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October 27, 2009

The latest (beneficial?) litigation front in child porn downloading battles

I just found this effective local article discussing what is becoming an important and very interesting new front in the battle over child porn prosecution and sentencing.  The piece is headlined "Victim of child porn seeks damages from viewers," and here are excerpts:

The Misty series is one of the most popular and readily available kiddie porn videos on the Internet. It's considered a collector's item among pedophiles. Downloading it is a felony. Amy, now 20, remains traumatized by the crimes but became devastated upon learning they have been distributed worldwide. Officials have identified 750 individuals who possess the Misty series, but they believe tens of thousands of copies are out there.

In a novel approach to getting help, she and an attorney have begun petitioning federal courts for restitution against anyone convicted of possessing the Misty series....

The Violence Against Women Act of 1994 includes a section requiring restitution for victims of sex crimes. Whether that extends to defendants convicted of downloading and viewing child pornography remains a hotly contested question across the country. Some judges have awarded Amy millions; others have given her nothing.

Amy, who lives in the Northeast, seeks restitution for physical, psychiatric and psychological care, occupational therapy, transportation, housing, child care, lost income, attorneys' fees and other losses that might result from the crimes that have occurred.  She has described her horror in a letter to courts [which is available here] where she is seeking restitution....

Even though the restitution law has been on the books for 15 years, no one tried to collect from defendants who downloaded and viewed the videos until this year.  Those who produced the videos, such as Amy's uncle, have long been held accountable for payments to the victims. 

Only recently has the Department of Justice begun notifying victims such as Amy by letter that they could be entitled to restitution. More than 2,600 child victims have been positively identified.  Amy and another victim who was brutalized on film, in what's known as the "Vicky" series, began filing requests for restitution earlier this year.

In 20 cases, they have had mixed results.  A federal judge in Florida ordered a defendant to pay Amy $3.2 million, nearly the full amount she sought based on estimates for lost wages and mental health treatment for the rest of her life, but that case is on appeal.  Even if she wins, the defendant, James Freeman, is serving a 50-year prison term and has few assets.

Some child pornography defendants, such as Freeman and Norfolk's Shon Walter, who is serving 23 years in federal prison for looking at kiddie porn, are serving more time than Amy's uncle.  The uncle, convicted of repeatedly raping Amy, filming the attacks and selling the videos, is eligible for parole in 2011 after serving a minimum of 12 years.

Another judge in Florida awarded Amy her full $3.6 million request, but that case is also on appeal.  Most judges awarded Amy and Vicky minimal damages of between $1,000 and $3,000.  Federal judges in Oregon, California, Hawaii and Arkansas and in the Alexandria federal court denied restitution awards for Amy and the Vicky series victim.  The Arkansas judge found that there was no reasonable way to assess a restitution amount, that the victim was not identifiable and that there was no proof of a "causal link" between viewing the images and specific injury to Amy.

The government has appealed that case, which could set up a showdown at the U.S. Supreme Court over the conflicting rulings. 

As regular readers know, I am generally a fan of financial penalties as an alternative to long imprisonment terms.  Consequently, my first instinct is to be support of efforts by child porn victims to seek restitution awards from even those who only download these images.  That said, I do not think it makes much sense for individual downloaders to be on the hook for huge restitution payments. 

Moreover, I hope federal judges eager or inclined to award restitution in this kinds of cases ought also to seriously consider short prison sentences in service to the provisions of 18 USC 3553(a)(7), which require a judge to consider the "need to provide restitution" to victims at the time of sentencing.  It seems obvious to me that long prison terms necessarily will diminish the ability of a defendant to be able to make reasonable restitution payments.

Some related recent federal child porn prosecution and sentencing posts:

October 27, 2009 at 10:43 AM | Permalink

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Comments

Say an adult model contract was never signed. Say the pictures in the fashion magazine are humiliating to the model, showing her with funny bad hair. People buy the fashion magazine containing the pictures that are unlawful, having no consent, being humiliating. Does the reader of the magazine have a duty to the mistreated model? Where is the precedent for such a duty?

Posted by: Supremacy Claus | Oct 27, 2009 11:50:59 AM

Say the security camera of a convenience store shows the clerk getting shot over a bag of chips. This video is very mentally traumatic to the clerk. It spreads around the world. Does the clerk have a cause of action against the million people who saw it on Youtube and downloaded it for better viewing latter?

Say, an embedded reporter records the blasting of a Taliban fighter at close range, or the capture of a terrorist leader in his underwear, and his getting slapped around. The terrorist has PTSD as a result of this encounter. Can he sue the reporter, and the readers of the reporter for past and future care? What about other news outlets republishing the photos and their readers?

The question is whether viewers who pay after the damage has taken place have caused the prior damage?

Posted by: Supremacy Claus | Oct 27, 2009 12:06:54 PM

I trust you will not mind, when, many people sue you, for downloading, owning and looking at images of their *alleged* suffering or of the deaths of people, by their families (from the media, texts, etc)?

NLO

Posted by: Dr Nigel Oldfield | Oct 27, 2009 12:47:55 PM

In a case called St v Betnar, the Oregon Court of Appeals looked at -- and avoided ruling on -- who, if anyone, is a victim under Oregon statutes in downloaded child porn (aka "encouraging child sexual abuse".)

"The issues raised by the parties' arguments is how many victims were involved in defendant's crimes. That is, it is not clear whether--when multiple charges are based on images of different children--ORS 163.684 contemplates that there was one victim or more than one victim, or whether the statute is intended instead to promote the general welfare of children, rather than to address a criminal act committed against a particular person. Because ORS 163.684 is subject to all of the above interpretations, it is not clear which subsection of ORS 161.067, if any, governs the merger issue in this case. No Oregon case has addressed that issue, and the answer is not obvious. Because that point of law is reasonably in dispute, the trial court did not commit plain error in entering separate convictions."


Posted by: Ryan S | Oct 27, 2009 1:52:29 PM

My previous thoughts while dreaming of potential rent seeking opportunities as a feminist lawyer would be that this would be based more on a copyright and right to publicity/false light analysis. The argument for damages would be strongest in the case of production and distribution for consideration and weakest in the case of mere possession. In fact, I would argue that no more than nominal damages should be allowed in cases of possession but in the case of distrubtion for consideration and especially production heavy damages should be allowed.

My belief is that this is another case where they are using "restituion" solely as a substitute for what are actually civil damages. My belief is that the proper way would be to then use the most closely approximate analysis for what the appropriate tort action would be - that would be copyright law statutory damages which at least used to be $500 under the Berne Convention (that is an old figure and I believe it has changed) than add in a nominal amount for the tort of invasion of privacy. Anything more than that would create an unwarranted windfall for the victim.

Posted by: virginia | Oct 27, 2009 2:50:09 PM

Virginia: You are saying, the producers infringed on the child's image without contractual consent. I doubt anyone would dispute that.

What about the purchasers of the depiction? Are they like music downloaders, owing $250,000 for each song downloaded?

Copyrights and patents are a lawyer scam, and should be criminalized, but leave that argument aside. Assume, they are legitimate.

Posted by: Supremacy Claus | Oct 27, 2009 6:17:55 PM

virgina. The problem here is that the picture is not a legal picture to begin with. The picture can't be copyrighted and thus there can be no copyright violation.

The idea is plain silly and any judgments in favor of the victim do not reflect a rational law. I find Doug's position to be most amusing. Apparently he thinks that the right solution is shorter prison sentences in exchange for a life of indentured servitude. Why stop there. Why not bring back slavery. Hey, it's not the color of your skin it's your sexual preference.

SC. Please stop talking to yourself.

Posted by: Daniel | Oct 27, 2009 6:43:56 PM

And even if copyright could somehow play into these cases that right would belong to the original abuser unless there were some kind of forfeiture undertaken. And I seriously doubt it would then be assigned to the victim.

Also, do these multimillion dollar verdicts intend to represent the whole of the harm the victim experienced? If so could the offenders ordered to pay millions go after the offenders ordered to pay nominal damages under some theory of apportioning liability?

I have a very hard time seeing how a third party possessing the images leads to such high damage figures, the nominal damages rulings seem much more reasonable. Now, if such a ruling were entered against the original abuser that might be different.

Posted by: Soronel Haetir | Oct 27, 2009 7:36:58 PM

I just thought virginia was a brilliant issue spotter.

Posted by: Supremacy Claus | Oct 27, 2009 8:37:31 PM

Soronel and Daniel, the illegality of the images would not effect the availability of the tort actions for violation of the right to privacy-false light and the right to publicity. Thus, the argument can be made that in the interest of judicial efficiency that because there is an available tort action for damages that a restitution action within the criminal case is desirable (as opposed to a separate tort action).

I looked at copyright as a possibility for a couple of reasons. 1 is that under the Berne Convention, the notice and filing requirements are abolished - thus, the previous bar to copyrighting illegal material which is that no one would claim authorship and file papers claiming so is gone. Thus, while its been a while since I last looked at the Copyright Act (as modified by the Berne Convention Implementation Act), I do not see why the illegality of the material would make a difference - it would still be subject to copyright. Even your postings in this comment section are considered under current law to be copyrightable material. 2 - arrests for child pornography traditionally result in a seizure of material - why not in the case of creators seize the copyright acts and assign them to the government for the benefit of known victims as a policy? 3 - it is probably the best available comparison for the situation involving the victim of child pornography production in that unauthorized images of them taken in private were distributed (admittedly that is more based on the right to publicity and invasion of privacy/false light). 4 - the minimum statutory damages (which as of 2000 were $500) seem to reflect what would be a fair amount of restitution, even if it is not precisely for a copyright violation. I really see copyright analysis more as a way of setting damages for the invasion of privacy/false light and right to publicity claims.

I don't know, it was more a random thought wondering why the children who appear in child pornography don't sue the producers and distributors and possessors - I believe that federal and state law rights would make such an action possible. I really see the copyright aspects as more of a mechanicism for setting the amount of tort damages or restitution rather than precisely saying that the victim owns a property right in the image (although it may not be a bad idea to create such a property right as a way of providing a system of restitution and compensation for known victims).

Posted by: virginia | Oct 28, 2009 10:32:16 AM

I'm not aware of such damages for the possessing party of copyright violation, only the producer./distributor. Certainly all of the cases I've seen were going after whoever made the material available, not the reci[pients.

As for illegal material not being copyrightable I would think that would be similar to there being no property interest in contraband.

Posted by: Soronel Haetir | Oct 28, 2009 1:30:07 PM

"I'm not aware of such damages for the possessing party of copyright violation, only the producer./distributor. Certainly all of the cases I've seen were going after whoever made the material available, not the recipients."

The RIAA has definitely taken the position that merely downloading music from the internet without paying is copyright infringement and the courts have thus far agreed with them. In that case one would presume that the images were either created by the possessor or acquired via download or purchase. Thus, there would be an act of infringement in the act of downloading the picture. Like the RIAA lawsuits, many of the recent cases are based on peer to peer networks where one is presumed to both distribute and acquire material.

"As for illegal material not being copyrightable I would think that would be similar to there being no property interest in contraband."

Here is a hypothetical to show why that is not true: A has illegal drugs in her house. B breaks into A's house and takes nothing but the drugs. B is still guilty of burglary and larcency, unless B is a police officer with a lawfully issued warrant. A does has possessory interest in the drugs against the rest of the world, other than lawful authorities.

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