Canadians and 2257

[tb]

Originally Posted by RawAlex

(1) The publishing of my websites is from my office in Montreal. It doesn't take place anywhere in the US. I may have servers in the us, but they are merely distribution points, not actual points of publication


(2) I will not be and not allow myself to be subject to US law unless I am physically in the US.

Alex

For the sake of the argument, with all due respect:

(1) - This is a highly debatable item, after all what is the value of publication without distribution?
And what if all of your distribution points are US based?

(2) You should check out the legal proceedings against Canadian telemarketers. Being physically in Canada has given them no protection. They are being extradited on the fast track, procecuted and incarcerated.
The law applies where the crime is committed and Canadian enforcment is working hand in hand with US enforcement. I am not defending telemarketers, however I am curious how this situation would apply to the Canadian adult entertainment industry.

(I am not a lawer.)

[ArtWilliams]

Originally Posted by tb

For the sake of the argument, with all due respect:

(2) You should check out the legal proceedings against Canadian telemarketers. Being physically in Canada has given them no protection. They are being extradited on the fast track, procecuted and incarcerated.
The law applies where the crime is committed and Canadian enforcment is working hand in hand with US enforcement. I am not defending telemarketers, however I am curious how this situation would apply to the Canadian adult entertainment industry.

To your point #2, the telemarketers commited fraud I presume which means you can be extradited to the US because fraud is considered a crime in both countries. There is no comparable 2257 law in Canada.

... art

[emmanuelle]

"Content provided by.." Could be interpreted as mere distribution. I did not write the statement, and do not have it on any page on any of my servers. I did 'produce' the page in the ccbill interface though, so who the hell knows...

One might say that your video editing service is indeed creating a product, thus making you a producer. Don't even get me started on designers....

Since even the attorneys cannot agree on definitions and how to proceed, I don't expect you & I, neither of whom are qualified counsel to agree.

Some companies are burying their head in the sand
Some companies are claiming compliance when it's obvious they are not
Some companies are retooling their business model and following the directives to the best of their ability and their respective interpretations.
Some companies are willing to put profits over the safety of other human beings.


It really comes down to each company evaluating their circumstances, and making a decision on the level of risk vs reward they are willing to accept. Is a company willing to gamble certain things, are they prepared to live with the consequenses, and odds. It's a personal decision that each man or woman must make for himself.

I think that we can both agree that a message forum is not the place to obtain legal advice.

[RawAlex]

TB: Art hit it on the head. Telemarketers are hit because the defraud americans. The actual victim is in the US, and the crime is committed in the US (wirefraud, I think they use).

as for point 1, there is a specific exemption in the new 2257 for distributors / distribution. Those acts require no documentation. It isn't a case of saying I am not distributing in the US, but rather saying that the law exempts those activities from requiring documentation. As a secondary producer I would be required to have documentation if I was operating and publishing from the US, which I am not.

Emmanulle: While a chatboard is not a good place to get legal advice, it is a good place to discuss ideas and see where they lead. Many people in this area are getting legal advice from lawyers that are not versed in 2257 caselaw, have no real idea, and are giving a direct reading of the law without understanding the implcations, history, or standing judgements in the field.

As for other issues, literal readings of the new rules will require that photo and video editors will be required to have records as a secondary provider.

A secondary producer is any person who produces, assembles,
manufactures, publishes, duplicates, reproduces, or reissues a book,
magazine, periodical, film, videotape, digitally- or computer-
manipulated image, picture, or other matter intended for commercial
distribution that contains a visual depiction of an actual human being
engaged in actual sexually explicit conduct, or who inserts on a
computer site or service a digital image of, or otherwise manages the
sexually explicit content of a computer site or service that contains a
visual depiction of an actual human being engaged in actual sexually
explicit conduct, including any person who enters into a contract,
agreement, or conspiracy to do any of the foregoing.

It specifically details assembles... and video editing is the take of assembly.

Being in Canada I am not concerned with this directly, however it is an issue that video editors amoungst others will have to look at.

Alex

[tickler]

Originally Posted by artwilliams

There is no comparable 2257 law in Canada.

... art

And the penalties would also have to be similar in both countries. Five years for record keeping violation is pretty harsh.

Alex, I don't know if you are aware, but, Canadian courts have already blocked the US from obtaining personal information from Canadian subsidaries, if the US parent companies were ordered to comply(Patriot Act).

I have seen two different sponsor reactions today so far:

One is basically scrapping everything and starting over from scratch. (Might be an indication that they feel the back dating will survive)

Second sponsor appears as if it will allow non-US webmasters to proceed in a business as usual manner.

[tb]

Again for the sake of the argument and with respect for everyones opinions; (which I enjoy reading )

Telemarketers commit a crime in the US. What the crime is, is not relevant.

By hosting on US servers content that contravenes a section of US law is to commit a crime in the US. Because they can't arrest you today does not mean they can't put you on a list to arrest tomorrow.

It took the US years to bring Canada on-side with reference to telemarketers.
How fast or slow Canada would come on board with this issue is impossible to know.

The undeniable fact is, there exists a level of co-operation between US and Canada.
I think taking the stance that you are not physically located in the US might create a problem some time down the road.

In reference to the distribution/publishing issue, I don't see how a US based adult web hosting company will be able to flaunt this law and make it the problem of their customers.
I would imagine that the first place to feel the heat would be large, well established adult web hosts.

I think the only way to skirt the issue entirely is to make your biz all Canadian.

Of course one can just make the transition and simply comply with 2257.

Again for the sake of the argument and with respect for everyones opinions.

[punker barbie]

Great thread guys! i was wondering the same thing, many valid points on each side.

[ArtWilliams]

Originally Posted by tb

I think the only way to skirt the issue entirely is to make your biz all Canadian.

Exactly, for Canadians ...

- .ca domain name
- non-US host
- non-US sponsors
- non-US content

That may be extreme but it puts you in the safest position possible.

... art

[RawAlex]

I don't see where I would have to sell off 2000 .com domains to be safe...

Alex

[ArtWilliams]

Originally Posted by RawAlex

I don't see where I would have to sell off 2000 .com domains to be safe...

Alex

No, not likely. I am using an extreme case for the very risk adverse.

... art

[RawAlex]

If you are adverse to risk, then don't be in porn!

Alex

[tb]

With respect for all opinions;

Originally Posted by RawAlex

If you are adverse to risk, then don't be in porn!

Alex

I am in agreement.

Although I would love to see a couple of different board members individual risk assements.

I venture that one persons risk is anothers cake-walk.

Also once you have established your adult entertainment biz as a Canadian entity, does it really matter where the content comes from, with regards to the sponsors?

Got any ideas eh?

[Sir Horny]

I may be a little too optimistic here, but I don’t think the US Gov’t is going to waste any time or money on prosecuting adult webmasters unless they have obvious child porn on their site.

[RawAlex]

Sir Horny: The idea of this new "rule" is to specifically trip up as many porn people as possibly for poor record keeping. It is about the same as using zoning bylaws to get rod of strip clubs. It isn't exactly what the intention seems to be on the surface, but the reality is that even if all your models are grannies, without model IDs and such, you can't use the material and are just as guilty under these rules as a guy with some naked 17 year old on his site.

It is a blatant attempt to make it hard enough to legally run a porn business that few individuals will be interested in doing the work.

I know even though I am Canadian that I am feeling the chill. Certain sponsors are pulling their sponsor content entirely, which means site specific promotions that I have built all have to go away. Other sponsors are limiting or somehow changing their content, banners, and such, which means that for each banner set I run (and I have hundreds) I will have to look to see if the banners are still valid after June 23rd. Some sponsors are going under, amateur sites are closing, and sites are being removed. All of this creates work and lost revenue for everyone in the industry.

It's not a good time for anyone.

tb: Until we see how hard the DOJ is going to push on foreign companies, I don't really know what the answer is. I will be watching very closely to see how this is all taken on.

My feeling is that on June24th, a cross section of the porn industry will get a visit. A couple of the larger "mainstream" porn companies, some smaller programs, and a few individual webmasters. These people will become the tests.

Then we will know more.

Alex

[emmanuelle]

Ex Post Facto Law - A law that makes criminal an act that was legal when it was committed, or that increases the penalty for a crime after it has been committed, or that changes the rules of evidence to make conviction easier; a retroactive criminal law. A Latin term meaning "after the fact." The state legislatures and Congress are forbidden to pass such laws by Article I, section 9 and 10 or the Constitution.


source: http://www.vote-smart.org/resource_g...hp#expostfacto

[terry]

Originally Posted by Tommy

I think your all fucked

Thanks Tommy, we can feel the love

[Ramster]

Here's my thought.

I'm in Canada. It's a United States law. China can't enforce their laws on me so Fuck off!

[tb]

With respect for all opinions;

Originally Posted by emmanuelle

Ex Post Facto Law - A law that makes criminal an act that was legal when it was committed, or that increases the penalty for a crime after it has been committed, or that changes the rules of evidence to make conviction easier; a retroactive criminal law. A Latin term meaning "after the fact." The state legislatures and Congress are forbidden to pass such laws by Article I, section 9 and 10 or the Constitution.


source: http://www.vote-smart.org/resource_g...hp#expostfacto

This is not Ex Post Facto.
The new 2257 law has been released prior to its coming into effect.
You have been clearly and fairly warned.
How you act is now Ex Post of the new law.
There do not seem to be any retroactive provisions in this law as I am aware.
What you have done in the past is not relevant, the law only dictates how you should conduct your biz from a future date.
Sad but true.

[emmanuelle]

What about the recordkeeping that is retroactive to 1995?

[Toby]

Originally Posted by emmanuelle

Ex Post Facto Law...
The state legislatures and Congress are forbidden to pass such laws by Article I, section 9 and 10 or the Constitution....

The same point I made in another thread a couple of weeks ago.
http://www.greenguysboard.com/board/...&postcount=159

[tb]

With respect for all opinions;

Originally Posted by emmanuelle

What about the recordkeeping that is retroactive to 1995?

Originally Posted by 2257

Thirty-six commenters commented that even if the effective date
were changed to July 3, 1995, the regulation would be overly burdensome
on secondary producers because producers would be required to obtain
records for thousands--even hundreds of thousands--of sexually explicit
depictions dating back a number of years. These commenters claimed that
secondary producers would likely be unable to locate many of those
records from primary producers who may have moved, shut down, or
otherwise disappeared. According to the commenters, those secondary
producers who could not locate such records would be forced to remove
the sexually explicit depictions, which would be a limit on
constitutionally protected material.
The Department declines to adopt these comments. Producers were on
notice that records had to be kept at least by primary producers for
depictions manufactured after July 3, 1995. In addition, commenters
were similarly on notice that the D.C. Circuit, in American Library
Ass'n v. Reno, had upheld the requirement that secondary producers
maintain records. The Department is not responsible if secondary
producers chose to rely on the Tenth Circuit's holding in Sundance and
not to maintain records while ignoring the D.C. Circuit's holding in
American Library Ass'n v. Reno. A prudent secondary producer would have
continued to secure copies of the records from primary producers after
July 3, 1995. If those records, which are statutorily required, are not
currently available, then the commenters are correct that they will be
required to comply with the requirements of all applicable laws,
including section 2257(f).

They claim that you have been fairly warned to keep records after July 3, 1995.
The leg they chose to stand on may be debatable, but they are covering their bums very well on the retroactivity crap.
Evidently they are quite aware of meeting the requirements of being non ex post facto.
Of course the statment they make " The Department declines to adopt these comments blah blah blah...." can be debated in a court of law.
Lets just hope that the first person to step up to the plate to debate these laws has deep pockets and a lawyer with a good sense of humor.
Is Hugh or Larry still around?

Personally I see this as a chance to re-position porn in the internet market place. Make it rare, increase the price.....painful in the short term, very profitable in the long term. Just don't fuck the affiliates along the way. Every cloud has a silver lining.

[RawAlex]

Emmanuelle, you make the mistake of assume that the congress passed a new law. That is just not the case. What you have here is an administrative clarification of an existing law - basically they are explaining what paperwork is truly needed. The wording and contents of this administrative clarification have been shot down in court before (sundance vs reno), but this is not an Ex Post Facto law, because congress, the house, and the president were not involved in passing a new law.

Don't bet your (american based) business on tricky out clauses and flashy legal game playing.

Alex

[AliMeBitch]

Found what looks like a decent canadian hosting company that allows adult content http://www.moxiehosting.com

[Trax]

is .com = united states??
i highly doubt those fuckers could take a domain away from me

[susanna]

Ok so far very good ideas and I tend to agree with RawAlex. At the very least a Canadian can understand their own laws and follow them. I understand PIPEDA. The privacy laws at the federal level are fairly simple but the provincial interpretations are just coming in. This can change over time but if anything they will get stricter. If that is a word.

My new questions are:

Can and will a processor such as ccbill require all companies to have 2257 compliance? I know there is that extenuating circumstance for canadians that they had to incorporate in the USA for visa reasons... so there is probably? no canadian businesses using ccbill? What about other processors? I guess they are offshore and wont be imposing anything?

Next...what about link lists? already there are some that have their terms listed to include 2257 compliance. Will us based link list operators have to force the 2257 compliance? tgp operators? Is linking to someone who doesnt bother posting their compliance a bad thing for someone who lives in the USA? does this mean those that wont comply cant play with any USA webmasters anymore?

Now what if you are an American and you want to use an overseas affiliate program? are you in trouble for linking/using banners or even free content from a non-compliant program? Of course this would have implications for the rest of us non-users.