictions under MCL 750.145c(2). I would
affirm defendant’s convictions under MCL 750.145c(2) because defendant intentionally
made copies of child sexually abusive material.
In this case, police officers obtained two laptop computers and numerous
recordable compact discs from defendant’s home containing approximately 70,000 to
80,000 pornographic images of boys ranging in age from “toddlers to teens.” Within
defendant’s immense collection of pornographic images, authorities found multiple
copies of a single pornographic image.
The copies created the basis for charging
defendant with making child sexually abusive material.
I agree with Justice YOUNG’s statement in his dissent: “[T]he majority opinion
relieves a defendant of criminal responsibility for making copies of child pornography
‘for personal use’ and creates out of whole cloth an additional hurdle for those
prosecuting individuals who make child pornography . . . .”
Elizabeth A. Weaver
2
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 138668
BRIAN LEE HILL,
Defendant-Appellant.
YOUNG, J. (dissenting).
In this case, defendant admitted making 50 recordable compact discs (CD-Rs)
containing approximately 70,000 to 80,000 pornographic pictures depicting boys from
“toddlers to teens,” as well as videos depicting 12- to 13-year-old boys engaged in sexual
acts. Within this compendious library of child pornography, multiple copies of one
particular pornographic image formed the basis of the charges that were lodged against
defendant for making child sexually abusive material.1
1
Five images, described as “Jeff0015.jpg,” were created on defendant’s laptop
computer on October 5, 2002, and September 9, 2003, and found on three separate
CD-Rs created April 15, 2003, April 26, 2003, and June 11, 2003. The record also
indicates that the Jeff0015.jpg file was attached to a November 28, 2003, e-mail.
However, a computer forensic examiner testified that she was unable to determine
whether defendant sent the e-mail or received it.
The statute under which defendant was convicted plainly applies to any person
who “makes” copies of child pornography.2 Here, despite the uncontested proof that
defendant made numerous copies of one particular pornographic image, the majority
opinion reverses defendant’s convictions because it contends that he merely intended to
possess the copied images “for personal use” and because the majority opinion finds it
“simply untenable” that the Legislature would punish “those who download and maintain
that material for personal use” as harshly as those involved in the “creation or
origination” of child pornography.
However, the straightforward language of the statute is not limited to the original
creator of the child pornography.
Rather, MCL 750.145c(2) explicitly criminalizes
making copies of child pornography, without requiring the prosecution to prove what the
defendant intended to do with the child pornography once the crime had been committed,
that is, once the copies had been made.
Because the majority opinion relieves a
defendant of criminal responsibility for making copies of child pornography “for personal
use” and creates out of whole cloth an additional hurdle for those prosecuting individuals
who make child pornography, I vigorously dissent.
The relevant portions of MCL 750.145c provide:
(2) A person who persuades, induces, entices, coerces, causes, or
knowingly allows a child to engage in a child sexually abusive activity for
the purpose of producing any child sexually abusive material, or a person
who arranges for, produces, makes, or finances, or a person who attempts
or prepares or conspires to arrange for, produce, make, or finance any child
2
MCL 750.145c(1)(m); MCL 750.145c(2).
2
sexually abusive activity or child sexually abusive material is guilty of a
felony, punishable by imprisonment for not more than 20 years, or a fine of
not more than $100,000.00, or both . . . .
(3) A person who distributes or promotes, or finances the
distribution or promotion of, or receives for the purpose of distributing or
promoting, or conspires, attempts, or prepares to distribute, receive,
finance, or promote any child sexually abusive material or child sexually
abusive activity is guilty of a felony, punishable by imprisonment for not
more than 7 years, or a fine of not more than $50,000.00, or both . . . .
(4) A person who knowingly possesses any child sexually abusive
material is guilty of a felony punishable by imprisonment for not more than
4 years or a fine of not more than $10,000.00, or both . . . . [Emphasis
added.]
Also critical to interpreting the prohibition against making child pornography is
the statutory definition of two relevant terms.
“Child sexually abusive activity” is
defined as “a child engaging in a listed sexual act,”3 while “child sexually abusive
material” is statutorily defined as
any depiction, whether made or produced by electronic, mechanical, or
other means, including a developed or undeveloped photograph, picture,
film, slide, video, electronic visual image, computer diskette, computer or
computer-generated image, or picture, or sound recording which is of a
child or appears to include a child engaging in a listed sexual act; a book,
magazine, computer, computer storage device, or other visual or print or
printable medium containing such a photograph, picture, film, slide, video,
electronic visual image, computer, or computer-generated image, or picture,
or sound recording; or any reproduction, copy, or print of such a
photograph, picture, film, slide, video, electronic visual image, book,
magazine, computer, or computer-generated image, or picture, other visual
or print or printable medium, or sound recording.[4]
3
MCL 750.145c(1)(l). When defendant created the images at issue, the definition
was codified at MCL 750.145c(1)(k).
4
MCL 750.145c(1)(m) (emphasis added). When defendant created the images,
this definition was codified at MCL 750.145c(1)(l).
3
I agree with the majority opinion that MCL 750.145c establishes a graduated
scheme of offenses and punishments. Broken down into its simplest terms, the statute
provides a 20-year maximum sentence for those who make child pornography, a 7-year
maximum sentence for those who distribute child pornography, and a 4-year maximum
sentence for those who knowingly possess child pornography. It is the most severe
sanction—the 20-year maximum sentence for those who make child pornography—that
is at issue in this case.
MCL 750.145c(2) contains two distinct clauses, separated by the conjunction “or.”
The first clause covers a person who “persuades, induces, entices, coerces, causes, or
knowingly allows a child to engage in a child sexually abusive activity for the purpose of
producing any child sexually abusive material . . . .” This clause penalizes those who
cause a child to engage in a sexual act for the purpose of producing child pornography.
These are the “creators” or “originators” of the child pornography, those whom the
majority opinion acknowledges as having “direct contact with a minor.”
While the majority would prefer that the statute cease at the creators or originators
of the child pornography, it does not. The second clause of MCL 750.145c(2) imposes
criminal sanctions on a person who “arranges for, produces, makes, or finances . . . any
child sexually abusive activity or child sexually abusive material . . . .”5 (Emphasis
added.) The latter portion of the statutory provision pertains to more than the child
5
The statute also imposes criminal sanctions on one who “attempts or prepares or
conspires to” arrange for, produce, make, or finance any child sexually abusive activity or
child sexually abusive material. MCL 750.145c(2).
4
sexually abusive activity—significantly, it also relates to the child sexually abusive
material. And that is a critical point in any effort to give full meaning to this statute.
As noted, “child sexually abusive material” is statutorily defined as any depiction
of a child engaged in a sexual act. The statute uses broad language to cover a wide range
of image formats, including images produced by electronic, mechanical, or other means,
photographs, pictures, films, slides, videos, electronic visual images, books, and
magazines. It also includes depictions on a computer diskette, a computer, or a computer
storage device. Significantly, “child sexually abusive material” includes “any
reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic
visual image, book, magazine, computer, or computer-generated image, or picture, other
visual or print or printable medium, or sound recording.”6
The definitive question in this case is quite simple: did defendant “produce [or]
make” a “reproduction [or] copy” of an “electronic visual image,” a “computer, or
computer-generated image,” or other “visual or print” medium when he took the
deliberate action of copying “Jeff0015.jpg” to his computer hard drive? Unquestionably,
the answer is yes. Defendant then took the additional, volitional steps of copying that
image to his computer a second time, as well as copying it to several CD-Rs.
The majority opinion’s conclusion that MCL 750.145c(2) is “primarily concerned”
with punishing “the creation or origination” of child pornography and “not those who
download” it “for personal use” has no basis in the language of the statute. Indeed, the
6
MCL 750.145c(1)(m).
5
majority opinion takes great pains to avoid noting or giving significance to the fact that
by downloading and successively copying child pornography, defendant intentionally
produced or made a “reproduction [or] copy” of the same illicit pornographic image five
distinct times.
Forced to acknowledge that the plain language of the statute says what it says and
that “a person may be charged with” “producing, making, or financing a copy of a
computer-generated image” in a “manner indistinguishable from the person” who created
the original image, the majority opinion nevertheless proceeds to write the second clause
of MCL 750.145c(2) out of existence by concluding that a defendant’s ultimate plans for
the child pornography negate the criminal prohibition regarding the method of
acquisition.7 Presumably, a defendant copying child pornography would only ever do so
for one of two purposes—either to possess it for himself or to distribute it to others. Both
of these purposes are reflected in MCL 750.145c(3) and (4), which provide for a 7-year
maximum sentence for those who distribute child pornography and a 4-year maximum
sentence for those who possess child pornography. Under the majority opinion, despite
the clear mandate imposing a 20-year sentence on those who make copies of child
7
Our criminal code is replete with examples of crimes that have heightened
consequences because of a defendant’s chosen method of committing the crime. For
example, one who commits an assault is generally subject to a 93-day jail term for that
misdemeanor. MCL 750.81. However, if the same assault is committed with a
dangerous weapon, the crime is a four-year felony. MCL 750.82. If the analysis used in
the majority opinion were applied to a felonious assault case, one would be forced to
conclude that the defendant merely intended to commit a 93-day misdemeanor, not a
four-year felony, despite the uncontested evidence that a dangerous weapon was used
during the assault.
6
pornography, a defendant who makes copies of child pornography will never face more
than either 4 or 7 years’ imprisonment.
By holding that a defendant who makes copies of child pornography is guilty of
only a 4-year felony when the copies are made “for personal use,” the majority opinion
essentially holds that defendant’s criminal liability is limited to that of a mere possessor
under MCL 750.145c(4). However, under the plain language of the statute, defendant is
more than a mere possessor of child pornography. The majority’s holding is especially
hard to square with the fact that defendant took the additional, volitional steps of copying
the images to his computer and separately to CD-Rs. I believe that these actions fall
squarely under MCL 750.145c(2) rather than MCL 750.145c(4). As the Court of Appeals
opinion noted, it is certainly possible to possess child pornography without copying or
reproducing the images. Indeed, defendant could have satisfied his yen for “personal
use” of child pornography and “merely possessed” the images by viewing them on the
Internet without actually copying the images to his computer twice and recopying the
images to several entirely separate compact discs. However, once he copied an image, he
clearly violated MCL 750.145c(2).
While the majority opinion maintains that the
originator of child pornography is “obviously more morally” and “more criminally”
culpable than the copier of child pornography, nothing in the statutory scheme indicates
that the Legislature shares the majority’s culpability assessment.
Indeed, the clear
language of the statute indicates that the Legislature has deemed that both are equally
culpable, and certainly more culpable than a defendant who possesses an illicit image
without having taken the additional step of copying it.
7
The majority opinion also indicates that defendant’s making “5 copies of a single
prohibited image” is insufficient as a matter of law to sustain defendant’s convictions.
This is a conclusion that has absolutely no basis in the text of the statute. It is unclear to
me why making five copies of an identical pornographic image of a minor is insufficient
to sustain defendant’s convictions because the entirety of MCL 750.145c(2) contains no
numerical minimum requirement concerning copies of child pornography. Making even
a single copy of child pornography violates the statute. The reason the majority opinion
makes no effort to explain the calculus involved in determining that making five copies is
insufficient is because it simply cannot justify such a conclusion.
The majority opinion runs far afield in responding to this dissent—and naturally so
because the statutory language is clear and the majority is forced to strain in order to
justify its conclusion. Central to the majority opinion’s argument is its false conclusion
that MCL 750.145c(2) is limited to the originator of child pornography. Thus, only those
defendants having “direct contact with a minor” may be charged with violating MCL
750.145c(2). Not surprisingly, the majority opinion gives absolutely no meaning to the
fact that the statute also encompasses those who make copies of child pornography, not
merely those who “procured the child” and “placed the cameras in front of her.”
While the hyperbole comparing child pornography to downloading materials from
the Internet in violation of federal copyright laws certainly makes for entertaining
reading, it is equivalent to comparing apples to orangutans. The federal copyright laws
encompass those who willfully infringe a copyright, which includes making copies of the
8
creator’s copyrighted material.8 By including a “reproduction [or] copy” of pornographic
child images in the definition of “child sexually abusive material,” the very material
prohibited under MCL 750.145c(2), the Legislature has unambiguously indicated that
one need not be the Cecil B. DeMille of child pornography in order to run afoul of MCL
750.145c(2) for "mak[ing]" child sexually abusive material.
I find nothing vexing, much less “simply untenable,” about our Legislature’s
decision to place an increased sanction on defendants who make copies of child
pornography, thereby increasing the net amount of child pornographic images in
existence. Because there is no question that defendant intentionally made multiple copies
of child pornography, his convictions were proper and should be affirmed. Because the
8
Title 17 of the United States Code establishes a creator's intellectual property
rights in original works. 17 USC 102(a). The owner of the copyright has “the exclusive
rights to do and to authorize . . . to reproduce the copyrighted work in copies,” 17 USC
106(1), and “to distribute copies” of the copyrighted work, 17 USC 106(3). Federal law
also establishes penalties for copyright infringement. It allows the copyright owner “to
institute an action for any infringement,” 17 USC 501(b), including injunctive relief (17
USC 502), impounding prohibited material (17 USC 503), and damages (17 USC 504).
Federal law also criminalizes an intentional copyright infringement committed
“for purposes of commercial advantage or private financial gain[.]” 17 USC
506(a)(1)(A). There is a three-tiered system of punishment, as provided in 18 USC
2319(b): a 5-year maximum sentence for reproducing or distributing at least 10 copies
of one or more copyrighted works whose total retail value is greater than $2,500, a 10year maximum for repeat felony offenders, and a 1-year maximum for any other case.
Thus, making unauthorized “copies” is precisely the nature of a copyright infringement
claim.
9
majority opinion concludes otherwise, and because it creates additional hurdles to the
prosecution of those who copy child pornography, I dissent.
CORRIGAN, J., concurred with YOUNG, J.
10
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