Xtube is based in Canada. That's how they're doing it at the moment.

Pornotube (based in the US) is trying to argue that they are not in any way involved in the publication of the content, they are simply an ISP. I think that argument is complete BS and would get shot down instantly if the justice dept. called them on it... but Pornotube is owned by AEBN, who has more money than God, so they probably figure that they will squash the government with legal motions if anyone ever comes after them. Not a strategy I would try.

For the moment, a lot of people are relying on the very thin ice of the Sundance vs Reno decision, which stated that secondary producers were not required to keep records. However, that decision was effectively rendered moot by 4472/2257A, which became law last summer. Most legal opinions I've heard indicate that 4472 can't be enforced until the new regulations go into effect, which hasn't happened yet. That's why you still see all of the TGPs and so forth... people are hoping and praying that Sundance will still hold, at least until the new regulations go into effect.

Personally, I wouldn't go anywhere near a TGP or anything involving hosted content for which you don't have records until all of these issues are cleared up.