Moses Avalon



Tuesday, June 10, 2014
New Anti-Spam Law Will Impact Thousands of Musical Acts
Canada Spam
Moses Avalon
Let’s say you’re a music group with Canadian fans. Recently you emailed them announcing that you’re coming to town. But when you arrive, the local sheriff is waiting to seize your gear and fine you $1 million.
This might sound like a chapter out of Kafka or Orwell’s 1984, but it’s actually the not-too-distant future as proposed by the CRTC: Canadian Radio-Television and Telecommunications Commission (Canada’s variant of the FCC.)
Starting July 1, 2014 a new Canadian Anti-Spam Law called CASL will go into effect that is intent on fining all businesses, large and small, $1 million if they send even one email to a Canadian that was not double opted in with “express permission,” as vaguely defined by CASL.
CASL (pronounced “castle”) will infect and affect every touring artist in the US and Canadian music industry in severely negative ways.
For artists who have been using web-based form-mail as an opt-in method to convert subscribers, (pretty much every artist with a website) sending an email blast could result in millions in fines if any Canadians are on the list.
While it’s true that the Canadian Mounties will not likely be charging over the border too soon, the law will carry “territorial jurisdiction.”  Put simply, the CRTC could ask a United States Attorney General to enforce the law or, in the alternative, wait until the offending artist crosses the Canadian border and then seize assets which could include musical equipment.
The law calls for a $1 million fine for each individual piece of email–not each individual campaign. Which means a mailing list with even 10 Canadian recipients could result in $10 million in fines.
What’s more disheartening is that this law gives the CRTC authority to go to SOCAN, Canada’s performing rights society and seize royalties that are due the offenders.
In practical terms, it’s not likely that the CRTC will have the budget to go after small independent recording artists.  At first. Their initial  targets will be large institutions, such as  banks who spam predatory lending offers. However, after a few hearty fines are collected, it is not unreasonable, according to one Canadian legal expert, Barry Sookman, for them to set their sights on some of the more aggressive concert promoters. (Is there another kind?)
Sookman says, “The law carries with it ‘vicarious liability.’ This means that one person can be liable for the actions of somebody else.” In this case, the CRTC could go after the promoter and the venue if one of them was “spamming” Canadians, as that term is broadly defined by CASL.
Expect promoters and venues to begin scrutinizing acts carefully for compliance before accepting a booking.
The CRTC demands that every recording artist get “express consent” from each Canadian member of their mailing list before July 1, 2014. This requires figuring out who on a mailing list of potentially hundreds or thousands of opt-ins are Canadian, extracting their names, and then sending them another double opt-in permission email before proceeding to email them further. A task that experts on the subject agree will be impossible to do by the deadline.  For the most part there is no way to tell which emails on a list belong to Canadians without expensive tracking services.
In other words, there will be examples made, fines levied and assets seized. The only question is, who will be first?
According to Sookman, “Bands are in a worse position than many big businesses because there is a three-year transition period to get consent after you have sold something to someone from whom you may have assumed you had implied consent [to email].”
But, a band rarely has implied consent. When dealing with a live show there is rarely a physical sale or receipt from the venue for a door-charge.  “And so the law would treat a band less kindly than a large bank,” and act as if there was never any implied consent, said Sookman.  His firm offers a toolbox for people trying to comply with CASL.
Hard to say.  If your group relies heavily on revenue from a Canadian audience you might have to rethink your marketing strategy or hire from the growing community of consultants that are specializing in CASL compliance. (Not me. Please no emails, but Sookman’s website has  resources as well as articles analyzing the law.)
Or, or for the poor-man’s approach, if you’re a US band, you could simply stay out of Canada.  And if you’re a Canadian band, you could move to the US.
I cannot think of a more bone-headed move on the part of our sister country.   And all this time I thought they were supposed to be the kinder more polite America.
Mo Out.
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