LANSING – In a split decision, the Supreme Court overturned lower courts Friday by finding that copying pornographic images of children to a disc does not constitute manufacture.
Brian Hill was convicted of making or producing child sexually abusive materials for copying images form the Internet and saving them to compact discs.
Hill argued that he had not intended to distribute the discs, so the charge should only have been knowing possession. Both the Muskegon Circuit Court and the Court of Appeals disagreed.
But Justice Stephen Markman, joined by Chief Justice Marilyn Kelly, Justice Michael Cavanagh and Justice Diane Hathaway, agreed (People v. Hill, SC docket No. 138668) with Hill and sent the case back for a new trial.
Markman said the law as written clearly intends “produces or makes” to be the person who originates the material or those who distribute it, not a person who creates a new object by copying that file to another disc.
“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,” he said.
Justice Robert Young Jr., joined by Justice Maura Corrigan, argued in his dissent that the law does anticipate assessing the higher penalties to someone who copies the material, not just the original creator, and the prosecutor should not have to prove the person’s intent for the use of those copies.
“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,” he said.
Justice Elizabeth Weaver, in a separate opinion, agreed with Young.
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