Top Bucks Recent Injunction Compliance Mail

[Nymph]

Originally Posted by bluemoney

In that case I call "dibs" to pair up with Nymph

If you hold me before & after (durring if possible) in your strong arms sweetie...I'm all yours

(I've given up on playing hard to get)

[2MuchMark]

I was thinking that it is amazing that a statement that is as clear cut as the one from TopBucks can so blown out of proportion by Shellee Hale.

...has dodged maximum penalties
...you must obey it or you could be fined, go to jail, or worst
...violating the injunction or the law can result in a fine or jail time, etc. even if your not a Top Bucks affiliate.

It is a testament to the ability of the Republicans to stay on message: "Be Scared, America."

[helix]

If you had questions, disagreement, or a lack of understanding of the intent of the TopBucks email, why not contact them and ask for clarification before you make a post on an industry board?

Unless drama was your intent.

[Sexyteaser]

The "watchful eye" comment is easily supported, because I bet the Consent Decree requires the FTC to monitor compliance and report back to the court. Any failure to comply with the decree would expose you to contempt sanctions, and to further prosecution. Ask Brian Schuster of Xpics what being saddled with an FTC Consent Decree will do for your business over the long run. Or ask the Botto Brothers what it was like.

This is all a very tortured interpretation of my intention for this post!

Let me take you back to this comment you made Greg "It's not shutting down." and bring your attention to this:

The settlement as it stands was supposedly "made possible by Cyberheat's planned departure from the business of owning and promoting websites".

Was Cyberheat planning on "departing" the paysite business before?

Are they not being forced OUT of business by the DOJ?

Now let me just ask why you think that I am stirring up drama and fear around something that concerned me and affects the business I am fully invested in and a progrram I am supporting? I am just trying to operate a law abiding and consumer oriented company in the adult space - that is my choice.

I still believe that legal counsel should be advised before agreeing to these terms with Top Bucks - when you all have done that come back and let's talk further.

[sarettah]

Originally Posted by Shelleehale

Or ask the Botto Brothers what it was like.

You know RB? Hmm, maybe I'm wrong about you.

probably not though

I still believe that legal counsel should be advised before agreeing to these terms with Top Bucks - when you all have done that come back and let's talk further.

Why do we need lawyers when we have you?

[Mediaguy]

Originally Posted by Shelleehale

The "watchful eye" comment is easily supported, because I bet the Consent Decree requires the FTC to monitor compliance and report back to the court. Any failure to comply with the decree would expose you to contempt sanctions, and to further prosecution. Ask Brian Schuster of Xpics what being saddled with an FTC Consent Decree will do for your business over the long run. Or ask the Botto Brothers what it was like.

My whole point was that "compliance" is impossible since TopBucks, regardless of affiliates signing the "acknowledgement", won't be able to know if one of them is spamming until it's too late - just as was the situation with this lawsuit. TopBucks affiliates weren't allowed to spam, yet did.

Originally Posted by Shelleehale

This is all a very tortured interpretation of my intention for this post!

Well what did you intend by imputing that affiliates could be fined or jailed? There's no mention of that anywhere and it's not "between the lines" either.

Originally Posted by Shelleehale

Let me take you back to this comment you made Greg "It's not shutting down." and bring your attention to this:

The settlement as it stands was supposedly "made possible by Cyberheat's planned departure from the business of owning and promoting websites".

Was Cyberheat planning on "departing" the paysite business before?

Are they not being forced OUT of business by the DOJ?

I used "supposedly" because whether or not the settlement depended on them withdrawing from online business was irrelevant to the statement you made that they were forced to "shut down". There is no mention or intention of shutting down - there's a discrepancy there.

Originally Posted by Shelleehale

Now let me just ask why you think that I am stirring up drama and fear around something that concerned me and affects the business I am fully invested in and a progrram I am supporting? I am just trying to operate a law abiding and consumer oriented company in the adult space - that is my choice.

If you promote them and support them, sign the acknowdledgement - you already did when you signed up for their program by accepting their terms of service - no spam, period.

You run no chance of being fined or jailed by not signing their acknowledgement, you'll just be deleted from them and not allowed to promote them anymore.

Originally Posted by Shelleehale

I still believe that legal counsel should be advised before agreeing to these terms with Top Bucks - when you all have done that come back and let's talk further.

This is good advice, generally. But if you read their actual webmasters communique in the affiliate area and the "acknowledgement" agreement, you'll see it's a repeat of the original terms plus a mention of the injunction against spamming... so unless you plan to spam and try to get away with it or create a newsletter for one of your sites with a double-opt-in without consulting with TopBucks, there's nothing you should worry about signing (eletronically) their agreement.

It's very straightforward, short and free of legalese.

And nowhere threatens fines, jails or waterboarding :P

.

[sarettah]

Originally Posted by helix

Unless drama was your intent.

No, Helix, that couldn't be the reason for the thread. Man, don't you realize that she is just trying to educate and inform all of us who are unedumacated and uninformed.

She is trying to do us a service, ya know?









Yeah, that's the ticket

[softball]

Originally Posted by sarettah

No, Helix, that couldn't be the reason for the thread. Man, don't you realize that she is just trying to educate and inform all of us who are unedumacated and uninformed.

She is trying to do us a service, ya know?









Yeah, that's the ticket

That's why consultants make the big bucks.

[helix]

Originally Posted by sarettah

No, Helix, that couldn't be the reason for the thread. Man, don't you realize that she is just trying to educate and inform all of us who are unedumacated and uninformed.

She is trying to do us a service, ya know?

No thanks. I like facts.
Thats why I suggest the issue be taken up directly with TopBucks and not played out on a public forum,
but I also understand that is too logical and straightforward for somebody that has a different agenda.
Once again I focus on solving the problem and not spinning it so I can get some attention.
My bad.

I am pretty quiet on this board, but I love to read the posts. I thought I had noticed a distinct
behavioral pattern and a quick google search explains why.

btw...good luck with that anger management

[sarettah]

btw...good luck with that anger management

Thanx man. You know I need it I think everyone on the board knows how mean I am. But I'm trying to be better, really I am.








Trust me

[helix]

Originally Posted by sarettah

Thanx man. You know I need it I think everyone on the board knows how mean I am. But I'm trying to be better, really I am.








Trust me

I still cherish my picture of you...lol
I'm here for you buddy

[bluemoney]

Originally Posted by Nymph

If you hold me before & after (durring if possible) in your strong arms sweetie...I'm all yours

(I've given up on playing hard to get)

[Sexyteaser]

I just thought the following would have been imporant information to provide:

Main Points of the Can-Spam Act

• Outlaws the use of false or misleading headers.
• Outlaws the use of deceptive subject lines.
• Requires a clear and conspicuous opt-out mechanism within every commercial email.
• Requires the inclusion of a valid physical postal address within every commercial email.

The FTC (Federal Trade Commission) will be strict in their enforcement of the Can-Spam law and violators may be subject to “cease and desist” orders or penalties up to $11,000 per violation. Criminal prosecution is also possible in the case of egregious offenders, which can result in penalties such as fines, forfeiture of proceeds and equipment. The worst offenders will also be subject to prison time.

I guess we know that legitimate email marketers (such as yourself!) will likely not have to worry about the consequences mentioned above but it’s important to know about the seriousness of this law and how it pertains to affiliate marketing and current prosecutorial motives.

After reviewing the acknowlegment I believe the US Attorney will not be happy with the notice by Top Bucks and ask that it be revised and re- issued. I guess you all disagree with that and are just fine with giving your acknowledgment to the US Attorney's office to support future litigation against you if you are found non-compliant or if someone spams without your knowledge under your domain name or email address and are falsely accused and forced to defend yourself. Good luck with Top Bucks giving you all free legal advise on this one, they couldn't keep themselves out of litigation but maybe they will keep you from it but it looks to me like staying an affiliate and acknowleging this agreement you will be under the "watchful eye."

[sarettah]

Originally Posted by Shelleehale

I just thought the following would have been imporant information to provide:

Main Points of the Can-Spam Act

• Outlaws the use of false or misleading headers.
• Outlaws the use of deceptive subject lines.
• Requires a clear and conspicuous opt-out mechanism within every commercial email.
• Requires the inclusion of a valid physical postal address within every commercial email.

The FTC (Federal Trade Commission) will be strict in their enforcement of the Can-Spam law and violators may be subject to “cease and desist” orders or penalties up to $11,000 per violation. Criminal prosecution is also possible in the case of egregious offenders, which can result in penalties such as fines, forfeiture of proceeds and equipment. The worst offenders will also be subject to prison time.

I guess we know that legitimate email marketers (such as yourself!) will likely not have to worry about the consequences mentioned above but it’s important to know about the seriousness of this law and how it pertains to affiliate marketing and current prosecutorial motives.

After reviewing the acknowlegment I believe the US Attorney will not be happy with the notice by Top Bucks and ask that it be revised and re- issued. I guess you all disagree with that and are just fine with giving your acknowledgment to the US Attorney's office to support future litigation against you if you are found non-compliant or if someone spams without your knowledge under your domain name or email address and are falsely accused and forced to defend yourself. Good luck with Top Bucks giving you all free legal advise on this one, they couldn't keep themselves out of litigation but maybe they will keep you from it but it looks to me like staying an affiliate and acknowleging this agreement you will be under the "watchful eye."

Shellee, out of respect for DK, and in my new spirit of being a nice person (it's hard, but I am trying).

I think pretty much everyone on this board is all quite familiar with the CAN-SPAM law and it's ramifications.

Your last paragraph applies to everyone in the business whether they are affiliated with TopBucks or not. If someone spams from one of my domains, I will probably get called on it, whether I agree to the topbucks injunction or not. If I spam I will get called on it whether I agree to the injunction or not.

SPAM is illegal period. Agreeing to the injunction just states that you know you are not allowed to SPAM TopBucks sites. If someone didn't already know that then they were clueless to start with.

[Mediaguy]

Originally Posted by sarettah

Shellee, out of respect for DK, and in my new spirit of being a nice person (it's hard, but I am trying).

You are just as effective if not more so as a "nice" person...though i'll miss the old sarettah tho...

[Sexyteaser]

Well what did you intend by imputing that affiliates could be fined or jailed? There's no mention of that anywhere and it's not "between the lines" either.

Actually, lawyers are hired to read between the lines, and when they want to read between the lines of a Civil Consent Decree like the one Cyberheat agreed to, they read things like

Restonic Charged With Criminal Contempt
Court Finds Smith and Schlumberger Guilty of Criminal Contempt for Violating Consent Decree
Criminal Contempt for Violation of Consent Decree in Fair Labor Standards Act Case
FTC Holds Owner of Funderal Home In Criminal Contempt in 2002 for Violating Consent Decree He Entered into Ten Years Before


A finding of criminal contempt for violating a Consent Decree is proper under City of Richmond v. Thornton, 548 F.2d 123
when it is "proved beyond a reasonable doubt that a person willfully, contumaciously, intentionally, or with a wrongful state of mind, violated a decree which was definite, clear, specific, and left no doubt or uncertainty in the minds of those to whom it was addressed."

These legal principles should put rest to the notion that a Consent Decree enforcing CANSPAM regulations is of no greater legal effect than the CANSPAM act itself.

But if you need it made clearer, check out this brief by the Department of Justice, that says:

A key purpose of having clear, objective prohibitions in a consent decree is to avoid future litigation .... A Final Judgment can validly prohibit transactions, even if those transactions would not themselves independently violate the ... laws. A court's equitable power is broad, and not limited to enjoining illegal activity. The court can also impose prophylactic or remedial provisions that prohibit otherwise legal conduct if it concludes that those measures are an aid to, or are necessary or important for, ensuring effective relief.

Prophylactic relief -- or remedial provisions -- Now that I think of it, that's exactly what an industry full of jerkoffs and strung out on Viagra needs!

[Mediaguy]

Originally Posted by Shelleehale

Actually, lawyers are hired to read between the lines, and when they want to read between the lines of a Civil Consent Decree like the one Cyberheat agreed to, they read things like

Restonic Charged With Criminal Contempt
Court Finds Smith and Schlumberger Guilty of Criminal Contempt for Violating Consent Decree
Criminal Contempt for Violation of Consent Decree in Fair Labor Standards Act Case
FTC Holds Owner of Funderal Home In Criminal Contempt in 2002 for Violating Consent Decree He Entered into Ten Years Before


A finding of criminal contempt for violating a Consent Decree is proper under City of Richmond v. Thornton, 548 F.2d 123
when it is "proved beyond a reasonable doubt that a person willfully, contumaciously, intentionally, or with a wrongful state of mind, violated a decree which was definite, clear, specific, and left no doubt or uncertainty in the minds of those to whom it was addressed."

These legal principles should put rest to the notion that a Consent Decree enforcing CANSPAM regulations is of no greater legal effect than the CANSPAM act itself.

But if you need it made clearer, check out this brief by the Department of Justice, that says:

A key purpose of having clear, objective prohibitions in a consent decree is to avoid future litigation .... A Final Judgment can validly prohibit transactions, even if those transactions would not themselves independently violate the ... laws. A court's equitable power is broad, and not limited to enjoining illegal activity. The court can also impose prophylactic or remedial provisions that prohibit otherwise legal conduct if it concludes that those measures are an aid to, or are necessary or important for, ensuring effective relief.

Prophylactic relief -- or remedial provisions -- Now that I think of it, that's exactly what an industry full of jerkoffs and strung out on Viagra needs!

This might be fine if Cyberheat trangresses their consent brief but has nothing to do with me or an affilliate who signs or doesn't.

If I sign and don't transgress I'm not bound by anything to anything you blindly listed there.

If I sign and transgress, I'm violating the Cyberheat/TopBucks agreement as well as the law; Cyberheat/TopBucks may report me but they'll certainly cut me off.

Either way there's no fines or jail time involved or nomenclature enjoining legal consequences such as you suggested.

And your quotes and references are absolutely irrelevant here. Even if Cyberheat/TopBucks affiliates who signed the acknowledgement spammed anyway, Cyberheat/TopBucks would be exempted from reprisals.

The only way Cyberheat/TopBucks would be tainted is if said affiliates didn't sign the acknowledgement, spammed, and were still supported by Cyberheat/TopBucks.

No jail, no fines, no thing... irrelevancy won't buy the peanuts and popcorn to this three ring circus.

[Mediaguy]

Originally Posted by Shelleehale

Prophylactic relief -- or remedial provisions -- Now that I think of it, that's exactly what an industry full of jerkoffs and strung out on Viagra needs!

Oh, and this "industry full of jerkoffs and strung out on Viagra" is completely not the impression I've gotten from the shows I've attended, which may or may not be a few shows more than you have.

[2MuchMark]

Originally Posted by Shelleehale

Now that I think of it, that's exactly what an industry full of jerkoffs and strung out on Viagra needs!

So now we know what you really think of people in the adult industry. Nicely done, ShelleHale. The next time someone ELSE turns their back to you at a trade show, you will know why.