This bench memorandum details the issues from both the plaintiff's and defendant's perspective in a case involving computer-generated child pornography available on the Internet. The following is a brief statement of the facts: The defendant, George Gress, owns a photography studio in which he specializes in photographing child models for department store and mail-order catalogues. Gress is also an amateur computer programmer and operator ("sysop") of an electronic bulletin board system (BBS) that is accessible over the Internet. Appearing on Gress' BBS is an interactive sex program titled "Kid Stuff," which displays images of young children and allows users to create scenarios depicting the children performing various sexual acts. The plaintiffs, 15-year-old Dede Domingo and her parents, sued Gress when they learned that images of Dede from a prior modeling session at Gress' studio appeared on "Kid Stuff." Dede learned of her presence on "Kid Stuff" when her 16-year-old friend, Johnny Sawyer, logged on to the program and saw images of her. The Domingos sued Gress under the fictional State of Marshall's child pornography statute, which prohibits the creation or dissemination of child pornography. The statute states that a person "creates Child Pornography when he or she . . . photographs, or otherwise uses, depicts, displays or portrays by means of any visual medium or reproduction . . . any child whom he or she knows or reasonably should know to be under the age of eighteen, actually or by simulation engaged in any [pornographic] act or conduct." The statute states that a person "disseminates child pornography to a minor when he or she . . . exhibits . . . to anyone under the age of eighteen years, any [pornographic] material or performance." In his defense, Gress is likely to argue that he cannot be liable under the child pornography statute because he did not "create" the pornographic images at issue. Rather, he merely provided the means by which the users of "Kid Stuff" could position the images of children in sexual scenarios. Thus, if anyone should be found liable under the statute, it should be the individual users of "Kid Stuff." Furthermore, Gress may argue in his defense that he did not violate the statute because he provided adequate means to prevent children from seeing "Kid Stuff." Specifically, he required users to verify their age by mailing him a photocopy of their driver's license in order to access the site. Johnny Sawyer, as it happens, was able to flout this "safeguard" by sending in his older brother's driver's license. The Domingos are likely to counter Gress' defense by relying on Stearn Elec. v. Kaufman, which held that the interaction of an end-user with a video game does not transform the end-user into the "creator." Rather, Gress should be considered the "creator" because he created every tool that allowed the users of "Kid Stuff" to view the child pornography. Furthermore, the Domingos may argue that Gress is responsible for the dissemination of the pornographic images because the preventative measures he took to prevent under-age users from logging on to "Kid Stuff" were inadequate, as evidenced by the ease with which Johnny Sawyer was able get around the supposed safeguards. Finally, the Domingos should argue that Gress should be held liable for the creation and dissemination of child pornography through vicarious liability. According to this theory, Gress, as the operator of the BBS, should be liable for all prohibited activity that occurs through use of the BBS. The case Kelly v. Grinnell indicates that Gress should be vicariously liable for providing the instrumentality that makes the production of child pornography possible.
Gary L. Gassman, 1994 John Marshall National Moot Court Competition in Information and Privacy Law: Bench Memorandum, 13 J. Marshall J. Computer & Info. L. 481 (1995)