In July, a Nebraska judge awarded a child pornography victim just $2500 in restitution. Despite un-refuted losses of over a million dollars, the district court concluded it would be “gilding the lily” to give the victim the "full restitution" which Congress made mandatory in Joe Biden's Mandatory Restitution for Sexual Exploitation of Children Act.
The victim in this case, United States v. Robert M. Fast, was ten years old when her father directed and produced child pornography videos using a script which he created with his daughter in the staring role. The videos depict a young girl being bound, raped, tortured, and sodomized. Some of the videos have sound. All of them are highly sought and traded on the Internet.
The United States Attorney, which initially supported the victim in the district court, was instructed by the Justice Department in Washington to join the convicted child molester defendant in asking the Eighth Circuit to dismiss the victim's appeal with prejudice and deny oral argument.
Although the Justice Department acknowledges that "the evidence in this case clearly established that [the victim] was harmed by that dissemination" of her child sex abuse videos, "the district court’s determination and amount of restitution awarded…was appropriate and should be affirmed by this Court."
Shockingly, the Justice Department's position in this and many other cases currently on appeal is that—despite a federal law which makes "full restitution" "mandatory"—child pornography victims are only entitled to pennies on the dollar for their public rape and sexual exploitation, their appeals should be dismissed and their voices silenced.
Yesterday, in Capital Records v. Thomas-Rasset, the Eighth Circuit held that "the protection of copyrights is a vindication of the public interest” in approving a total of $220,000 in damages for 24 music tracks shared on the now-defunct Kazaa service. (Mostly ’80s and ’90s, including Def Leppard’s “Pour Some Sugar on Me,” Journey’s “Don’t Stop Believin’ and Green Day’s “Basket Case.”)
Damages in the case varied from a high of $1.5 million to a low of $54,000 (which is still way higher than $2500). The defendant argued unsuccessfully that the damages were excessive. They could have been much higher since there were approximately 1,700 music files in the defendant's shared Kazaa folder.
The companies involved in the litigation include Capitol Records, Inc., Sony BMG Music Entertainment, Arista Records LLC, InterscopeRecords, Warner Bros. Records, and UMG Recordings Inc.
Not surprisingly, large corporate interests have much greater influence and support in Washington than sexually abused children.
In Capital Records v. Thomas-Rasset, the Justice Department filed a brief supporting the recording companies' request for $222,000 in damages. The Government argued that "the legislature must be accorded wide latitude in fixing the appropriate penalties, and that the validity of the penalty must therefore be evaluated with due regard for the legislature’s power to adjust the amount to the public harms caused by the statutory violation."
In other words, according to the Government, the "full amount of losses" which the legislature made mandatory in the Mandatory Restitution for Sexual Exploiation of Children Act really only translates to a few thousand dollars, while "the public harms caused by the statutory violation" of the Copyright Act is worth hundreds of thousands of dollars!
While the value of a legal sound track is worth almost $10,000, the value of an illegal child sex abuse image is one-forth that.
Who is harmed more by the unstoppable distribution of contraband on the Internet, child sex abuse victims or the big recording companies? Sadly, according to the Justice Department, Capital Records is entitled to way more than children.
The Fast appeal is currently pending on the Eight Circuit's docket. Let's hope the "public harms" caused by the illegal downloading of songs translates into equal justice for sexually exploited children.