― Voltaire

“Don’t find fault, find a remedy; anybody can complain”

― Henry Ford

Adapt or perish, now as ever, is nature’s inexorable imperative.

― H. G. Wells

I have been hammering away at the SOPA and PIPA problem for some time now. However, even if we are successful in the defeat of these bills, it will not change the fact that there is a very real piracy problem. As I have explained in prior entries the “law and order” approach employed for the last few decades is not working. Technology changes everything. Even the practice of law is beginning to peel away from the traditional model. You are never going to eliminate piracy, but you can take a large bite out of it by altering the traditional business model of the copyright owner.

I was reading the article Copyright Sage Bill Patry On What Content Owners Should Do Now
http://bit.ly/AfImA2 . First off they are not kidding when they use the word “sage” with reference to this fellow. I agree with just about everything he says in this interview, including his statement about content holders; “I want them to be wildly profitable because I love their stuff.” Books and movies are my favorite things. No profits, no books or movies. Patry makes several points worth mentioning.

1. Focus on Access Not Copies: “Control over the reproduction of books, music and movies was forever the cornerstone of the content industry’s business model. * * * content owners should focus on expanding access through technology like streaming rather than controlling copies. ‘The answer to the contraband stuff is flooding the market with authorized versions.’” Think Netflix, which has become profitable even when they don’t have access to all the latest content. I never watched Lost until I had Netflix. I had to watch about four years of it to catch up, but how awesome is that? Stream it until you drop.

    

2. Pricing Matters As Much As Piracy: “holding out for Western level pricing rather than making digital media available at prices that consumers in developing nations can afford. This means increasing the customer base and making money from a larger number of small transactions.” Tiered pricing is common in many industries. You are not going to get fifteen dollars for your dvd in many countries. It has to be a volume business, or the illegitimate copies will keep on coming.

    

3. Focus On The Product Not The Law: (Amen, Hallelujah, Amen.)
   

    

   Media products, like those in other industries, have a finite life cycle and it’s ultimately futile trying to extend that cycle after consumers have embraced a new era of products. Publishing industries, though, are fixated on passing stricter laws in an effort to wring more revenue out of dated products. This is a mistake. “You can’t control through laws a product cycle that is over. Laws aren’t going to help you force people to buy things they don’t want to buy in the first place.” Patry suggests it’s better to focus on providing consumers with new products in “formats, places and times” they will embrace. (Once again, think Netflix.) He also suggests that publishers concentrate on value-added features. They can do so for digital products but also for legacy products like hardcover books and music compilations. Patry explains he recently refused to buy a $30 DVD of Kung Fu Panda 2 because there is no added value to justify the cost. But he will happily shell out much more than that for the beauty and tactile joy of an elegant edition.

There is room for profit and common sense with copyright. The industry I beginning to understand that: passing SOPA and PIPA will not fly under the radar like the passing of the DMCA. Social media has wrested a good deal of control away from content holders on the message of piracy. Here is a new message from the American People: Adapt or die. Also, deferring to you as content holder on the state of piracy and the solution to the same is no longer possible. With SOPA and PIPA you have shown beyond a shadow of a doubt that you cannot be trusted.

“Any civil liberties agenda was a complete non-starter with Congress and the Obama administration,” said Cindy Cohn, the Electronic Frontier Foundation’s legal director. “They had no interest in finding any balance in civil liberties.” * * * All told, the government has seized more than 350 domains taken as part of a forfeiture program known as “Operation in Our Sites” that began a little more than a year ago. The authorities were using the same asset-forfeiture laws used to seize cars and houses belonging to suspected drug dealers.* * * Consider that October marked the 25th anniversary of the Electronic Communications Privacy Act, the law that allows the authorities to access your e-mail without a court warrant.* * * The silver anniversary of ECPA had prompted the nation’s biggest tech companies and prominent civil liberties groups to again lobby for an update to what was once the nation’s leading privacy legislation protecting Americans’ electronic communications from warrantless searches and seizures.

The upshot of this article is that our right to free speech and to be free from unreasonable searches is headed out the window.

SOPA’s most frightening flaw is the future it predicts
http://t.co/NCgfIPxp

The bill also gives individual intellectual property holders such as record labels and cable companies the ability to issue similar notices to ad networks and payment processors, demanding the same kinds of remedies. Under the Digital Millennium Copyright Act, copyright-holders can issue takedown notices for individual bits of content, such as infringing You tube videos. SOPA extends a variation of that power to cover entire Web sites. The onus is then on the blacklisted sites to prove the absence of infringing content. * * * The bill also covers more than just infringement (the act of streaming copyrighted content, a felony under SOPA, carries a five-year prison sentence). It also covers “facilitating” such content. That term is so poorly defined, however, it could well apply to a hyperlink on an entirely unrelated Web site, or a single Tweet. The potential for self-censorship is glaring, as is the potential for false positives – how many sites will nuke non-infringing content, or links to such content, just to be safe? * * * And because SOPA also prohibits tools that could be used to get around the Attorney General’s blockade, it may also mean that the same anonymity and address-spoofing software used by activists and protesters will become illegal to U.S. Internet users (many of these tools, incidentally, are funded by the U.S. government, which has no problem with protesters in Iran or China using them). That’s in part why a number of human rights organizations have come out against the bill.

This is irony at its best. We foster our ideal of free speech in Iran and China, while simultaneously putting it in the shredder here at home. Understand that if the “coronation” of IP occurs in the form of SOPA, you will live in a fiefdom not a democracy. Only a king or dictator can do away with ideas that don’t suit them without just cause, or any repercussion.

The article below contains several examples of copyright wrongfully employed to either: (1.) silence critics; or (2) attempt to drum competitors out of business by making false accusations. I had a case once where a company tried to trademark and copyright a “type” of Chinese tea. Apparently, there is a great deal of money to be made selling tea. My client changed the name of their product and website. The competitor still sued and would accept nothing less than my client closing its doors and ceasing business.  Ultimately the trademark office denied the Plaintiff’s application stating that the name was merely descriptive of a type of tea, and the case settled.  Unfortunately, that was after months of litigation in federal court.  So you can imagine my reticence to hand Plaintiffs like that tools such as SOPA.  Tools that will be abused, and initially impossible to defend. You may not get any due process until you are already ruined financially as a business. In the example above my client would have been forced to “cease business” under SOPA, because their website visibility and ability to process payments would have been gone. There are many examples of unfair competition (or censorship) executed under the cover of intellectual property enforcement.    

Dumb Examples of Copyright Enforcement: http://bit.ly/s9hF4f

"Paranormalist" Uri Geller got YouTube to remove a video of a 1993 PBS piece that Geller did not own which debunked the psychic’s special abilities. The poster’s YouTube account was also suspended.

Competitors of dancer/model/actress Elizabeth "Sky" Ordonez registered the trademark ELIZABETH SKY and got Twitter, MySpace and Facebook to take down the actress’ pages based on nonsense claims of trademark infringement.

Most recently, Warner Bros. admitted that it did not bother to confirm whether a slew of content that it asked cyberlocker website Hotfile.com to take down actually infringed on its copyrights. (In a rare show of support for its users, the content publisher sued Warner Bros. for violating the DMCA by making a false take-down request.

Given the DMCA’s great "success" in fighting online copyright infringement, Congress has decided that copyright owners (read: Hollywood studios) should have even more tools to fight copyright infringement.

Accordingly, SOPA provides online advertising platforms and payment processors with DMCA-like immunity from lawsuits if they voluntarily cut ties with accused copyright infringers.

This means that parties who previously liked to use the DMCA to hamper their innocent competitors with inconvenient two-week content "time outs" will be able to use SOPA to freeze legitimate business advertising and payments as well.

A great breakdown of what you should and should not do with the internet as it relates to intellectual property. Second, EFF has kicked off a project to demonstrate copyright’s relationship to censorship.

Five things you should know about intellectual copyright and online sharing  http://bit.ly/tCEG4n

Global censorship tracked by new project http://bit.ly/vKtwc4

Electronic Frontier Foundation (EFF), in collaboration with over a dozen civil society organizations worldwide, today launched Global Chokepoints at www.globalchokepoints.org to document how copyright enforcement is being used to censor online free expression in countries around the world.

A recent study sponsored by Columbia University’s The American Assembly project revealed the prevailing American attitude towards copyright infringement. The article can be found at this link http://bit.ly/uirbci. The study reveals a people who overwhelmingly oppose the goals of the Congress in seeking to pass the “Stop Online Piracy Act” (SOPA) and the “PROTECT IP Act. Some highlights of the study include:

• Solid majorities of American Internet users oppose copyright enforcement when it is perceived to intrude on personal rights and freedoms.69 per cent oppose monitoring of their Internet activity for the purposes of enforcement. 57 per cent oppose blocking or filtering if those measures also block some legal content or activity.
• Comparable majorities (56 per cent) oppose government involvement in “blocking” access to infringing material. This number increases to 64 per cent when the term “censor” is used.
• Disconnection from the Internet, in particular, is very unpopular, with only 16 per cent in favor and 72 per cent of Americans opposed.
• Legal media services can displace piracy. Of the 30 per cent of Americans who have ‘pirated’ digital music files, 46 per cent indicated that they now do so less because of the emergence of low-cost legal streaming services; among TV/movie pirates, 40 per cent

Despite the beliefs held by the American people, their Congress seeks to quietly hand the “keys to the kingdom” to corporations and others whose interests do not align with freedom of speech.  Companies such as Google reject this legislation, further AOL, Ebay, Facebook, Twitter, and Yahoo have already given written statements to lawmakers to oppose SOPA and PIPA. These companies rely on your ability to freely express your ideas or resell legally acquired goods. Ask yourself if there would be a YouTube, Facebook, or even Word Press if this legislation was passed a decade ago?

David Rohde explores the issue of censorship in China and compares it to the current move by Congress to pass SOPA and PIPA. http://reut.rs/u1c8aZ  Mr. Rhode observes that China has most of the world’s internet users and is the most sophisticated at censoring the ideas consumed by those users.

China’s 485 million web users are the world’s largest online population. And the Chinese government has developed the world’s most advanced Internet censorship and surveillance system to police their activity. * * * But the (SOPA and PIPA) legislation is far too broad and will unintentionally bring elements of China’s censorship regime to the United States.

Under the current proposed legislation this power will not only belong to the government, but to any content holder with an axe to grind. If the financial crisis in this country has taught us anything, it should be that the “bottom line” cannot be the sole guiding factor in making policy.  While I do not believe this country will ever be as repressive as China, America is in for a very rude awakening if these bills pass. As in China, your online expression may become a matter of comply or be silenced. Perhaps the most poignant point in Rohde’s article is how the Chinese blogger deals with government policy.

And in a sign of the model’s success, many Chinese bloggers and journalists do not raise sensitive topics online. Asked if he tried to hide his true identity when he was online, the blogger laughed.

“We don’t hide,” he said. “We use self-censorship.”

The name of the article in thin the New York Times is: Reselling of Music Files Is Contested – http://nyti.ms/t5vGyM 

Songs on the service, which is based in Cambridge, Mass., cost 79 cents, as much as 50 cents less than the price of new tracks at iTunes. ReDigi users also get coupons worth 20 cents for each song upload for sale, effectively reducing the cost of a track to 59 cents. ReDigi’s fee ranges from 5 to 15 percent, a spokeswoman said.

A new company by the name of Re Digi is attempting to bring the concept of the used vinyl record store into the digital age. I hope they are successful, and that they have a very large litigation budget.  Funny how there were never any issues with used video games, records, and compact discs, but a digital file!  Heaven forbid you should attempt to resell a legal digital copy.  The music industry argument is that in order to transfer a digital file you must “copy” it, and therefore it is infringing.  Although not specifically stated in the article this is sure to be accompanied by “these files were licensed and not sold, and the transfer violates the license agreement.”  Far too many courts have bought this argument and essentially delegated Congressional authority in the Copyright Act to any particular company who drafts a license agreement.  The Copyright Act provides for the first sale doctrine, or that once a particular copy is lawfully sold the copyright owner no longer has control over that copy. Ordinarily when a contract conflicts with a statute, the statute wins.

The first-sale doctrine is a limitation on copyright that was recognized by the Supreme Court of the United States in 1908 (see Bobbs-Merrill Co. v. Straus) and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e., sell, lend or give away) a particular lawfully made copy of the copyrighted work without permission once the copyright owner has been paid value for the same. This means that the copyright holder’s rights to control the change of ownership of a particular copy ends once ownership of that copy has passed to someone else, as long as the copy itself is not an infringing copy.

If the first sale doctrine does not apply to digital files, you the consumer will end up paying a lot more. Under the music industry theory you have merely rented the music on your iPod.  As with any rental, you can only use it in a limited way, and all rentals come to an end. It makes me laugh when no one seems to understand the implications of “the cloud.”  You won’t even have a digital copy of your software, music, or movies, as you will only access them from a remote server. The end game is to force you to pay a subscription to access any and all copyrighted works, and to eliminate any resellers.  Don’t want to upgrade your windows XP for an operating system that does not work for you? Too bad, because it has already been updated on the remote server.  Thank you for your monthly payment.      

Didn’t content owners learn anything from the MP3 player?  Give people what they want, and charge them a fair price for it. Make lots of money. No, instead lets desperately cling to the way things are until they collapse. Then Apple as a middleman is far more prosperous than you as the content owner. Good idea. The strategy for content owners has not changed since 1982, when MPAA President Jack Valenti testified that the invention of the VCR was “to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Movie studios win lawsuit against Zediva http://bit.ly/uvtMDK  Zediva’s founders thought they had discovered a legal loophole for online viewing of movies by having customers rent DVDs physically located in the Silicon Valley. That way, Zediva wouldn’t have to wait for licensing deals with studios, which often withhold newer movies. *** U.S. District Judge John Walter in Los Angeles disagreed. He issued a permanent injunction Friday prohibiting the company from continuing its service.

Apparently shaking people down en masse for purported violations is not as profitable as it used to be.

Marshals ordered to seize $63,720 from Righthaven – News – ReviewJournal.com http://bit.ly/slriCS  U.S. marshals have been ordered to seize $63,720 from Righthaven LLC, a company that files copyright infringement lawsuits, to fulfill a judgment against the company. Lance Wilson, the clerk of federal court, this week signed a writ of execution that was requested by lawyers for Kentucky website poster Wayne Hoehn, who obtained the judgment for legal fees after winning a lawsuit Righthaven filed against him.

Copyright Troll Righthaven Teetering on the Brink | Threat Level | Wired.com http://bit.ly/sYHC0R

It is all about the brand name.  Taking a page from “big content,” copyright defenders in Congress rebrand PIPA the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act" or the E-PARASITE Act.  Cause if we say it enough ordinary citizens will have no sympathy for pirates, smugglers, or the e-parasite and we can slip this bill through.  The only problem is that under this act, you the ordinary citizen are easily converted into one or all of the above.

PROTECT-IP/E-PARASITE Act Gets A White House Petition | WebProNews http://bit.ly/rHeAjf  The bill would essentially require service providers to block access to certain sites, dependent on the accusation that they promote copyright infringement. The Senate-introduced PROTECT IP Act stated that the target of the new laws were sites that were “dedicated to infringing activities. Once the bill got into the House and was given its fancy new name, the reach was greatly expanded to target any “foreign infringing sites.”

This Congress seems determined to declare war on free speech. All you will need is money to remove opinions that are disagreeable or unflattering.  While the rationale for the bill is correct, the cure is not. 

Looks like Congress has declared war on the internet — “Tech News and Analysis http://bit.ly/vh0lzS the Stop Online Piracy Act, introduced in the House this week, would give governments and private corporations unprecedented powers to remove websites from the internet on the flimsiest of grounds, and would force internet service providers to play the role of copyright police.” .

House Copyright Bill Casts Dangerously Broad Net | Center for Democracy & Technology http://bit.ly/u8qNip

"Yesterday, key members of the House Judiciary Committee introduced a bill (H.R. 3261, the "Stop Online Piracy Act") that not only repeats that mistake, but dangerously extends the scope. Gone is any serious effort to narrowly target clear "bad actors" and to craft legislation that seeks to root out the "worst of the worst" — a phrase we have often heard from proponents of such legislation.  In its place is a bill that appears to impose sweeping new risks and responsibilities on websites offering legitimate online services and to give rights holders a powerful new club to wield against any online service they believe isn’t doing enough to police infringement.

Don’t Let Hollywood Break the Internet With the PROTECT IP Act! – Forbes http://onforb.es/rw3uBy

It’s the cure that is the problem. The PROTECT IP Act would allow copyright owners – movie studios and other content providers – simply to accuse a website of infringement, which could lead to that site being shut down by court order and entire links to the site being wiped clean from the Internet.  Any website with a hyperlink, such as Twitter, Facebook or a blog, would be subject to liability. More, non-infringing sites could be inadvertently shut down under the proposal. Indeed, the law is so far-reaching that it would force Internet providers like Comcast to block all access to the allegedly illegal site.

The potential for abuse by the notoriously litigious content industry is clear. Last year, when the government sought to shut down one child pornography site, it ended up affecting some 70,000 legitimate sites for several days, even notifying visitors that the sites – many of which were business sites – were purveyors of child pornography.

Poison Face Copyright Lawsuit – Noisecreep http://aol.it/vxAXU5  Glam metal heroes Poison are being sued for copyright infringement. The suit comes from Billy McCarthy and James Stonich and dates all the way back to the ’80s.  According to The Hollywood Reporter, the lawsuit was filed Oct. 19th in Illinois federal court. Talk about Laches, nothing like waiting thirty years to bring suit.

Judge Orders Talks in Montana Dinosaur Dispute http://bit.ly/t8LxDp Attorneys say the case is the first of its kind involving a copyright fight over dinosaur castings _ fossil replicas often used in museum displays. It pits a South Dakota research company against a Montana nonprofit that allegedly made unauthorized copies of castings from two t-rexes, dubbed Stan and Sue.  Funny the article does not mention that these castings were registered with the copyright office. Probably because they would have been laughed all the way to the exit doors.

Universal Uses Copyright To Censor Bad Lip Reading Parody; Why Not Embrace It? | Techdirt http://bit.ly/sENHio Just goes to show that although parody is specifically excepted from copyright infringement, it won’t slow down censorship.

PROTECT IP Act (Internet Blacklist Bill) Could Kill iCloud http://bit.ly/saqc8R

J&J, Notre Dame, Prada, Louboutin: Intellectual Property – Businessweek http://buswk.co/vgXvmh EU authority said it’s probing contractual arrangements between J&J and Novartis that may have had the “object or effect of hindering entry” of the generic drug onto the Dutch market. Paying a competitor in an attempt to restrict generic drugs once the patent expires. Sweet.   The University of Notre Dame has told a Kansas high school to quit using the leprechaun logo associated with its “Fighting Irish” football team, the South Bend Tribune reported.  This will be the fourth school the Golden Domers will have gone after.  Really? Are these schools really eating into your profit margin with their t-shirt sales? Maybe if you lay off, some of the bad karma apparently affecting the football program will dissipate. They really didn’t know the difference between a lateral and a forward pass?

Judge threatens to dismiss another Righthaven copyright lawsuit: A judge is threatening to dismiss another copyright infringement lawsuit filed by Righthaven LLC of Las Vegas for a familiar reason: Lack of standing. http://bit.ly/nYtggb

Viacom To NY Court: YouTube Allows ‘Rampant Copyright Infringement’ – A lawyer for Viacom Inc. warned an appeals court panel Tuesday that there will be greater exploitation of copyright material on the Internet if the court lets YouTube get away with a business built on "rampant copyright infringement." http://huff.to/nHk598

Screenwriter Claims Copyright Infringement In ‘Hangover Part II’ Lawsuit “The Hangover Part II” has been hit with another lawsuit.According to EW.com, a screenwriter Michael Alan Rubin has sued the studio and filmmakers over the film, claiming copyright infringement, defamation, fraud and other charges. http://bit.ly/p2LmeK

On July 21, 2011, registration and enforcement jurisdiction over the Interstate Land Sales Full Disclosure Act ("ILSA") moved from the Office of Interstate Land Sales under the Department of Housing and Urban Development to the Bureau of Consumer Financial Protection ("CFPB") under the Department of Treasury.

According to Ms. Twohig's July 14, 2011, CFPB teleconference, HUD’S "Guidelines for Exemption Available Under the Interstate Land Sales Full Disclosure Act" 61 Fed.Reg. 13596 (Mar. 27, 1996) that were drafted as practical guidance for interpreting ILSA, have been vitiated, at least for now. Ordinarily, I would disagree with such an action, but the courts in many instances have chosen to highlight one sentence of the guidelines while ignoring the rest of a relevant paragraph. When the CFPB deleted the guidelines, it ostensibly deleted all of the case law the relied heavily on the same. In other words, in one fell swoop they diminished the precedential value of any case that relied on HUD’S interpretation of ILSA set forth in the guidelines. While a clean slate is a promising start, it remains to be seen whether the transfer means real change, or will this new “independent” agency be hamstrung to the extent that no impact is really made. HUD was imbued with tremendous power to protect the buyer of properties subject to ILSA. If they found a violation they had the ability to force a complete refund to all purchasers. It would have been nice if HUD had stepped in and enforced 15 U.S.C. Sec. 1703(d) and facilitated the return of monies in excess of fifteen percent. (Read about it here.) I suppose that would have forced them to admit that Sec. 1703(d) had an anti-fraud component, which as you will see below, was not going to happen. A little history of HUD’s involvement in lawsuits brought by consumers illuminates the issue of why the HUD guidelines have been misused.

For instance, in Mayersdorf v. Paramount Boynton, LLC, 910 So.2d 887 (Fla. 4th DCA 2005) HUD provided assistance to the developer in the from of an opinion letter from Ivy Jackson, Director of ILSA and RESPA enforcement at HUD. The published opinion in Mayersdorf does not reflect this submission. The letter itself was not an official interpretation by HUD as an agency, rather it was the opinion of one of its directors. Unfortunately the Florida appellate court bought into this interpretation as if it were official and binding. Building on that success the “minority mafia” (that’s my pet name for the small group of developers who believe laws are optional. I like to make that distinction so as not to besmirch the good character of the majority of developers who get it right) had their shining star in the form of Ivy. As you might imagine Ivy’s letter, and support, would not stop there. The minority mafia loved this tactic, it was like having your own Attorney General to render opinion letters and change the law on the fly. Ivy’s letter returned (read Jackson affidavit and letter here) in Pugliese v. Pukka Development, Inc., 524 F.Supp.2d 1370,1371 (S.D.Fla.2007) reversed, 550 F.3d 1299 (11th Cir.2008), but the federal trial court was having none of it:

The Defendant cites to an opinion letter in further support of its position. That letter, authored by Ivy Jackson, the Director of the RESPA and Interstate Land Sales Office, was written to answer an inquiry “on the relationship of 15 U.S.C. § 1702(b)(1) to 15 U.S.C. § 1703”, in essence the very same issue now before this Court. The Director stated that “[t]he requirements of ... § 1703(d) do not apply to the sale or lease of lots that are exempt under the 100 lots provision of 15 U.S.C. § 1702(b)(1) (or any other exemption of § 1702)”, the same interpretation the Defendant is advancing. Because the U.S. Dept. of Housing and Urban Development (“HUD”) is responsible for the Act's administration, see 15 U.S.C. § 1715, the Defendant contends that the opinion letter should be “entitled to great weight and deference.” (Of note, the instant Defendant did not solicit the opinion letter.) * * * There is no case law addressing this issue, save for one. The final element of the Defendant's argument relies on the opinion rendered in the case of Mayersdorf v. Paramount Boynton, LLC, 910 So.2d 887 (Fla. 4th DCA 2005). In that case the Fourth District Court of Appeal agreed with the interpretation the Defendant now advances. This Court has taken Mayersdorf into consideration, and the case does support the Defendant's position. However, it, like the opinion letter, does not present binding authority, and because this Court reaches a different construction of the governing statutes, this Court does not find it to be persuasive.

This opinion was, of course, appealed by the developer. (Ivy would not be denied!) HUD filed an amicus brief in favor of the developer on appeal, which the Eleventh Circuit Court of Appeals adopted.

The letter from HUD's director of RESPA and Interstate Land Sales stated her opinion that “[t]he requirements of ... § 1703(d) do not apply to the sale or lease of lots that are exempt under the 100 lots provision of 15 U.S.C. § 1702(b)(1) (or any other exemption of § 1702).” This brief letter does not provide enough detail for this court to evaluate the thoroughness of HUD's reasoning. The stated opinion is, however, “consistent with earlier and later pronouncements” by HUD on this issue in the prior regulations that existed from 1980 until 1996. See 45 Fed.Reg. 40,497 (June 13, 1980) (adopting the now deleted regulations discussed above). In addition, the United States' amicus brief also represents HUD's interpretation of the ILSA warranting Skidmore deference. See Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (affording deference to an agency's interpretation of its regulations even when that interpretation was first expressed in an amicus brief to the Court). The brief is thoroughly reasoned and demonstrates a high level of consideration given to the issue; the brief thoroughly and rationally analyzes the statute, the legislative history, and the policy implications of the statutory interpretation. And the opinion set forth in the brief is consistent with the position HUD has always held on the meaning of “not exempt under section 1702” in § 1703(d). We thus owe Skidmore deference to the amicus brief.

Jared Beck did a good job in encapsulating buyer sentiment at the time, which you can read here. But even if the consumer had won at the Eleventh Circuit, HUD had that covered as well. There was a proposed rule change after the trial court decision in Pukka, which would have adopted the reasoning of, you guessed it, the Ivy Jackson letter. “Heads I win, Tails you lose” comes to mind. In any case, as far as ILSA matters went HUD was not on the buyer’s side during this period. Unfortunately for Ivy, someone decided that she was no longer the woman for the job in the new administration. (See a recap of the 2010 incident here.) So you can imagine my skepticism when a new agency is tasked with the enforcement of ILSA, which until now was virtually non-existent.

The current status of the BCFP is reflected in headlines such as; Republicans seek to handcuff Consumer Financial Protection Bureau http://bit.ly/pRUNXu; Disinformation About The Consumer Financial Protection Bureau http://bit.ly/qZQ71r; and Consumer Financial Protection Bureau can open without chief http://politi.co/pwtUYk. Perhaps BFCP will make a difference, but it seems more likely that lobbyists and Congress will render it HUD II. (I’d be ecstatic if they just avoid taking sides in court cases.) However, I will be happy to be proven wrong. If they truly make a difference in reigning in the minority mafia, I’ll surely tip my hat to the new constitution.

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