Yes, but the harm done by that is not to the individual in the tape (who is now an adult), but to the future victims of child porn. A crime against society rather than an individual tort.
I think you’re confused as to what categorical, and thus uncategorical, mean.
I don’t mean this as a usage nitpick.l Your post reads as if you take uncategorical to have the meaning I quoted, in which case it makes sense as written. But if you meant uncategoricalto have the opposite meaning (i.e., not categorical; with reservations; conditional; indirect) I would like to ask what reservations you have to your Yes.
Would Amy have a copyright claim for the images and the films? Presumably, both she and the Uncle would be the copyright holders, since they created the products jointly. But since she didn’t consent, I could see a court awarding full ownership to Amy. That would mean Amy could sue for unauthorized distribution, just like the MPAA or RIAA do.
I have no problem if the sum total is enough to allow Amy to retire on. I’m not even sure why that could be a problem. I can’t imagine setting criminal fines with the idea that the most important thing to make sure the injured party still needs to work.
Interesting question. Not to divert attention away from the original question, but what about Internet footage of other crimes? There are countless videos of people getting beaten up on the web; should victims of physical assault be able to sue people who have downloaded the video? If not, what makes it different?
Note: I’m not suggesting these crimes to be equal, just curious where this approach might lead.
To add to the list of unintended bad consequences, perhaps (not for the squeamish):
a pedo that mades a video would kill the child so that the child couldn’t later recover from viewers. Just to make this worse (as if it could get worse, really): perhaps a certain distributor of videos would be known to produce videos that don’t carry the liability of possible restitution in the future. Note: the pedo’s strategy may not work, because the kid’s parents could probably recover, but the pedo may do it anyway out of an erroneous belief that it would reduce liability.
If this recovery theory were used on a wide scale, one way to implement it would be to use a fund like those used in mass tort cases: pedos that watch videos pay into the fund, and victims receive payouts from the fund (with both sides of the equation determined using some schedule). This would help with the clourt clog issue mentioned above.
You sure you want to defend that position? That only the initial physical act constitutes abuse? That the existence and promulgation of the video, which make it impossible for her to put it behind her emotionally, means nothing?
I heard this story on NPR here:
http://www.hereandnow.org/2010/02/rundown-223-2/#2
They briefly interviewed both attorneys involved.
I was left thinking well that sucks. It seems to be a complex issue without a simple solution.
The attorney for Amy, James Marsh, is arguing she is entitled to a total sum of 3.5 million dollars. That would be between all the people who owned and distributed her images. I tend to be on the side of her entitlement to a specific sum of money. The problem comes about in collecting that money where over a thousand people could be guilty of possessing the images. Who should be responsible for ensuring its paid.?
This is something anyone a victim can do isnt it?
I cant see why you’d create a special category where the person couldnt do it just for this crime.
As far as the ‘sociopathic child for profit’ scenario, the sociopaths in that scenario are really the parents and my only concern would be that they get prosecuted as well. And the amount of compensation could take into account the original abuse circumstances if needed.
For assaults being pictured, they generally arent necessarily considered an assault themselves, so it would be more of a civil case Id think? At least for people not directly involved in the incident, because thats not proscribed imagery in the same way child porn is.
Otara
I’m very skeptical of copyright law as it’s been applied in recent years, but for the sake of consistency you make a good point. If the RIAA can collect $100,000 per song illegally downloaded, surely under the same logic this woman should be able to collect money as well.
That’s not it. A victim is entitled to restitution from the person that committed the crime that caused the harm. In this case, that would be the original abuser. Professor Colb and Amy want to extend that to anyone that possesses pictures/video of the crime, many years after the fact.
By their logic, anyone that has ever seen the Zapruder film owes money to JFK’s estate.
Sounds pretty sensible to me. And $10 is something that could reasonably manage to get collected from almost everybody that is reasonably middle classed, even if it means auctioning off all their belongings as they are sent off to jail.
I may be misinterpreting what you are saying, but how is it different? A person could video child pornography (a crime) being committed or a person could video someone being beaten (a crime). They could put both videos on the internet. One would bounce around on web sites (maybe even on a very public one like youtube) for years with many viewers but otherwise little notice while the other would result in whoever downloads it being financially liable to the abused.
What is the distinction between the two? If we agree that those who watch child pornography should be financially liable, shouldn’t those who watch physical assaults also be liable?
“Professor Colb and Amy want to extend that to anyone that possesses pictures/video of the crime, many years after the fact.”
Which is also a crime. If it wasnt Id see your point.
Basically the argument seems to be that CP is ‘special’ and in that case the person isnt a victim, only the ‘market’ is.
I see that as a pretty tough case to make.
Otara
“A person could video child pornography (a crime) being committed or a person could video someone being beaten (a crime)”
But society has decided that one of those acts in itself is a crime, which changes things.
Once that has been decided, one decides who the victim is. The idea that the person whose picture was taken is not a victim, is, well a wee bit of a reach.
Generally society does recognise a victimisation aspect of an assault being publicised, but it is overridden by the needs of free speech etc. No such need is present here as the act in itself is illegal, allowing action to be taken without freedom of speech being threatened.
Otara
That just makes him liable for murder. Not really a step up compared to owing money.
A person guilty of pederasty is already guilty of a crime. If he felt that killing the child was the safest way to get rid of all evidence, he’d be doing it anyways.
In NY v. Ferber, the Supreme Court relied on both kinds of harm (to the victim and to the continuation of the market for child pornography) for finding possession of child pornography can be made illegal. As the Supreme Court said in Ashcroft v. Free Speech (the computer generated child pornography case):
" Ferber upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were “intrinsically related” to the sexual abuse of children in two ways. Id., at 759. First, as a permanent record of a child’s abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each new publication of the speech would cause new injury to the child’s reputation and emotional well-being. See id., at 759, and n. 10."
In addition to that, each possession is a further violation of the privacy rights of the child.
I don’t think you can draw a line at the time of the physical rape and decide that the harm ended then and there.
Yes, I see your point – thanks for clarifying.
In addition to the invasion of privacy, viewer of child porn are also providing a financial incentive for creating and distributing it. I would argue that they are essentially paying other people to rape childen and photograph it for them. That makes them both civilly and criminally liable.
So imagine another child porn victim who had the same experience as Amy 10 years ago, but her images were only distributed on paper, and were successfully all gathered up in a raid 9 years ago, so no copies escaped. Does it seem reasonable that 10 years later Amy gets millions of dollars and this other poor victim, who seems to have suffered just as much in most ways that matter, gets nothing?
It also seems weird to have a situation in which there’s a strong financial incentive for the victim to further “victimize” herself. Obviously I can’t really envision what it’s like, but if it was years in the past and I’ve already suffered the initial horror, and it occurs to me that I can upload this video as many places as I can find, get a huge financial payoff each time, but of course doing so arguably victimizes future victims who suffer from the increased demand… well, that seems like a potentially problematic situation for the law to create.
It would be illegal for them to upload the images themselves.