Canadians and 2257
 

Have I missed the threads on how Canadians are affected by 2257? Anyone seen a lawyer yet?

I asked this same question here last year. I gave it some thought. and I came to this conclusion: I'm not (physically) operating within or a citizen of the US. I don't have the right to vote for the US president. I abide by my countires own rules. I worry about Canada.

Fuck, we travel to Cuba and George W. doesn't take us a way. Maybe you mean indirectly? I don't know. We have to wait and see.

This is my last 2257 thread reply =)

Also curious being in Canada myself.

I have read the sweet entertainment bit on 2257 and it looks like the old info... that they have not recently updated it. Anyone else have leads?

What if your biz is set up in Canada but your hosted on servers either physically located in the US or with a hosting company that resides in the US ?

Am I violating Canadian privacy laws by strictly adhering to the new US 2257?

If you host the content in the US then you have to play by US rules. I would backup or duplicate what you have on your US servers and if need be you can change your DNS to a canadian host.

The main thing you have to concern yourself with is the US gov. telling your host to shut you down.

Hosts are not secondary producers so therefor it shouldn't matter where you are hosted, or am I totally wrong here RawAlex?

VERY interesting point Fonz indeed.

The issue is not about the host being any sort of producer.
It's about location, location , location.
The feds wouldnt ask the host to provide any 2257 docs. They would ask the host to shut down the site if the owner couldnt provide the docs.

Depends on which part, and where you fit in the loop.

Having the info is probably OK. Giving it out to anybody else, including the DOJ, could pull massive fines.

US server hosts are not responsible for the content on the servers. That has been through the courts before. The DOJ might be able to order them to shut you down though.

They might also be able to interfere with the money flow from sponsors somewhat.

The last 2 might be breaking NAFTA though. Bet, they never thought of porn when it was signed.

Agreed Fonz, but the authorities don't take copies of files they usually seize the equipment for proof at a trial.

--art

Make sure your server is not in the US. You might also want to consider using non-US sponsors.

--art

I really need to call my lawyer!!!

Think about it. Sure you "live" in Canada, but your hosting is in the US, your billing is probably in the US (if you run a paysite), your sponsors are mostly in the US.. All that can be stopped by the US! Am I wrong? I don't think so. Sure they may or may not come to Canada to arrest me, but they sure can shut me down pretty quit by making a couple of phone calls.

So maybe I wont go to jail and be someones bitch for a few years, but having no income feels just the same!

Yes, these are seriosus considerations.

Does anyone know of a not too expensive, reliable, Canadian company, that will host adult content?

I think your all fucked

I sent you a PM. ... art

Okay, here is my take:

The key to 2257 is where the publishing takes place. 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 (there is nobody from my company at the servers). Nobody at that point can change or alter the content of the pages or exercise editorial control, so those servers are just distribution points, exempt from 2257 regulations. This is why we don't all have to send copies of the documents to our webhosts.

As I am in Canada, I will adhere to Canadian law. I have licenses for my content, and it is perfectly legal in Canada to publish images of adults having sex. Heck, my local video store also stock peeing and fisting videos.

For models that I shoot for sale outside of Canada, I will require in the future a disclaimer to allow for model information to be revealed as required by 2257. For previous models, I will contact the ones I need to get ahold of and get the documents if they are truly required.

For my video editing customers, I will require no additional documentation, I don't need 2257 documents, I don't need any extra stuff. There is a potential however for an additional document indicating that you are the primary or secondary producer, and that you state that models are of age, you have the documents, and that any requests for documents should be made to you. A copy of that sheet would be put in with any shipments coming from or going to the US.

If Dubya and his merry band of freedom removers attempts to apply the law to me in Canada, I will gladly fight them tooth and nail until such time that they go away. I will not be and not allow myself to be subject to US law unless I am physically in the US.

Alex

Seperate disclaimer: If any part of your company is in the US (specifically a company for billing, etc) or you present a US address for your company, then yes, I would say you are subject to 2257 all the way.

You can't have it both ways. If you need to be a US company for billing, then you are a US company for everything else too.

As for shutting down Canadian webmasters, let me just say that this sort of thing can't easily happen without at least some sort of reason, while my opinion of the DOJ on this matter isn't high, I also know they aren't a bunch of jack booted thugs who will randomly run around and pillage server farms to get rid of the porn. The backlash for that sort of action would have Dubya in deep and serious shit.

Avoiding US sponsors isn't really going to help or change anything. If my company in Canada sells support service to a US company, it doesn't mean we are suddenly subject to US laws on the content of that support - unless that content also violates Canadian law or international law.

At the end of the day, 2257 isn't a horrible law as passed by congress. The current tumor attached to it is revolting, and I am confident that Sundance vs Reno will be confirmed by a higher court as this goes forward.

Alex

I respectfully disagree

My US company and my Canadian company are two different entities.
One provides a small service to the other, and generates no profits. The only ties that bind them are my name as the President. I am a Canadian Citizen.

If international arms of US companies were obligated by default to follow US law, there would be no sweatshops, child labour, or a whole host of gross indecencies perpetuated around the world.

This is the basis of my remarks regarding entities which are formed within the US purely for the purpose of enabling access to US based third party billing providers:

"Four commenters objected to the inclusion in the definition of producer of parent organizations and subsidiaries of producers, claiming it was beyond the Department's statutory authority, did not specify which entities must comply with the statute, overrode state laws on business associations, and violated the principles of Sundance Assoc., Inc. v. Reno. While not confirming the validity of, or adopting, the specific objections of the commenters, the Department has eliminated the inclusion of parent and subsidiary organizations in the definition of producer."

|viking|

Okay, here's a question for you: When I go to your signup pages, I get this:

[quote] Content Provided By:
Linc Communications
US[quote]

Who actually provides the content of the site? If you have made a declaration to CCbill that your US company is the beneficial owner of the sites, then that beneficial owner may also accept the responsibilities. It might put you in a position where legally your canadian company is looked at as a support or even an outsource, rather than the publisher.

Can you explain what you mean by this?

Alex

wazza, the issue of companies for billing is more complicated than just being arms or subsidiaries. In order to obtain processing, these US companies must declare themselves as owners or in control of the websites in question. Excluding parent ot subsidiary organizations just means that if a company has a sub created for a production, the principal company is not ALSO required to hold the records. The primary (or secondary) producer holds the records.

Of course, that would go out the window if sub "a" makes content and sub "b" runs websites with it. It is likely that each one would have to have records, one as the primary producer and one as the secondary producer.

This isn't simple!

Alex

I have three words for my Canadian friends: Paul Kent-Snowsell.

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.)

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

"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.

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.

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

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.

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.

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

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

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

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

Alex

With respect for all opinions;

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?

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.

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

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