Two child porn charges have been reinstated against Richard Lyons of Budd Lake, N.J., who said he forgot to change his LimeWire settings and didn’t intentionally distribute the files.
Lyons was accused of offering child porn between May 30, 2007, and Sept. 25, 2007, after a police officer downloaded a video that was tracked to his home computer.
Armed with a search warrant, police executed a search warrant at Lyons’ home and seized computers containing about 25 videos of children engaged in sexual activity, according to the appeals court.
The New Jersey appeals court reversed a decision by a lower-court judge, who had dismissed the more serious charges of offering and distributing child pornography against Lyons, who also faces a third charge of possessing child porn.
The lower-court judge ruled that the charges were “defective” because the state presented no evidence to the grand jury proving that Lyons “intended to transfer or distribute the images contained in his shared folder,” according to the appeals court.
Lyons' attorney had argued that his client's passive holding of the files in a computer folder and his ''act of omission," or failure to set a default switch that would bar other web users from accessing the porn, did not amount to distributing or offering child pornography.
He also said that there was no evidence that Lyons intended to transfer or distribute the images contained in his shared folder.
But the appeals court ruled that the charges should stand because Lyons had “complete awareness” that his LimeWire software program’s materials were available to all other users of the network.
“He acted with awareness of the practical certainty that his conduct would result in another user viewing and downloading the materials,” the court said.
Joan Irvine, CEO of the ASACP, told XBIZ that the points of law are fair for child porn defendants.
"I don’t care whether it’s possession or distribution — anyone knowingly involved in with CP should be prosecuted to the full extent of the law," she said.
Lyons is due back in Morristown Superior Court in New Jersey on Dec. 15.