Oregon appellate court holds that downloading CP from Internet is distribution/production

In Oregon v. Pugh, No. A148574 (Or. Ct. App. 2013), the Court of Appeals of Oregon held that the act of downloading an image of child pornography from a webpage did not fall under the state's child pornography possession charge but was instead distribution/production.

The Oregon child pornography statute divides the crime into two degrees: first degree is essentially for production and distribution and second degree is for possession. One of the acts leading to a first degree charge is when one "knowingly ... duplicates" child pornography. Therein a prosecutor found an important loophole that mostly invalidates the second degree charge.

In the current case, the defendant was charged under the statute for first degree encouraging child sexual abuse because he had downloaded images of child pornography from the Internet. On appeal the defendant argued (in the words of the court):

[D]ownloading child pornography is neither production nor distribution and, without evidence that he intended to distribute it, the evidence was insufficient to prove he committed the first-degree offense. At most, he asserts, the state's evidence can only prove that he knowingly possessed child pornography in violation of second-degree encouraging child sexual abuse.... [D]ownloading is the process by which a person obtains possession or control of an image offered on the Internet by another computer user and is the tangible equivalent of a consumer ordering a photograph from a mail-order catalogue. According to defendant, duplication does not occur until after the computer user downloads the file and e-mails a copy to another person, uploads a copy to the Internet, prints the image, or copies it onto a CD or DVD.

The Oregon Court of Appeals did not buy the argument and does not appear to have actually seriously considered it. As the court saw it, downloading a copy was duplicating it because there was one file and then there were two. Thus, the defendant does not only possess the image, but he is also a distributor (to himself).

Thus, the interesting question is what types of situations would fall under the second degree statute. A defendant receiving in the mail printed images of child pornography should. It wouldn't be first degree until the defendant copies the photos on a copier. Likewise, receiving images via e-mail would likely be second as well. But if the defendant first downloaded the images to his computer after opening them, it could be first degree. Viewing repeatedly on a webpage would be second degree; downloading for offline viewing would be first (depending, of course, on some interesting possible arguments concerning cache).

Regardless, it seems as though the term "duplicates" would normally mean making multiple copies, requiring the defendant to first possess one and then making copies of that original.