Is a model / other evidence a defense?

This is a question which has popped up on some boards. If a visual depiction can’t be distinguished from CP, would a 3D model or some other piece of evidence like a video documenting the production process suffice in a court of law? Would it be enough to stop the police from bothering you?

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Good question. I think it would be easier to be inspired by real images of children than making 3D models from scratch. So a 3D model doesn’t necessarily prove that a certain image is fake. A video demonstrating the production process holds more water.

I’ve heard that @terminus is part of the legal profession, so I am very interested in his opinion on this subject.

Well, anything would have been inspired at some point by real people in some way. If I go outside, I might see dozens of children in the course of a day. This could be considered inspiration. There is a distinction to be made between using an image and being inspired.

I think I misunderstood. Is the point here to demonstrate that it’s possible to create the CP in question artificially, thereby introducing plausible deniability?

There is certainly a plausible deniability factor, or rather, in absence of documentation, it will be difficult to make your case, even if you’re innocent. This may become a problem in the coming years, especially if some people / producers are for, lack of a better word, sloppy. Some are preempting the problem by wisely figuring out what to do about it before it happens.

It is more the term “inspired”, which has a different semantic meaning than using an image as a direct input in the production process. For instance, if someone were to duplicate it or put the individual into different scenarios. Inspiration would be more along the lines of jiggling the creative juices and learning general patterns than coughing up any particular individual.

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Not necessarily. In the US the “visually indistinguishable from a minor” test makes CP illegal whether or not it was actually created digitally. The fact that it looks indistinguishable is enough.

That’s unfortunate, is there anything which could be done about that? Legislatively? Or otherwise?

There’s no chance legislatively. Politically, it’s just impossible. In the courts, it is possible but very unlikely because this law has already been ruled upon by the Supreme Court.

I’m still doing research into law in this area. So there DOES appear to be an affirmative defense for hyper real “virtually indistinquishable” CGI fictional porn that the government mistakenly thinks is CSAM (I look up lots of cyber law since I’m on the internet all the time).

USC 2252
(C ) It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that -
(1)(A) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; and

(B) each such person was an adult at the time the material was
produced; or

(2) the alleged child pornography was not produced using any
actual minor or minors.”

So it seems very likely to me that a creator can theoretically show their creation process and demonstrate they were not using actual persons and be legally protected from prosecution, which makes a ton of sense.

So in this area, there appears to be two affirmative defenses: Prove it involved ONLY adults, OR prove you simply didn’t use minors. It doesn’t appear you need to prove both that you used adults and didn’t use minors. Proving you didn’t use minors could be enough.

I hope that answers your question. I don’t know for sure though. Ask a legal expert in this field.

Why do we care? Ultimately if someone is producing AI generated material that is considered pornographic legally, and they were producing what they saw was representation of an adult, there is concern that the government may think otherwise and may act against them despite their intentions of creating representation of adults. So this topic is of concern to me. I do plan to produce 3D models that I am open to using for art that might be considered pornographic. The art is designed to represent young adults who (to me) would look 18-28 years of age. However, not everyone agrees on an apparent age. What a person sees as “looks 18”, another may see as “looks 17.9”. So as producers of super realistic fictional material, even if we have NO intention of producing fake CP of any kind, an affirmative defense in which we can prove we did not use a minor could possibly be useful for us.

I should remind you all I’m no expert in law. So maybe I’m reading their affirmative defense wrong. And maybe it doesn’t really matter whether they can prove it or not. So that leads to the next question:

Ultimately what would indistinguishable mean? As someone who wants to produce AI representation of adults, I would hope it does not lump in appearances which could be considered “unsure” appearances, or appearances in which you would not be sure if they represent a minor or represent an adult. Objectively it can be quite difficult to tell the difference between 16-17 and 18-19 year olds. If it were to be interpreted too loosely, it threatens creators of hyper real materials that choose not to use real actors if those individuals were to aim for a “look” of 18-19 year old adults.

I would hope “indistinguishable” would mean “obviously like a child and no way that represented an adult”.

Under USC 2256

(11)the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.

@terminus Thoughts on this? There appeared to be another affirmative defense that I was unaware of. I believe it’s important for CGI porn creators of the future who’s goal is to create fictional hyper realistic adults to be aware of protections in case they get falsely accused of producing CSAM. Without this affirmative defense, a creator who’s goal is to create young adults could be falsely accused, and he or she could prove it was CGI, and they can still get convicted. This is why this affirmative defense is so important.

You are almost right. You need to look at § 2252A. It contains a similar affirmative defense but also says:

No affirmative defense under subsection (c )(2) shall be available in any prosecution that involves child pornography as described in section 2256(8)(C ). A defendant may not assert an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) unless, within the time provided for filing pretrial motions or at such time prior to trial as the judge may direct, but in no event later than 14 days before the commencement of the trial, the defendant provides the court and the United States with notice of the intent to assert such defense and the substance of any expert or other specialized testimony or evidence upon which the defendant intends to rely. If the defendant fails to comply with this subsection, the court shall, absent a finding of extraordinary circumstances that prevented timely compliance, prohibit the defendant from asserting such defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) or presenting any evidence for which the defendant has failed to provide proper and timely notice.

So they did make an exception for 2256(8)(C ) 2256(8)(C ) would be morphed depictions of minors. At least two of the prosecutions for it have been confirmed. It makes sense why this would be exempt from an affirmative defense because it involved REAL minors.

(8)“child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A)the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B)such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C )such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

Identifiable minor defined:

(9)“identifiable minor”—
(A)means a person—
(i)
(I)who was a minor at the time the visual depiction was created, adapted, or modified; or
(II)whose image as a minor was used in creating, adapting, or modifying the visual depiction; and
(ii)who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and
(B)shall not be construed to require proof of the actual identity of the identifiable minor.

Basically just don’t use minors as reference while making your creation look like your reference. Produce CGI porn ethically.

No later than 14 days before commencement of trial. And requirement for a timely manner.

prohibit the defendant from asserting such defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) or presenting any evidence for which the defendant has failed to provide proper and timely notice.

Anyone working on photoreal CGI porn involving realistic humans - even if their only goal is to produce representations of adults in sexual situations, they would want to keep all their evidence on hand if they were to be falsely accused of CSAM possession/distribution. Especially considering the time limit. If someone where to produce alien porn, it maybe less important.

(3)(B)knowingly sells or possesses with intent to sell any visual depiction that has been mailed, shipped, or transported using any means or facility of interstate or foreign commerce, or has been shipped or transported in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported using any means or facility of interstate or foreign commerce, including by computer, if—
(i)the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii)such visual depiction is of such conduct; or

Seems to me that the affirmative defense under (3) only includes for (A) and not for (B). So not only is USC 2256 (8)(C ) excluded, also USC 2252 (3)(B) is also excluded.

Basically don’t sell any CGI porn that you think others would believe looks like children. A closer reading of this law does not appear to exempt (3)(B) which involves selling or possession with intent to sell.

When in doubt, I follow the wisdom of a qualified lawyer who isn’t hiding behind a pseudonym.

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If you use my child as reference for your sick desires, you will burn in hell. My Lord and Savior Jesus Christ will not allow you to do something like that.

Don’t worry, unless your child was born in 1681, and your name is Williams. And in the event that you did not get my reference:

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Just a tip for you: If you are LITERALLY asking if it’s legal to produce “Fake” CP that looks real, maybe the issue is not the law, maybe… just maybe… maybe… INDEED the problem is your sexual thoughts. Perhaps. Have you talked to someone who IS NOT a pedo about this? Maybe talk to your parents or sister or brother about your mental problem? Maybe they could give you advice on how to control these thoughts.

Thank you for your valuable input during your shitposting session, EthicalAI.

Do you not get bored of this? Is there any real tangible argument you’re going to bring up here other than muh morals? Muh morals is a boring argument and you know it.

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And just why the hell would I want to “control my thoughts”? So that the stupid peasant witch burners can sleep more soundly at night? No, if they wish to fear me in their ignorance, that’s their choice and their problem, but it will not change what is true about me.

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