ST. LOUIS, Mo. — The 8th Circuit Court of Appeals has upheld the conviction of a Missouri man on a charge of publishing a “notice” offering to distribute child pornography through his use of the Kazaa file-sharing software, despite the defense’s claim that the ‘notice’ in question did not satisfy the definition of that term under the relevant statute.

At issue is how to properly interpret 18 U.S.C. 2251 (d), which makes it a crime punishable by a minimum sentence of 15 years when a person “knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering…. to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct.”

In the case at issue, Walter Sewell, a 43 year-old Missouri pharmacist, was indicted on a variety of counts, including distributing and attempting to distribute child pornography, possession of child pornography and publishing a notice offering to distribute child pornography.

Sewell pleaded guilty to acquiring and distributing child pornography via Kazaa, as well as to one count of publishing a notice, but preserved his right to file a motion to dismiss that charge on appeal. A district court rejected Sewell’s motion, leading the matter to the 8th Circuit.

In the appeal, Sewell’s attorneys argued that his conduct “did not satisfy all of the elements” of the statute under which he was charged.

In its motion to dismiss the "notice" charge, the defense asserted that in downloading child pornography via Kazaa and sharing the files with other Kazaa users, “he did not cause to be published a notice seeking or offering to receive, exchange, buy, produce, display, distribute, or reproduce child pornography.”

Noting that Sewell had pleaded guilty to the possession and distribution charges, the defense stated that the “sole question raised in this appeal is what constitutes the separate offense of publishing a notice or advertisement seeking or offering to receive, exchange, buy, produce, display, distribute, or reproduce child pornography, which carries a mandatory minimum sentence of 180 months.”

“Does every person who distributes child pornography by sharing files via a file-sharing program such as Kazaa also publish a notice criminalized by [the statute]?,” the defense asked in its brief. “Sewell contends that it does not.”

The court rejected Sewell’s argument, and concurred with the prosecution that Sewell “used Kazaa to cause a notice to be made, and that ‘the notice offered to display, distribute, and reproduce’ child pornography in interstate commerce,” adding that the context of the notice “clearly demonstrates that Sewell was offering to distribute child pornography.”

In reaching its decision, the 8th Circuit relied in part on a previous decision issued by 10th Circuit Court of Appeals in the case U.S. vs. Shaffer, in which the 10th Circuit established what the 8th Circuit termed an “apt analogy” for the conduct in which Sewell engaged.

“[A] Kazaa file’s 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,” Judge Roger L. Wollman wrote in the 8th Circuit’s decision, referencing the analogy first employed by the 10th Circuit. “No one would stop at the station without the sign telling them where the gas station is; the context of such a sign tells motorists that the owner of the station is offering to distribute fuel to them.”

The defense did not find the self-serve gas station analogy persuasive, and argued in its brief that the Shaffer case was fundamentally different from Sewell’s.

“Where is Sewell’s roadside sign offering files for sharing?” the defense asked in its brief. “All that Sewell had on his computer was files bearing file names and embedded descriptions. Sewell’s alleged ‘notice’ did not seek or offer to receive, exchange, buy, produce, display, distribute, or reproduce child pornography. The fact is, the Kazaa file-sharing program makes it unnecessary for a Kazaa user to make any offer or solicitation.”

The defense further argued that the “legal requirement of a notice or advertisement ‘seeking or offering’ child pornography cannot be inferred from the fact that both the distributor and recipient use the Kazaa program for purposes of sharing files, nor can this legal requirement be dispensed with outright just because the Kazaa program obviates the need for such notice or advertisement.”

“A file description is not the same as an offer or solicitation,” the defense argued. “[The statute] criminalizes the making of an offer or solicitation, not the labeling or identification of sexually explicit images.”

The court rejected the defense argument, with Kazaa’s nature and functionality figuring heavily into its reasoning.

“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,” Wollman wrote. “Based on the notice the searcher has now been given regarding what other users are offering, the searcher can then choose to download the child pornography to his computer. 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.”

Adult industry attorney Rob Apgood told XBIZ that he thought the court’s ruling in the case was correct, and that the self-service gas station analogy was “pretty persuasive.”

“If I were the defense attorney in this case, I would probably make the same argument [as Sewell’s attorneys],” Apgood said. “But I would do so with barely a straight face on, because I would know that it was not likely to be well-received by the court.”

Earlier this week, Sewell’s attorney Eric Chase told reporters that he would petition the U.S. Supreme Court to review the case. Chase was not available for comment at press time.