Child Porn and P2P File-Sharing Program: Just Like Facebook?

The Sixth Circuit Court of Appeals affirmed a two-level sentencing enhancement to a knowing possession of child porn conviction this week, finding that a district court had properly applied the sentencing enhancement for distribution because the appellant shared the images through a peer-to-peer (P2P) file-sharing program on his computer.

Tommy K. Bolton pleaded guilty to knowing possession of child pornography, which he downloaded using Ares, a P2P file-sharing program. He was sentenced to six years in prison and eight years of supervised release. While Bolton's sentencing calculation included a two-level enhancement for distribution, the total term was below the guidelines imprisonment range of nine to ten years. Nonetheless, Bolton appealed, challenging the procedural reasonableness of the sentence enhancement on the grounds that he didn't intentionally distribute child pornography.

Bolton claimed that the district court concluded that his use of a P2P file-sharing program was sufficient by itself to prove distribution, and argued that most courts have required that the government independently prove that the distribution was intentional or at least knowing. To support his position, Bolton pointed to the district judge's comment, "I think that nowadays everybody knows that that's what [P2P file-sharing programs] are about ... I think that people nowadays know that if they have these programs, they're sharing, even though it's difficult and you have to go through all the steps. It's just like Facebook."

For a second, Bolton had the Sixth Circuit Court of Appeals on his side. The court agreed that the judge's explanation seemed to indicate that the court believed that Bolton's use of a P2P file-sharing program, standing alone, was adequate to support the distribution enhancement.

The district court's explanatory statements, however, tipped the scales of justice against Bolton. The statements demonstrated that Bolton understood how P2P file-sharing services worked, and had even taken steps to substitute one service for another on his girlfriend's computer.

After considering the government's argument that the sentencing enhancement provision does not have an intent, knowledge, or mens rea requirement, as well as opinions from the Fourth and Seventh Circuits that the government may prove distribution merely by showing that the defendant knowingly used a P2P file-sharing program to download child pornography, the Sixth Circuit upheld the sentence.

One interesting thing about this decision is the potential for a defendant's understanding of P2P file-sharing services to establish intent. In light of increased efforts to penalize distribution of copyrighted material through file-sharing services, we're curious to see if courts will take the position that a person who knowingly downloads protected material through a P2P service also understands that she could be distributing the protected material. After all, people nowadays know that if they have these programs, they're sharing.

Or is it not just like Facebook?

Related Resources:

• U.S. v. Tommy K. Bolton (Sixth Circuit Court of Appeals)
• No Sentencing Guidelines Departure for Military Service (FindLaw's Sixth Circuit blog)
• Play it Again: Court Upholds $675K Judgment Against Joel Tenenbaum (FindLaw's First Circuit blog)