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MyraB
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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If a man used a hidden camera to videotape himself having sex

Resolved Question:

If a man used a hidden camera to videotape himself having sex with several women - in his private bedroom and theirs - and then uploaded these videos to youtube and vimeo social share sites, would it still be considered dissemination? His argument is that these videos were uploaded as "private videos," meaning only those with access to private link or to his private account would have access, and that the videos were not accessible to the public at large.

Wouldn't youtube / vimeo staff have access to these videos?

I am aware even taking such footage constitutes a felony, but am trying to get information regarding the full extent of the crime committed. If he were not trying to disseminate, why upload to social share sites in the first place?

What prior legal cases / precedent exists pertaining to any of what I have asked? I know it is illegal as per youtube law to post explicit content and he was in violation in doing even this. But I am specifically interested in the legalities of dissemination - - I believe that simply uploading to youtube and vimeo platforms, regardless of whether uploaded as 'private videos,' is not dissemination to an extent?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  MyraB replied 1 year ago.

Myra Bradwell :

Good morning. I am the expert who will be assisting you with your question today.

I have read your question and the conduct described - uploading a sex video to youtube - would be considered dissemination in every jurisdiction of which I am aware.

Customer:

Thank you so much, Myra! Can you cite a case precedent or a law?

Myra Bradwell :

Showing to one other person may be sufficient under certain statutes to constitute dissemination.

Myra Bradwell :

Do you know the statute that is at issue so that I could find precedent relating to that statute?

Customer:

The detail which makes my question more complex than just 'uploading to youtube' which I realize would be considered dissemination without a doubt is that these videos were uploaded into the user's 'private videos'

Customer:

The argument is that the user uploaded sex videos to his private youtube AND vimeo accounts. In youtube, private videos can still be shared with up to 50 users technically, and I would assume youtube personnel have the right to view and monitor these videos so they would be able to see the videos. I am looking for any legal case - in the United States or ideally New York - which involves youtube / dissemination

Myra Bradwell :

That it is a private account does not make any difference. For example, child pornography statutes consider dissemination where the image is shown to one other person.

Customer:

There is no evidence of showing to anyone. That is the problem.

Customer:

I am looking for any kind of evidence whereby uploading to youtube and vimeo social share sites - - even as PRIVATE videos - is dissemination.

Myra Bradwell :

Ok. I will take a look and get back to you. It may take a few minutes.

Customer:

I completely understand. It's very tricky.

Myra Bradwell :

I have a few leads but it will take me a while to process. You may want to come back later and check the chat. I'll post when I have some caselaw.

Myra Bradwell :

This case may be useful to you. In distinguishing distribution, the court stated in US v. Shaffer, 472 F.3d 1219, 1224 (2007), "Mr. Shaffer could have, but did not, save the illicit images and videos in a computer folder not susceptible to file sharing.   Likewise, he could have, but did not, activate the feature on Kazaa that would have precluded others from taking materials from his shared folder."


Myra Bradwell :

You can access the case through Google Scholar.

Myra Bradwell :

It's a 10th Circuit case.

Myra Bradwell :

In Massachusetts case, Comm. v. Rollins, 60 Mass. App. Ct. 153, 160 (2003) the court required purposeful intent for dissemination, stating, "none of the children at the bus stop, nor any other child, saw the content of the paper. That content was, therefore, not "disseminated" to them. Moreover, we do not think that the evidence is sufficient to support beyond a reasonable doubt a finding that the defendant intended the children to see it."

Myra Bradwell :

I will switch this to a Q&A format to better assist you further. Please feel free to continue to ask follow-up questions and I will respond promptly. Thank you.

Expert:  MyraB replied 1 year ago.
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Customer: replied 1 year ago.
Are there any court cases citing YouTube sex videos available? Specifically the distinction between public and private YouTube videos? Wouldn't any kind of uploading onto YouTube platform be considered dissemination? Specific court cases cited would be most useful.
Expert:  MyraB replied 1 year ago.
I have spent some time researching your question to find the precedent you are looking for, however, I've been unable to find a specific case with the same facts as the one you set forth. This is not unusual because criminal law is very fact dependent and the law involving social network sites continues to evolve.

That said, there are certain arguments that can be made from the cases and the law that does exist. Because there does not yet appear to be a case on point, arguments can be made both for and against a finding of dissemination in the scenario you describe.

Under the applicable NY statute Article 250.40 "disseminate" means to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person."

The statute you are trying to make applicable, Article 250.60 requires that a person "intentionally disseminates such unlawful image" ie. one created in violation of Article 250.50. Your question establishes that the image was unlawfully created leaving the issue of intentional dissemination.

The definition of dissemination in the statute requires that the image be provided, sent, transmitted "to another person." The uploading of the video to Youtube would satisfy the transmission part. The issue would be whether Youtube can be considered "another person." Another issue is that the statute requires "intentional" dissemination. Which leads to the arguments:

In favor of violation of the statute: Dissemination includes uploading to the third party carrier Youtube because people run Youtube and the person transmitting is aware that there are moderators. The terms of service indicate that the videos will be accessible by persons at Youtube. Although Youtube is an entity, people run it and see the videos. It is foresseable that actual persons will view the video. Analogies could be made to other crimes, such as exposure cases, which indicate that attempts at privacy are insufficient where it is reasonably foreseeable someone may see and does see the conduct.

Against violation of the statute: You need an actual other person to have received the video, the likelihood or possibility that someone might see the video is not sufficient for a violation. The statute requires an actual human recipient. The statute also requires "intentionally" and all you have here, at best, XXXXX XXXXX dissemination because the videos were set to private and not intended to be received or viewed by another person. Any ambiguities in statutes are construed in favor of the person charged.

I'm sorry that all I can give you are arguments and not a definitive answer or citation of specific authority that you are looking for, but that appears to be the state of the law at this point.
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 9 other Criminal Law Specialists are ready to help you
Expert:  MyraB replied 1 year ago.

Thank you for your positive rating. If I can be of further service to you on any related issues in your case, or with any other questions, please feel free to send questions directly to me at http://www.justanswer.com/law/expert-mbradwell. Thank you again.

MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 9 other Criminal Law Specialists are ready to help you

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