FILED JULY 23, 2010

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 138668 BRIAN LEE HILL, Defendant-Appellant.

BEFORE THE ENTIRE BENCH

M ARKMAN , J. This case presents the question whether a defendant who downloads child sexually

abusive material from the Internet and “burns” that material to a CD-R 1 may be convicted of violating MCL 7 50.145c(2), which provides that any person who “arranges for, produces, makes, or finances . . . any . . . ch ild sexually abusive material,” is guilty of a

1 CD stands for “compact disc.” A CD-R (compact disk-recordable) is a blank compact disc that an individual can purcha se and onto which pict ures, movie or video files, and various other digital images, inform ation, and data can be “burned,” or saved permanently, through the use of a computer . One definition of the term “burn” is “to record data on (a compact disc).” Random House Webster’s College Dictionary (2001). Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Marilyn Kelly Justices: Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway2 felony punishable by imprisonm ent for not more th an 20 years or wh ether the defendant may only be convicted of violating MCL 750.145c(4 ), which makes the knowing possession of child sexually abusive material a felony punishable by imprisonment for not more than 4 years. The Court of Appeals held that a defendan t, even if his inte nt in burning the prohibited images to a CD-R was to retain those images for personal use, may be convicted of the 20-year felo ny under MCL 750.145c(2). We respectfully disagree. MCL 750.145c has a graduated scheme of offe nses and punishments. It punishes (1) those who are responsible for the origination of child sexually abusive material (a 20- year felony), (2) those who are responsible for the distribution and promotion of the prohibited material (a 7-year felony), and (3 ) those who are responsible for the knowing possession of the prohibited material (a 4-year felony). From these three tiers of offenses and punishments, we conclude that the Legi slature did not intend the imposition of the same maximum punishment on a person who downloads a prohibited image from the

Internet and burns it to a CD-R for personal use as on the pe rson who is responsible in the

first instance for the creation and existence of the pornograph ic images of minors. The person who is responsible for bringing the pr ohibited images into existence is obviously more morally, and under the st atute, more criminally, cu lpable than the person who downloads an image and saves it to a nother medium for personal use.

We hold that when the te rms “produces” and “makes ” in MCL 750.145c(2) are

construed in accordance with th eir immediately surrounding text and with a view toward the statute’s overall organization, includi ng a graduated scheme of offenses and3 punishments, a defendant may not be convicte d of the 20-year felony when there is not proof beyond a reasonable doubt that he had a criminal intent to do something other than possess the CD-Rs for his own personal use. Just as a person who downloads a song

from the Internet and burns it to a CD-R is not considered to have produced or made a song, so a person who burns a prohibited imag e to a CD-R for his personal use has not produced or made the image. It is clear that the Legislature intended only that defendant could be convicted of the 4-year felony of knowingly possessing child sexually abusive material under MCL 750.145c(4). Those wh o copy or duplicate existing prohibited images for personal use do not produce or make child sexually abusiv e material under MCL 750.145c(2); rather, they are only in possession of it. MCL 750.14 5c(2) is primarily applicable to those who originate child sexually abusive mate rial. Therefore, we revers e in part the judgment of the Court of Appeals, vacate defendant’s convictions under MCL 750.145c(2), and remand for further proceedings not inconsistent with this opinion. 2

I. FACTS AND HISTORY As relevant here, defendant was charged with five counts of “arrang[ing] for, produc[ing], mak[ing], or financ[ing]” child sexually abusive material, in violation of MCL 750.145c(2), after a search of his two laptop computers and approximately 50

2 Defendant was also convicted of five counts of using a computer to commit a crime, MCL 752.796 and MCL 7 52.797(3)(f), and three counts of installing a device for observing, photographing, or eavesdropping in a private pl ace, MCL 750.539d. These convictions are not before us.4 CD-Rs found in his bedroom. After being b ound over for trial, defendant moved to quash the information with rega rd to these charges, arguing that the burning or saving of images or data to a CD-R does not rise to the level of producing or making child sexually abusive material. He further argued that the tr ansfer of images from the Internet to his computer’s hard drive and then to the CD-Rs constituted nothing more than the storage of data. Thus, he contended that he should only be charged with “knowingly possess[ing]” child sexually abusive material under MCL 750.145c(4) because he had not originated the prohibited images. The trial court denied this motion, stating: [T]he only question, one of apparent first impression, is whether the act of downloading the image from the internet and “burning” (recording) the image to a CD cons titutes the “making” or “production” of such materials. The dictionary . . . contains severa l definitions of the word “make.” Among them are: To cause to exist, occur, or appear; create; to fit, intend, or destine by, or as if by creating; to bring into being by forming, shaping, or altering material; to put toge ther from components. Applying this definition here, th e “bottom line” is that, after the requisite, mechanical, and technical f unctions, some things exist (CD-Rs with these images on them) that di d not exist prior to that act. Defendant appealed by leave gr anted, and the Court of App eals affirmed in a published opinion, stating:

The term “make” is defined as follo ws: “to bring into existence by shaping, changing, or co mbining material[.]” Random House Webster’s College Dictionary (2001). Defendant acquired child sexually abusive material through th e Internet, and he shaped, formed, and combined the material through placement of various selected pictures, videos, and images onto specific CD-Rs, bringing into existence something that had not5 previously existed, i.e., distinctly created and compiled child-pornography CD-Rs. [ People v Hill , 269 Mich App 505, 518; 715 NW2d 301 (2006).] The Court of Appeals also stated: Regardless of whether defendant’s ac tions are viewed as copying the original photographs and videos, or copying electronic or computer visual images of the downloaded photographs and videos, the fact remains that copies and reproduc tions were made. Defendant’s argument that use of the CD-Rs was just a mechanism by which to store possessed child pornography ignores the reality that the storing of the images was accomplished through the copying or dup lication of already existing images that continued to exist after the imag es were burned onto the CD-Rs. The language of the statute is clear a nd unambiguous. The decision by the Legislature to specifically include re productions or copies in defining “child sexually abusive ma terial,” which term is then incorporated into [MCL 750.145c(2)], leaves no room for a contrary judicial construction. [ Id. at 517.] We denied defendant’s application for leave to appeal, w ith three justices indicating that they would grant leave to appe al. 477 Mich 897 (2006). We also denied defendant’s motion for reconsideration, with three justices indicating that they would grant reconsideration and, on reconsider ation, would grant leave to appeal. 3 477 Mich 1016 (2007). Defendant next unsuccessfu lly sought relief in federal court. Hill v People , 2007 US Dist LEXIS 47700 (WD Mich, July 2, 2007, Case No 1: 07-CV-271), and then proceeded to a bench trial. As relevant to the convictions under review, the evidence

demonstrated that defendant had downloaded and copied to CD-Rs five specific images

3 See also People v Hartman , 480 Mich 1058 (2008), in which three justices indicated that they would grant leave to appeal to consider whether someone who downloaded child sexua lly abusive material from the Inte rnet and saved it to a “flash drive” could properly be convicted of violating MCL 750.145c(2).6 depicting child sexual ly abusive material. 4 The trial court found defendant guilty of five counts of violating MCL 750.145c(2), stating: The proofs show a repeated patte rn of taking an image off the computer and moving it or saving it somewhere else where it did not previously exist. . . . Mr. Hill is guilty of . . . making, producing etc. child sexually abusive materials . . . [that] were created by af firmative action by the user. Defendant appealed in the Court of Appeals, which affirmed his convictions and declined his request to reconsider its earlier publis hed decision holding that the downloading and burning of child sexua lly abusive material to a CD-R constitutes making or producing child sexually abusive material. People v Hill , unpublished opinion per curiam of the Court of Appeals, i ssued February 19, 20 09 (Docket No. 281055). 5 This Court then granted leave to appeal. 485 Mich 911 (2009).

II. STANDARD OF REVIEW

Whether conduct falls within the scope of a penal statute, in this case MCL 750.145c(2), is a question of statutory in terpretation that we review de novo. People v

Stone , 463 Mich 558, 561; 621 NW2d 702 (2001).

4 Although the convictions un der review pertained only to 5 images, the evidence here showed that defendant possessed 50 CD-Rs containing approximately 100,000 images and that an estimated 70 percent of these cons tituted child sexually abusive material.

5 The Court of Appeals did, however, identif y errors in the scoring of defendant’s offense variables under the sentencing guid elines and remanded for resentencing.7 III. RULES OF INTERPRETATION MCL 750.145c is a relatively lengthy statut e. Most relevant for present purposes are subsections (2) through (4), which provide: (2) A person who persuades, induces , entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing an y child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange fo r, produce, make, or finance any child sexually abusive activity or ch ild sexually abusive material [6] is guilty of a felony, punishable by impris onment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reas onably be expected to know that the ch ild is a child or that the child sexually a busive material includes a ch ild or that the depiction constituting the child sexually abusive ma terial appears to include a child, or that person has not ta ken reasonable precautions to determine the age of the child. (3) A person who distributes or promotes, or finances the distribution or promotion of, or receiv es for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than 7 years, or a fine of not mo re than $50,000.00, or both, if that

6 MCL 750.145c(1)(m) defines “child se xually abusive mate rial” as follows: “Child sexually abusive material ” means any depiction, whether made or produced by electronic, m echanical, or other means, including a developed or undeveloped pho tograph, picture, film, slide, video, electronic visual image, computer diskette, comput er or computer-generated image, or picture, or sound recordin g which is of a child or appears to include a child engaging in a listed sexual act; a bo ok, magazine, computer, computer storage device, or other visual or prin t or printable medium containing such a photograph, picture, film, slide, vide o, electronic visual image, computer, or computer-generated image, or pi cture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book , magazine, computer, or computergenerated image, or picture, other visu al or print or printable medium, or sound recording.8 person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting th e child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. This s ubsection does not apply to the persons described in sec tion 7 of 1984 PA 343, MCL 752.367. (4) A person who knowingly possess es any child sexually abusive material is guilty of a fe lony punishable by impris onment for not more than 4 years or a fine of not more than $10, 000.00, or both, if that person knows, has reason to know, or shou ld reasonably be expected to know the child is a child or that the child se xually abusive material incl udes a child or that the depiction constituting the ch ild sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child.

The issue here is how the te rms “produces” and “makes” in subsection (2) should be interpreted. The rules of statutory construction are well es tablished. As this Court explained in

G C Timmis & Co v Guardian Alarm Co , 468 Mich 416, 4 20-422; 662 NW2d 710 (2003): When construing a statute, the C ourt's primary obligation is to ascertain the legislative intent that may be reasonably inferred from the words expressed in the statute. If the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed. * * * The doctrine of noscitur a sociis , i.e., that “a word or phrase is given meaning by its context or setting,” a ffords us assistance in interpreting [statutes]. . . . . . . “[Statutes] exist[] and must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the stat ute . . . .” “[W]ords in a statute should not be construed in the void, but should be read together to harmonize the meaning, giving effect to the act as a whole.” Although a9 phrase or a statement may mean one th ing when read in isolation, it may mean something substantially different when read in context. “In seeking meaning, words and clauses will not be divorced from those which precede and those which follow.” “It is a familiar principle of statutory construction that words grouped in a lis t should be given related meaning.” [Citations omitted.] We are also instructed to give undefined st atutory terms their plain and ordinary meaning unless the undefined word or phrase is a term of art. 7 The Legislature did not specifically defi ne the terms “produces” or “makes.” Therefore, it is appropriate to consider dictio nary definitions to di scern the meanings of

these terms. Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n , 456 Mich 590, 604; 575 NW2d 751 (1998). From all of this, it is cl ear that what a court should do in construing a term in a

criminal statute for which ther e are a variety of potential defi nitions is to determine from among those definitions which the Legislature most reasonably intended by the specific

context in which the term is found.

IV. APPLICATION

This Court first consid ered MCL 750.145c in People v Tombs , 472 Mich 446; 697 NW2d 494 (2005). In Tombs , the defendant turned in a company laptop computer, and more than 500 images of child pornography were found on it in a file location not readily

7 MCL 8.3a provides: All words and phrases sh all be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construe d and understood ac cording to such peculiar and appropriate meaning.10 or easily locatable. The defendant was convicted of viola ting MCL 750.145c(3), promoting or distributing child sexually abusive material. This Court first recognized the longstanding principle that a cr iminal statute is presumed to include a criminal intent or

mens rea absent an express or implied indication that the Legislature wanted to dispense

with it. Id . at 456-457 (opinion by K ELLY , J.); id . at 466 (T AYLOR , C.J., concurring). 8

We then held that th e criminal intent to possess child sexually abusive material was not

the same as the criminal intent to promote or distribute child sexually abusive material.

Id . at 448 (opinion by K ELLY , J.). We affirmed the decisi on of the Court of Appeals that

reversed the defendant’s convi ction for distributing or prom oting child sexually abusive material, stating: “Although defendant intended to distribute the laptop containing child sexually abusive material to his former employer, no evidence suggests that he

distributed the material with a criminal intent.” Id . at 459-460. The lead opinion in Tombs examined MCL 750.145c and proceeded to summarize the Court’s position as follows : “The Legislature expressl y separated the crimes of

8 As explained in People v Beaudin , 417 Mich 570, 574; 339 NW2d 461 (1983): “Performance of the physical act proscribed in the statut e is not enough to sustain a conviction. The act must be coincident with an intent to bring about the particular result the statute seeks to prohibit.” It is also the case that common-law defenses are “read into” criminal statutes. See, e.g., United States v Panter , 688 F2d 268, 27 1 (CA 5, 1982), which explained that a legislature’s failure to provide specifically for a common-law defense in drafting a criminal statute does not necessarily preclude a defendant charged with violating that statute from relying on such a defense. This conclusion is unassailable; statutes rarely enumerat e the defenses to the crimes they describe.11 production of child sexually abusive material, distribution or promo tion of the material, and simple possession.” Id . at 464. It further stated: Possession is not the same as promo tion. The prosecutor blurs the two, asserting that by obtaining the material from the Internet, defendant promoted it. To accept that argument, this Court would ha ve to ignore the express language of the Legislature that created a graduated scheme of offenses and punishments regarding child sexually abusive material. [ Id .] [9]

Tombs recognized that MCL 750.145c clearly establishes three tiers in its graduated

scheme of both offenses and punishments. Those who ar e involved in the production of child sexually abusive material are subject to a maximum sentence of 20 years, those who distribute or promote such material are subj ect to a maximum senten ce of 7 years, and those who knowingly possess such material are subject to a maximum sentence of 4

years. There is an inherent logic to this sche me. The Legislature reasonably concluded that those who distribute or promote child sexually abusive material are more morally and criminally culpable than those who possess such material and that those who create or originate such material ar e the most morally and crimina lly culpable. The case at bar requires us to determine whether defendant ’s act of downloading and burning child

9 Accord People v Adkins , 272 Mich App 37, 40; 724 NW2d 710 (2006) (“We conclude that the language of [MCL 750. 145c(2)] clearly and unambiguously imposes criminal liability on three distin ct groups of ‘person[ s],’ provided that at the time of their actions, the persons met the requisite knowledge element.”). See also People v Ward , 206 Mich App 38, 42-43; 520 NW2d 363 (1994), in which the Court of Appeals observed that MCL 750.145c(2) “focuses on protec ting children from sexual exploitation, assaultive or otherwise” and that the purpose of the statute is “to combat the use of children in pornographic movies and photog raphs, and to prohibit the production and distribution of child pornography.”12 sexually abusive material to CD-Rs falls with in the top tier or the bottom tier; it is not argued by either party that it fa lls within the middle tier, and we also do not believe that it does, for what defendant has done does not constitute the pr omotion or distribution of child sexually abusive material. That is, unlike Tombs, this case does not involve determining whether a defendant’s conduct falls within adjacent tiers and whether it is punishable as a 4-year or 7-y ear felony. Rather, this case involves determining whether

defendant’s conduct falls within the lowest or the highest tier and thus whether defendant has committed a 4- or 20-year felony. We keep the graduated scheme of MC L 750.145c and the magnitude of the potential disparity in defendant’s criminal li ability in mind as we attempt to discern the most reasonable definitions for “produces” and “makes” as used in MCL 750.145c(2). Again, the pertinent language of that subs ection is “arranges for, produces, makes, or finances” any child sexually abusive material. On the basis of the previously stated principles, we must c onsider MCL 750.145c as a whole in determining the meaning of “produces” and “makes” in th is statutory context. Pu rsuant to the maxim of noscitur a

sociis , these words must be viewed in light of the surrounding terms employed in MCL 750.145c(2), i.e., “arranges for” and “fin ances,” because the latter supply guidance regarding what the former mean in context. “Makes” and “produces” are used in MCL 750.145c(2) as verbs that may communicate a variety of different concepts. The Court of Appeals adopted the first

definition of “make” in the Random House Webster’ s College Dictionary (2001)-- “to bring into existence by shaping, chan ging, or combini ng material[.]” Hill , 269 Mich App13 at 518. But this is only one of many defi nitions for “make” in that dictionary. The

second and third definitions are as follows: “2. to cause to exist or happen . . . . 3. to

cause to become . . . .” The same dictio nary also provides the following relevant definitions of “produce”: “1. to cause to exist; give rise to . . . . 2. to bring into existence . . . . 7. to bring (a play, movie, opera, etc.) before the public.” We also consider the surrounding words, “arranges for” and “finances.” The dictionary offers the following relevant definitions of “arrange” as in “arranges for”: “3. to prepare or plan . . . . 5. to make plans or preparations . . . .” For “finances, ” it offers the following relevant definition: “3. to supply with money or capital . . . .” The definitions of “arranges for,” “finance s,” and “produce” afford obvious insight into how the adjoining term “m ake” should be interpreted. When these four words are viewed together, their relatedness or comm on meaning becomes increasingly apparent-- each constitutes a verb selected by the Legisl ature to communicate that persons included

within this subsection are those who are somehow responsible for the creation or origination of child sexually abusive material. Those who arrange for child sexually

abusive material are involv ed at the front end of th e process by identifying and coordinating the participants, equipment, and locations. That is, the arranger has

undertaken actions that lead to the actua l production of the child sexually abusive material. Those who finance child sexually a busive material provide funding that leads to the same result. The terms “arranges fo r” and “finances” sugg est that the most reasonable understanding of “produ ce” is “to bring (a play, movi e, opera, etc.) before the public.” In other words, one should envi sion a producer as a person similar to the14 producer of a play, movie, or opera who is directly responsible for the creation or origination of a particular production, in this case child sexually abusive material.

“Produce” refers to the conduct of those persons but for whom the production (the material) would not exist in the first place, i. e., those who have transformed an idea into a reality. Without those who have arranged fo r, financed, or produced, there would be no child sexually abusive material at all.

This leaves the term “makes.” Given th e related definitions and understandings of “arranges,” “produces,” and “finances,” we belie ve that “makes” should be interpreted in a similar manner as meaning “t o cause to exist or happen” or “to cause to become.” 10 That is, “makes” should be interpreted in the common fashion as referring to someone who is primarily involved in the creation or origination of the ch ild sexually abusive

material. 11

10 While we agree with the first part of the definition adop ted by the Court of Appeals, “to bring into existence,” we reject the second half of that definition, “by shaping, changing, or combining material,” Hill, 269 Mich App at 518, because it adds a limiting dimension to “makes” th at is inconsistent with th e meanings of the surrounding terms, “arranges for,” “produ ces,” or “finances.”

11 This understanding of “produces” and “makes” is consistent with the opening clause of MCL 750.145c(2), which describes other individuals subject to punishment under that subsection: “[a] person who persuades, induces, entices, coerces, causes, or knowingly allows a child to en gage in a child sexually abus ive activity for the purpose of producing any child sexually abus ive material[.]” The terms used in the opening clause clearly refer to those who have had direct contact with a mino r, either through the minor’s recruitment or through the minor’s “p erformance” in the pr ohibited material. While those identified in the opening clause de finitely are persons who directly deal with the children, those identified in the second clau se, the arrangers, producers, makers, and financers, may also on frequent occasion have dire ct contact with the children.15 When the terms “produ ces” and “makes” are understood in this light, it is simply untenable to conclude that downloading an existing image from the Internet and burning it to a CD-R for personal use constitutes produ cing or making child sexually abusive material under MCL 750.145c(2). While such conduct certainly constitutes proof of knowing possession of such material, it does not constitute sufficient proof of the making or producing of that material. Thus, when we consider the st atute as a whole, especially

the maxim of noscitur a sociis in conjunction with the graduated scheme of offenses and punishment, we conclude that MCL 750.145c( 2) is primarily concerned with punishing those who are involved in the creation or orig ination of child sexually abusive material

and not those who download and mainta in that material for personal use. 12 The Court of Appeals held that defe ndant had made child sexually abusive material, in violation of MCL 750.145c(2), be cause he brought into existence something that had not previously existed. We respectf ully disagree with this analysis. While the

12 Indeed, we note that before the instan t Court of Appeals opinion, all published Michigan caselaw only applied the portion of MCL 750.145c(2) con cerning a person who “produces” or “makes” child se xually abusive material to t hose involved in the creation or origination of prohibited images. See, e.g., People v Heim , 206 Mich App 439; 522 NW2d 675 (1994) (defendant who p hotographed his 16-year-old niece), People v Hack , 219 Mich App 299; 556 NW2d 187 (1996) (defendant who coerced two children to engage in sexual acts that he videotaped), People v Riggs , 237 Mich A pp 584; 604 NW2d 68 (1999) (defendant who photographe d and videotaped four young girls), People v Harmon , 248 Mich App 522, 526- 528; 640 NW2d 314 (2 001) (defendant who photographed two minors en gaged in sexual acts), and People v Wilkens , 267 Mich App 728; 705 NW2d 728 (2005) (d efendant who recorded hims elf and two minors engaging in sexual acts). Thus, those who originate or create child porn ography are guilty of violating MCL 750.145c(2), ev en if they only in tend to keep the material for personal use.16 burned CD-Rs may not have previously existed, this does not mean, in our judgment, that defendant made child sexually abusive material within the scope of MCL 750.145c(2). The fact that defendant pl aced prohibited images from di fferent websites onto CD-Rs does not by itself rise to the level of making child sexually abusive material within the scheme enacted by the Legislature. 13 Rather, such a reading of the statute can only be reached if one fails to give full considera tion to the statute’s graduated scheme of offenses and punishments and if the term “makes” is read in isolation and without considering the immediately surrounding wo rds. When “makes” is given a meaning reasonably compatible with th ose companion terms, its most reasonable interpretation pertains to the creation or origination of th e child sexually abusive material in the first

instance.

13 In Tombs , we held that the criminal intent to knowingly possess child sexually abusive material was not the same as the crim inal intent to promote or distribute child sexually abusive material. Tombs , 472 Mich at 448 (opinion by K ELLY , J.). Similarly, we hold here that the crim inal intent to knowingly possess child sexually abusive material, when the possession is accomplished by burning a CD-R for the purpose of possessing the prohibited images and not for fu ture distribution or promotion, does not establish the criminal intent to produce or make child sexu ally abusive material. In Tombs , we also held that one who handed a computer containing child pornography to someone else did not distribute child pornogr aphy, even though the act of handing a computer to another person wo uld satisfy a dictionary defi nition of “distribute.” The Court held that the act of intentionally handing a computer over to another was insufficient by itself to constitute distributing child pornography. Rath er, there had to be some criminal intent to distribute, and the defendant in Tombs did not possess that intent. Similarly, defendant here bur ned CD-Rs, and these acts by themselves did not constitute making or producing child po rnography because there was no proof beyond a reasonable doubt that this was defendant’s intent when he burned the CD-Rs for his personal use.17 We believe our conclusion is reinforced by consideration of the manner in which most persons ordinarily think about other type s of Internet downloading. It is common today for computer users to legally, and sometimes illegally, download songs, movies, television shows, music videos, and books fro m the Internet. When such materials are subsequently burned to a CD-R or recordable DVD or some other storage device, as they often are, few would be inclin ed to characterize that cond uct as the making or producing of that song, movie, television show, music video, or book. Such a characterization would, to say the least, be strained and incompatible with the “common and approved usage of the language . . . .” MCL 8.3a. 14 The Court of Appeals and the dissents fo cus on the fact that MCL 750.145c(1)(m) defines “child sexually abusive material ” as “any depiction,” including any “ reproduction [or] copy,” of a “computer-generated image, or picture . . . .” Thus, they read the prohibition against making or producing child sexually abusive mate rial in conjunction with the fact that a reproduc tion or copy of a computer-gener ated image falls within the ambit of prohibited images in concluding th at burning a prohibit ed image to a CD-R

14 We further believe the Court of Appeal s’ analysis produces highly anomalous results. Consider two persons , one of whom downloads and burns child sexually abusive material to a CD-R for his personal possession and one of whom takes that CD-R and attempts to sell it. Under th e dissents and the Court of Appeals’ decision, the downloader has committed a 20-year felony while the seller has committed only a 7-year felony. We do not believe that this is c onsistent with the Legislature’ s intentions because the three tiers of MCL 750.145c instead suggest that the distributor is more criminally culpable than the downloader w ho, in order to obtain possession, has burned the pr ohibited images to a CD-R. When the Legislature has d eemed the maker more culpable than the distributor, we disagree with the dissents’ broad interpretation of “make,” which we believe casts a far broader net th an intended by the Legislature.18 constitutes making prohib ited material. Again, we respectfully disagree. If an image constitutes child sexually abusive material, th is is true without regard to whether a defendant is someone who arranges for, produ ces, makes, or finances , or who distributes or promotes, or who only knowin gly possesses. In other words, once it is determined that an image constitutes child sexual ly abusive material , it must then be determined into

which of the statute’s three tiers the defendant’s conduct falls.

The fact that the defin ition of “child sexually abusive material” in MCL 750.145c(1)(m) includes copies of comput er-generated images does not provide particular insight into what either “makes ” or “produces” means in MCL 750.145c(2). Rather, the fact that child se xually abusive material include s not just originals but also copies simply communicates that a person may be charged with knowingly possessing a copy of a computer-generated image, or with promoting or di stributing a copy of a computer-generated image, or with arranging for, producing, making , or financing a copy of a computer-generated image, in a manner indistinguishable from th e person engaged in

those same activities in connectio n with an orig inal image.

Defendant here was convicted of five counts of producing or making child sexually abusive material on the basis of 5 sp ecific images. A review of his 2 laptop computers and 50 CD-Rs revealed 5 copies of one of the images and fewer, or no, duplicates of the other images that sustained his convictions. The fact that 5 copies of a single prohibited image were found after sear ching 52 different lo cations containing approximately 70,000 images is insufficient, in our judgment, in the absence of other evidence to establish beyond a reasonable doubt a criminal in tent on defendant’s part to19 produce or make this material. 15 Since a common definition of “child sexually abusive material” applies to all three tiers of MCL 750.145c, we conc lude that the Legislature did not intend that burning, or copying, imag es to a CD-R would have any special significance when determining which particular tier had been violated by that burning or copying. We are persuaded that the Legislature di d not intend to impos e the same maximum penalty on a person who downloads a prohibite d image from the Intern et and burns it to a CD-R for personal use as on the person wh o is responsible for the creation of the pornographic images of childre n. The latter is obviously more morally and criminally culpable than the person who downloads an image and saves it to another medium for personal use; at least, this is what the Legislature, in our judgment, has communicated by

its enactment of MCL 750.145c. Those who arrange for, pro duce, make, or finance child sexually abusive material are punished more severely because th ey are the reason the images exist in the first place. While the Court of Appeals’ definition of “makes” has some dictionary support, its analysis was incomplete because it did not consider the statute as a whole and because

it did not consider that “m akes” should be given a mean ing compatible with its

15 Cf. People v Peterson , 63 Mich App 538, 548; 234 NW2d 692 (1975): [T]he quantity of [mariju ana] seeds possessed was so slight that we are constrained to find that reasonable jurors could not infer the intent to deliver from that quantity. There was no other evidence on the question of defendant's intent. It was therefore error for the trial judge to deny defendant's motion for a directed verdict of acquittal on the charged offense.20 surrounding words. When properly construed, the terms “produces” and “makes” are best understood as addressing those who are involved in the creati on or origination of child pornography, and not thos e who download and burn a CD-R of prohibited images for personal use.

V. RESPONSE TO THE DISSENTS

The dissents obscure the issu e before the Court by emph asizing the large quantity of prohibited images found in defendant’s po ssession. There is no doubt that defendant possessed a very considerable amount of ch ild sexually abusive material. However, the question before this Court is not whether defendant was a committed user of child sexually abusive material-- he was-- or whethe r he criminally violated MCL 750.145c--

he did-- but whether burning even a single prohibit ed image to a CD-R constitutes producing or making child sexually abusive ma terial in violation of MCL 750.145c(2). 16 The dissents fail to adequately consid er the statute’s overall organization and graduated scheme of offenses and punishments. As a c onsequence, the dissents end up blurring, and eventually ignoring altogether, the very distinct criminal definitions and requisite states of mind necessary to obtain a conviction under MC L 750.145c when they interpret “makes” as encompa ssing the conduct of a person who burns a prohibited image to a CD-R for the purpos e of storing, or making permanent, his possession of that image.

16 Even Justice Y OUNG recognizes this in asserting in his dissent that “[m]aking even a single copy of child pornography violates th e statute.” Whether there is a large number of prohibited images in defendant’s possession may well be a factor for the trial court to consider at sentencing; however, this does not transform a vi olation of subsection (4) of MCL 750.145c into a violation of subsection (2) of that statute.21 Contrary to Justice Y OUNG ’s assertion that the majority “would prefer that the statute

cease” after its most severe vi olation has been defi ned, it is the dissenting justices who inappropriately read this la nguage in isolation, ignori ng the overall structure and organization of the statute, ignoring the distin ct offenses that the statute defines, and ignoring the gradations of punishment that the statute establishes. It is the dissents that

distort what is manifest in the statute-- that distinctions are to be made among criminal violators, distinctions predicated on whether the violator has created or originated the material, distributed the material, or merely possessed the material. The dissents would compress nearly every cr iminal violator into the category of “creator” or “originator” on the basis of their having made a copy of material created or originated by others. Thus, to the dissenters, there is no distincti on, as we believe is manifest in the statute, between a pers on who downloads and burns child sexually abusive material to a storage device and the person who procur es the seven-year-old girl, pays her parents, and then produces a film or image in which she is depicted in sexual

poses. 17 However, these are distinctions that the Legislature has made, and they are

reasonable distinctions. The dissents notwith standing, we do not “relieve[] . . . of criminal responsibility” the computer downloader when we recognize that the Legislature

drew distinctions in MCL 750.145c between types of misconduct. No criminal responsibilities are being “relieved” when legi slative distinctions are respected and the

17 The question of what offense a mass produ cer of copies of a single prohibited image would be guilty is not before us, and we do not address it in this case.22 computer downloader of prohibited material is made subject to a 4-year term of imprisonment and the distributor of the same mate rial is made subject to a 7-year term of imprisonment instead of the 20-year term of imprisonment reserved for the producer of the material, but for whose actions the materi al would never have existed in the first place. The Legislature is entitled to draw di stinctions in its definitions of criminal activity, and this Court is obligated as a genera l matter to abide by those distinctions. Given that various things can be download ed from the Internet and burned to other media, the dissents’ strained interpretation of the term “makes” woul d have consequences far beyond the instant case. A person can dow nload-- legally or illegally-- songs, books, music videos, television shows, or movies from the Internet and burn them to another

medium such as a CD-R or re cordable DVD. Yet virtually no one beyond the dissenting justices would consider such a person to have “made” or “produced” those songs, books, music videos, television sh ows, or movies. The lega l or illegal downloader of Star Wars is not the equivalent of Stephen Spielberg, the lega l or illegal downloader of The Da

Vinci Code is not the equivalent of Dan Brown, an d the legal or illegal downloader of the Sgt. Pepper’s Lonely Hearts Club Band album is not the equiva lent of John Lennon or Paul McCartney. Even if these downloader s preserve the materials on a CD or DVD, they have not “made” those movies, “made” those books, or “made” that music in the same way as the creators of the materials. 18 Similarly, we are sa tisfied that a person who

18 That the illegal download ing and burning of a song, movie, or book may constitute a violation of federa l copyright law, as Justice Y OUNG asserts, post at 9 n 8, bears little relevance to whether a person who downloads and burns for personal use a23 burns a prohibited image to a CD-R or recordable DVD for his personal use is not the equivalent of the person who procured the ch ild, placed the cameras in front of her, and created or originated child sexually abusive material. While both are criminally liable, they are liable under different sections of the statute. Indeed, under the dissents ’ interpretations, one might argue that someone who only viewed a prohibited image on a computer sc reen is guilty of making child pornography, given that computers themselves automatically store viewed images in temporary files. In other words, if Justice Y OUNG genuinely believes that burning even a single prohibited image to a CD-R always constitutes making child pornography because it increases “the net amount of child pornogra phic images in existence,” it would seem that consistency would require th at a defendant who is merely aware of such temporary files would also be guilty of making child sexually abusive material whenever he views those images. Finally, the dissents also assert that the ma jority has created “out of whole cloth” an “additional hurdle” by requiring proof of a defendant’s intent. This is plainly incorrect. There is nothing at all remarkable in a court’s reading a criminal intent into a criminal statute, given that such statutes are generally presumed to include a criminal

intent. See Morissette v United States , 342 US 246; 72 S Ct 240; 96 L Ed 288 (1952); Staples v United States , 511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994); Tombs ,

song, movie, or book and thereby infringes on the copyright is making or producing the song, movie, or book under MCL 750.145c(2).24 472 Mich at 452-45 6 (opinion by K ELLY , J.); id. at 465-468 (T AYLOR , C.J., concurring). Absent any state-of-mind requirement, a wi fe who transported her husband’s laptop to the police station because she su spected that it contained child sexually abusive material would herself arguably be a possessor a nd distributor of the material. See Tombs , 472 at 458-459 (opinion by K ELLY , J.). Similarly in this cas e, absent any state-of-mind requirement, a wife who down loaded a child sexu ally abusive image from her husband’s computer and brought it to the police would herself run the risk of being characterized as

a maker of the material under the dissents’ in terpretations of MCL 7 50.145c. Contrary to the dissents, it does not create an “additional hurdle” to prosecutions, or create a new statute “out of whole cloth,” to require proof of a criminal intent in a criminal statute.

VI. CONCLUSION A defendant who downloads child sexually abusive material from the Internet and burns the images to a CD-R, when there is no evidence the defendant had a criminal intent to do something other than possess the CD-R for his own persona l use, may not be convicted of violating MCL 75 0.145c(2), which makes it a 20- year felony for any person who “arranges for, produces, makes, or finances” “any child sexually abusive material . . . .” Rather, that person is properly convicted of knowing possession of child sexually abusive material in violation of MC L 750.145c(4), a 4-year felony. The three tiers of offenses and punishments in MCL 75 0.145c compellingly indicate the Legislature did not intend to impose the same maxi mum penalty on a pers on who downloads a prohibited image from the Internet and burns it to a CD-R fo r personal use as on a person

who is involved in the creati on or origination of child sexually abusive material.25 Therefore, we reverse in part the judgment of the Court of Appeals, vacate defendant’s convictions under MCL 750.145c(2), and remand for further proceedings not inconsistent with this opinion.

K ELLY , C.J., and C AVANAGH and H ATHAWAY , JJ., concurred with M ARKMAN , J.S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 138668 BRIAN LEE HILL, Defendant-Appellant.

W EAVER , J. ( dissenting ). I dissent from the majority op inion, which reverses in part the judgment of the Court of Appeals and vacates defendant’s c onvictions under MCL 75 0.145c(2). I would

affirm defendant’s convictions under MCL 750.145c(2) beca use defendant intentionally made copies of child sexually abusive material. In this case, police officers obtained two laptop computers and numerous recordable compact discs fro m defendant’s home containi ng approximately 70,000 to 80,000 pornographic images of boys ranging in age from “toddlers to teens.” Within defendant’s immense collection of pornog raphic images, authorities found multiple copies of a single pornographic image. The copies created the basis for charging

defendant with maki ng child sexually abusive material. I agree with Justice Y OUNG ’s statement in his dissen t: “[T]he majority opinion relieves a defendant of criminal responsibi lity for making copies of child pornography2 ‘for personal use’ and creates out of w hole cloth an additional hurdle for those prosecuting individuals who make child pornography . . . .”

Elizabeth A. WeaverS T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 138668 BRIAN LEE HILL, Defendant-Appellant.

Y OUNG , J. ( dissenting ). In this case, defendant admitted making 50 recordable compact discs (CD-Rs) containing approximate ly 70,000 to 80,000 pornographic pictures depicting boys from “toddlers to teens,” as well as videos depic ting 12- to 13-year-old boys engaged in sexual acts. Within this compendious library of child pornography, multiple copies of one particular pornographic image formed the basis of the charges that were lodged against defendant for making child sexually abusive material. 1

1 Five images, described as “Jeff0015.jpg ,” were created on defendant’s laptop computer on October 5, 2002, and September 9, 2003, and found on three separate CD-Rs created April 15, 2003, April 26, 2 003, and June 11, 2003 . The record also indicates that the Jeff0015.jpg file was a ttached to a November 28, 2003, e-mail. However, a computer forensic examiner tes tified that she was unable to determine whether defendant sent the e-mail or received it.2 The statute under which defendant was convicted plainly applies to any person who “makes” copies of child pornography. 2 Here, despite the uncontested proof that

defendant made numerous copies of one particular pornographic image, the majority opinion reverses defendant’s convic tions because it contends that he merely intended to possess the copied images “for personal use” and because the major ity opinion finds it “simply untenable” that the Legislature woul d punish “those who download and maintain that material for personal use” as harshly as those involved in the “creation or origination” of ch ild pornography. However, the straightforward language of th e statute is not limited to the original creator of the child pornogr aphy. Rather, MCL 750.145c (2) explicitly criminalizes making copies of child pornography, without requiring the prosecution to prove what the

defendant intended to do w ith the child pornography once the crime had been committed , that is, once the copies had been made. Because the majority opinion relieves a defendant of criminal responsi bility for making copies of child pornography “for personal

use” and creates out of whole cloth an additi onal hurdle for those prosecuting individuals who make child pornography, I vigorously dissent. The relevant portions of MCL 750.145c provide: (2) A person who persuades, induces , entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any ch ild sexually abusive material, or a person who arranges for, produces, makes , or finances, or a person who attempts or prepares or conspires to arra nge for, produce, make, or finance any child

2 MCL 750.145c(1)(m); MCL 750.145c(2).3 sexually abusive activity or child sexua lly abusive material is guilty of a felony, punishable by imprisonm ent for not more than 20 years, or a fine of not more than $100,000 .00, or both . . . . (3) A person who distributes or promotes, or finances the distribution or promotion of, or receiv es for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than 7 years, or a fine of not mo re than $50,000.00, or both . . . . (4) A person who knowingly possess es any child sexually abusive material is guilty of a fe lony punishable by impris onment for not more than 4 years or a fine of not more than $1 0,000.00, or both . . . . [Emphasis added.] Also critical to interpreting the prohib ition against making child pornography is the statutory definition of two relevant term s. “Child sexually abusive activity” is defined as “a child engaging in a listed sexual act,” 3 while “child sexually abusive material” is statutorily defined as any depiction , whether made or produced by electronic , mechanical, or other means, including a developed or undeveloped phot ograph, picture, film, slide, video, electronic visual image , computer diskette, computer or computer-generated image , or picture, or sound recording which is of a child or appears to include a child e ngaging in a listed sexual act; a book, magazine, computer, computer storage device , or other visual or print or printable medium containing such a phot ograph, picture, film, slide, video, electronic visual image, computer, or co mputer-generated im age, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, vide o, electronic visual image, book, magazine, computer, or co mputer-generated image, or picture, other visual or print or printable medium, or sound recording. [4]

3 MCL 750.145c(1)( l ). When defendant created the im ages at issue, the definition was codified at MCL 750.145c(1)(k).

4 MCL 750.145c(1)(m) (emphasis added). When defendant cr eated the images, this definition was codi fied at MCL 750.145c(1)( l ).4 I agree with the majority opinion that MCL 750.145c establishes a graduated scheme of offenses and punish ments. Broken down into its simplest terms, the statute provides a 20-year maximum sentence for t hose who make child por nography, a 7-year

maximum sentence for those who distribute child pornography, and a 4-year maximum sentence for those who knowing ly possess child pornography. It is the most severe sanction—the 20-year maximum sentence for those who make child pornography—that

is at issue in this case. MCL 750.145c(2) contains two distinct clau ses, separated by the conjunction “or.” The first clause covers a person who “persu ades, induces, entices, coerces, causes, or knowingly allows a child to enga ge in a child sexually abusiv e activity for the purpose of producing any child sexually abusive material . . . .” This clause penalizes those who

cause a child to engage in a sexual act for the purpose of producing child pornography. These are the “creators” or “originators” of the child pornography, those whom the majority opinion acknow ledges as having “ direct contact with a minor.” While the majority would prefer that the statute cease at the creators or originators of the child pornography, it does not. The second clause of MCL 750.145c(2) imposes criminal sanctions on a person who “arranges for, produces, makes , or finances . . . any child sexually ab usive activity or child sexually abusive material

. . . . ” 5 (Emphasis added.) The latter portion of the statutory pr ovision pertains to more than the child

5 The statute also imposes criminal sancti ons on one who “attempts or prepares or conspires to” arrange for, produc e, make, or finance any child sexually abusive activity or child sexually abusive material. MCL 750.145c(2).5 sexually abusive activity —significantly, it also relates to the child sexually abusive

material . And that is a critical point in any effo rt to give full meaning to this statute. As noted, “child sexually abusive material” is statutorily defined as any depiction of a child engaged in a sexual act. The statut e uses broad language to cover a wide range of image formats, including images produced by electronic, mechanical, or other means, photographs, pictures, films, slides, vide os, electronic visual images, books, and magazines. It also includes depictions on a computer diskette, a computer, or a computer storage device. Significantly, “child se xually abusive material” includes “ any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or co mputer-generated image, or picture, other visual or print or printable medium, or sound recording.” 6 The definitive question in this case is quite simple: did de fendant “produce [or] make” a “reproduction [or] co py” of an “electronic visual image,” a “computer, or computer-generated image,” or other “visua l or print” medium when he took the deliberate action of copying “Jeff0015.jpg” to hi s computer hard drive? Unquestionably,

the answer is yes . Defendant then took the additiona l, volitional steps of copying that image to his computer a second time, as well as copying it to several CD-Rs. The majority opinion’s conc lusion that MCL 750.145c(2) is “primarily concerned” with punishing “the creation or origination” of child pornography and “not those who download” it “for personal use” has no basis in the language of the statute. Indeed, the

6 MCL 750.145c(1)(m).6 majority opinion takes great pains to avoid not ing or giving significance to the fact that by downloading and successively copying child pornography, defendant intentionally produced or made a “reproduc tion [or] copy” of the same illicit pornographic image five

distinct times

. Forced to acknowledge that the plain langua ge of the statute says what it says and that “a person may be charged with” “producing, making , or financing a copy of a computer-generated image” in a “manner indi stinguishable from the person” who created the original image, the major ity opinion nevertheless proceeds to write the second clause of MCL 750.145c(2) out of exis tence by concluding that a defendant’s ultim ate plans for the child pornography negate the crimin al prohibition regarding the method of acquisition. 7 Presumably, a defendant copying chil d pornography would only ever do so for one of two purposes—either to possess it for himself or to di stribute it to others. Both of these purposes are reflected in MCL 750.1 45c(3) and (4), which provide for a 7-year

maximum sentence for those who distribute child pornography and a 4-year maximum

sentence for those who possess child pornography. Under th e majority opinion, despite the clear mandate imposing a 20-year senten ce on those who make copies of child

7 Our criminal code is replete with exam ples of crimes that have heightened consequences because of a defendant’s chosen method of committing the crime . For example, one who commits an assault is genera lly subject to a 93-day jail term for that misdemeanor. MCL 750.81. However, if the same assault is committed with a dangerous weapon, the crime is a four-year felo ny. MCL 750.82. If the analysis used in the majority opinion were app lied to a felonious assault case, one would be forced to conclude that the defendant merely inte nded to commit a 93-day misdemeanor, not a four-year felony, despite the uncontested ev idence that a dangerous weapon was used during the assault.7 pornography, a defendant who makes copies of child pornography will never face more than either 4 or 7 years’ imprisonment. By holding that a defendant who makes copies of child pornography is guilty of only a 4-year felony when the copies are made “for personal use,” the majority opinion essentially holds that defendan t’s criminal liability is limited to that of a mere possessor under MCL 750.145c(4). However, under the plai n language of the statute, defendant is more than a mere possessor of child pornography. The major ity’s holding is especially hard to square with the fact th at defendant took the additional, volitional steps of copying the images to his computer and separately to CD-Rs. I believe that these actions fall squarely under MCL 750.145c(2) rather than MCL 750.145c(4). As the Court of Appeals opinion noted, it is cer tainly possible to possess child pornography without copying or reproducing the images. Indeed, defendant could have satisfied his yen for “personal use” of child pornography and “merely possesse d” the images by viewing them on the Internet without actually copying the images to his computer twice and recopying the images to several entirely separate compact di scs. However, once he copied an image, he clearly violated MCL 750.145c(2). While the majority opinion maintains that the originator of child pornography is “obvi ously more morally” and “more criminally” culpable than the copier of child pornography, noth ing in the statutory scheme indicates that the Legislature shares the majority’s culpability assessment . Indeed, the clear language of the statute indicates that the Legislature has deemed that both are equally culpable , and certainly more culpable than a defendant who possesses an illicit image without having taken the add itional step of copying it.8 The majority opinion also indicates that defendant’s making “5 copies of a single prohibited image” is insu fficient as a matter of law to sustain defendant’s convictions.

This is a conclusion that has abso lutely no basis in the text of the statute. It is unclear to me why making five copies of an identical pornographic image of a minor is insufficient

to sustain defendant’s convictions because the entirety of MCL 750.145c(2) contains no numerical minimum requirement concerning co pies of child pornography. Making even

a single copy of child pornography viol ates the statute. The r eason the majority opinion makes no effort to explain the calculus involved in determining that making five copies is

insufficient is because it simply cannot justif y such a conclusion. The majority opinion runs fa r afield in responding to this dissent—and naturally so because the statutory language is clear and the majority is forced to strain in order to justify its conclusion. Centra l to the majority op inion’s argument is its false conclusion that MCL 750.145c(2) is limited to the originator of child pornography. Thus, only those defendants having “ direct contact with a minor” may be charged with violating MCL 750.145c(2). Not surprisingly, the majority opinion gives absolutely no meaning to the fact that the statute also encompasses those who make copies of child pornography, not merely those who “procured the child” and “placed the cameras in front of her.” While the hyperbole comparing child porno graphy to downloading materials from

the Internet in violation of federal copyright laws certainly makes for entertaining reading, it is equivalent to comparing apples to orangutans. The federal copyright laws encompass those who willfully infringe a copyright, which incl udes making copies of the9 creator’s copyrighted material. 8 By including a “reproducti on [or] copy” of pornographic child images in the definition of “child sexually abusive material,” the very material prohibited under MCL 750.145c(2), the Legislatur e has unambiguously indicated that

one need not be the Cecil B. DeMille of child pornography in order to run afoul of MCL 750.145c(2) for "mak[ing]" child sexually abusive material. I find nothing vexing, much less “simpl y untenable,” about our Legislature’s decision to place an increased sanction on defendants who make copies of child pornography, thereby increasing the net amou nt of child pornographic images in

existence. Because there is no question that defend ant intentionally made multiple copies of child pornography, his convict ions were proper and should be affirmed. Because the

8 Title 17 of the United States Code esta blishes a creator's intellectual property rights in original works. 17 US C 102(a). The owner of the copyright has “the exclusive rights to do and to authorize . . . to repro duce the copyrighted work in copies,” 17 USC 106(1), and “to distribute copies” of the c opyrighted work, 17 USC 106(3). Federal law also establishes penalties for copyright infringement. It a llows the copyright owner “to institute an action for any infringement,” 17 USC 501(b), including injunctive relief (17 USC 502), impounding prohibited material (17 USC 503), and damages (17 USC 504). Federal law also criminalizes an inte ntional copyright infringement committed “for purposes of commercia l advantage or private fi nancial gain[.]” 17 USC 506(a)(1)(A). There is a three-tiered system of punishment, as provided in 18 USC 2319(b): a 5-year maximum se ntence for reproducing or di stributing at least 10 copies of one or more copyrighted works whose total retail value is greater than $2,500, a 10- year maximum for repeat felo ny offenders, and a 1-year maximum for any other case. Thus, making unauthorized “copies” is precisely the nature of a copyright infringement claim.10 majority opinion concludes otherwise, and be cause it creates additional hurdles to the prosecution of those who copy child pornography, I dissent.

C ORRIGAN , J., concurred with Y OUNG , J.