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ECSA: downloading is not duplication

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by: Ryan • April 13, 2012 • 2 comments

In State v. Urbina, the defendant raised the issue of whether downloading something from the internet -- using a peer-to-peer network -- constituted "duplication."

"Duplication" would elevate the crime of Encouraging Child Sexual Abuse from the second degree to the first degree.

The issue was unpreserved at the trial court, and therefore the COA did not decide the issue. But the Court wrote enough to give a pretty good idea where it was likely to end up:

The question whether a person "duplicates" child pornography within the meaning of ORS 163.684 by downloading videos from a peer-to-peer network is one of first impression in Oregon--and the answer is not beyond dispute. To begin with, defendant's analogy is unhelpful; downloading a file from a peer-to-peer network is not like simply picking up a magazine. Rather, there is evidence in this record that, when defendant double-clicked on the file names that resulted from his queries, he requested and received digital copies of videos that were present on other computers in the peer-to-peer file-sharing network. That is, after he downloaded the videos, he had his own copies of them, which he could then display on his own computer whenever he wanted, or could share with others. That type of a file download from a peer-to-peer network is, at least arguably, more than "viewing" and instead constitutes "duplication" within the ordinary meaning of the term. See Webster's Third New Int'l Dictionary 702 (unabridged ed 2002) (defining "duplicate" as "to make double or twofold" and "to be or make a duplicate, copy, or transcript of"). Furthermore, there is a credible argument that downloading a video to a personal computer, which can then be viewed independently of the original video or shared with others in the peer-to-peer network, is precisely the type of proliferation of child pornography that the legislature intended to combat in ORS 163.684.

I believe the Court is headed in the wrong direction, and I will briefly address why. Keep in mind that this discussion is going to focus on the ECSA statute as it existed prior to the 2011 changes.

(1) In light of Ritchie and Barger, digital images have to be downloaded to be possessed. It naturally follows that something more is necessary to constitute duplication, since it marks one of the differences between ECSA II and ECSA I.

(2) Relatedly, I submit that duplication must start with possession. You have something, you duplicate it, and now you have two of it. There is something a little bizarre about duplicating something and still only having one of it. And the requirement that you possess it before you duplicate it is not inconsistent with the layperson definitions of duplication that the Court notes.

(3) While the defendant's analogy to picking up a magazine might not hold, a better analogy is buying a magazine subscription. Let's assume you order -- online -- People magazine for all of 2012. Let's further assume that every time there is a subscription increase, the publisher prints another copy to satisfy demand. When you receive the 2012 edition of "The World's Most Intriguing People" in your mailbox, have you duplicated it?

And while peer-to-peer networks may be exactly the kind of distribution network the legislature wanted to discourage, that would have been just as true for child porn magazines in the pre-digital era, but that wouldn't mean subscribing to the magazine equals duplicating it.

As always, I encourage preservation of this issue, as well as all the other issues related to ECSA charges ( Mallory and criminal episodes, the constitutionality of the ECSA statute, merger , etc.)