Appeals court sides with prosecution in Kazaa porn case

Judges deny defendant's effort to overturn guilty plea over files found on P2P network

In Sewell's defense, his lawyer argued that the only thing his client did was to search for and download images containing child pornography. The files downloaded by Sewell from the Kazaa network came with descriptive fields that already included information that would lead a user to believe that the files contained child porn, said the lawyer, an attorney from California named Eric Chase.

"There is no evidence whatsoever, in any form, that Mr. Sewell created, edited or changed in any way any of these descriptive fields," Chase wrote in a court filing.

He also claimed that it was the Kazaa software itself that caused the files to be automatically placed in a shared folder for others to search for and view. Sewell didn't put the files there himself, Chase claimed.

"The defendant could certainly be prosecuted for the content itself, just as Mr. Sewell is appropriately convicted of the content of the images he possessed," Chase wrote. But, he added, it was a stretch to argue that Sewell's actions amounted to advertising the content of the files.

However, the appeals court for the Eighth Circuit rejected those arguments in affirming the trial judge's decision to deny Sewell's motion to dismiss the publishing notice charge.

"Kazaa's purpose is to allow users to download each other's files, and the purpose of the descriptive fields is to alert interested users to the content of downloadable files," U.S. Circuit Judge Roger Wollman wrote for the appeals court. "In the context of the Kazaa program, placing a file in a shared folder with descriptive text is clearly an offer to distribute the file."

Wollman added that the descriptive fields "are like a roadside sign to a self-serve gas station at which the owner need not be present to distribute fuel to passing motorists. No one would stop at the station without the sign telling them where the gas station is."

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