Moral Rights and Copyright Claims about Che Guevara Parodies

by Paul Alan Levy

The personal and commercial heirs of the deceased photographer Korda, best known for the iconic photograph of Che Guevara that has adorned Tshirts and posters displayed by young admirers for fifty years, have issued a takedown demand to Liberty Maniacs over its sales of parody items that display the photo’s cap and hair but replace Guevara’s visage with, alternately, Donald Trump and Alexandria Ocasio-Cortez. Advancing claims both under the doctrine of moral rights and under copyright law, Randy Yaloz, a New York lawyer based in Paris who proudly identifies himself as "combative" (but wrote using an letterhead identifying himself as an adjunct professor at his alma mater, New York Law School, where he does not currently teach), demands both that the parodies be taken off the market and that the parodist pay damages.

Our federal financial regulators are busy defending predatory loans

Read this post by law prof Adam Levitin titled "FDIC and OCC Race to Court to Defend 120.86% Interest Rate Small Business Loan." It's not a pretty thing our federal regulators are doing. Here's an excerpt from Adam's post:

FDIC and OCC filed an amicus brief in the district court in an obscure small business bankruptcy case to which a bank was not even a party in order to defend the validity of a 120.86% loan that was made by a tiny community bank in Wisconsin (with its own history of consumer protection compliance issues) and then transferred to a predatory small business lending outfit. Stay classy federal bank regulators. FDIC and OCC filed the amicus to defend the valid-when-made doctrine that the bankruptcy court invoked in its opinion. FDIC and OCC claim it is "well-settled" law, but if so, what the heck are they doing filing an amicus in the district court in this case? They doth protest too much.

 

CFPB Abandons Defense of Its Own Constitutionality

For years, subjects of CFPB enforcement actions have challenged the constitutionality of the agency's structure, arguing that separation-of-powers principles forbid Congress to grant enforcement authority to an independent agency whose director is protected against being fired without cause by the President. Throughout that time, the agency has defended its own constitutionality, and has prevailed in the only two cases that have so far resulted in final decisions by federal courts of appeals: PHH Corp. v. CFPB, in which the U.S. Court of Appeals for the D.C. Circuit upheld the agency's structure, and CFPB v. Seila Law, in which the Ninth Circuit agreed with the D.C. Circuit. Now, even as challenges continue in two other circuits, the Second and Fifth, in which the agency has so far steadfastly defended itself, the agency has joined in a filing in the U.S. Supreme Court asking the Court to overturn the Ninth Circuit's decision in Seila Law and hold the agency's structure unconstitutional.

The Department of Justice had changed sides on the issue when the Trump Administration took office, and it argued strenuously against the position taken by the agency's own lawyers in PHH Corp. The CFPB, however, held its ground not only in PHH, which was briefed while Richard Cordray remained in place as the agency's director, but also in other appellate challenges briefed and argued after he stepped down and was replaced by Trump appointees--first Mick Mulvaney as Acting Director, and then Kathy Kraninger as Director.

However, after the agency prevailed in the court of appeals in the Seila Law case, the losing party filed a petition for a writ of certiorari asking the Supreme Court to hear the issue. The Solicitor General, after obtaining multiple extensions of time to respond to the petition, today filed a brief "acquiescing" in the request that the Court hear the case. The brief is signed not only by the Solicitor General and other DOJ attorneys, but also by attorneys for the CFPB, who join fully not only in the brief's request that the Supreme Court hear the case, but also in its argument that the Court should reverse the lower court's decision and hold the CFPB's structure unconstitutional. Also today, Director Kraninger sent a letter to congressional leaders informing them that the CFPB would no longer defend the constitutionality of the statutory provisions protecting its director from Presidential removal.

Because neither DOJ nor the CFPB will now defend the agency's structure, the Supreme Court will, if it takes the case, have to appoint someone else--a friend of the court--to argue in favor of the lower court's judgment.

More Responses to the Higbee Trolling Operation

by Paul Alan Levy

Back in June 2019, the last time I had occasion to write  about Mathew Higbee’s bullying pursuit of copyright claims against alleged infringers, he had just backed away from a confrontation on the part of one of the longtime members of his stable of clients, Quang-Tuan Luong, and had, indeed, suggested that he was reconsidering whether he would pursue future demands against the hosts of interactive web sites whose users were the ones to post allegedly infringing content.  Regrettably, it appears that the lure of illegitimate profit has led him not to take that path.

Consumer Law Professors Who Want to Read or Sign On to a Comment on the CFPB's Proposed Debt Collection Rule . . .

. . .  should get in touch with @daliejimenez.

Read this op-ed on CFPB's proposed rule authorizing debt-collection harassment

In May, the Consumer Financial Protection Bureau proposed new Fair Debt Collection Practices Act rules. In this op-ed, Jennifer Wagner (of Mountain State Justice) and Linda Frame (of the West Virginia Center on Budget and Policy) explain why the CFPB's proposed rules, issued under a law meant to curb debt-collection harassment, actually authorize debt-collection harassment. "The most brazen breach of consumer protection [in the proposed rules] ... is allowing consumers to be called up to seven times per week per debt. Someone with eight medical debts could hear the phone ringing 56 times a week." Ugh.

Federal Trade Commission issues staff report on class-action notices, redress methods, claims rates, and check-cashing rates; agency sets comment period and October 29 public meeting

The Federal Trade Commission has issued a staff report on class-action notices, redress methods, claims rates, and check-cashing rates based on the agency's survey of the results in 149 consumer class actions. The FTC has put together this home page on the report, which contains links to related information. 

Consistent with other data and anecdotal reports, the FTC staff report finds that claiming rates in consumer class actions are generally quite low. But check cashing rates -- that is, how often consumers cash checks received as relief in class actions -- generally are quite high. These two things -- (1) low claiming rates and (2) high check-cashing rates -- tell us that, whenever possible, class-action settlements should provide class members relief without requiring them to file claims. That is, so-called "claims-made" settlements should be avoided where possible. Put differently, class members want their relief, but a whole bunch of rigmarole suppresses class-member recovery. 

On October 29, 2019, the FTC will hold a public workshop in Washington, DC on improving class action settlement notices for consumers. The workshop is free and open to the public. Seating is first-come, first-served. The workshop is at the Constitution Center, 400 7th St., SW, Washington, DC, and will be webcast live. The October 29 workshop is intended to support the agency's continuing examination of the issues addressed in the staff report.

The FTC is asking for written comments on the report. Comments may be submitted electronically at Regulations.gov, or in paper form on these topics or other related topics through November 22, 2019. Paper comments may be mailed to FTC, Office of the Secretary, 600 Pennsylvania Avenue N.W., Suite CC-5610 (Annex B), Washington, DC 20580, or delivered to FTC, Office of the Secretary, 400 7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 20024. Commenters should write “Class Action Notices, Project No. P024210” on the comment so that it will be identified with the workshop.

 

"CPFB head misguided in reliance on consumer education"

That's the title of this piece in The Hill by law prof Lauren Willis. WIllis's bio notes that "[s]he is a leading critic of the use of financial education, disclosures, and 'nudges' (default settings) in consumer policy-making." Willis's Hill piece applies that critique to the regulatory approach of the Consumer Financial Protection Bureau under the direction of Trump appointee Kathy Kraninger. Willis's piece starts like this:

Imagine that your city’s water treatment facility announced tomorrow that it would scale back its work. Instead, the authorities would offer online classes and put up posters around town to teach city residents about contaminants and filtration. With slogans about “empowering consumers,” they would urge residents to make their own choices about the water safety level that’s right for them, based on individual health needs and taste preferences. People would surely protest. It is both foolish and cruel to put the onus on ordinary citizens to handle an issue that requires professional training to fully understand and that can devastate people’s lives if handled poorly. It seems cynically designed to relieve city administrators — and the businesses that impact the city’s water supply — of their responsibilities. Yet this is exactly what’s happening today in the consumer financial marketplace at the federal level.

Take the Abusiveness Challenge: Identify a Valuable Consumer Financial Product Not Offered Because of Uncertainty About Whether It Is Abusive

by Jeff Sovern

The Dodd-Frank Act gives the CFPB the power to act against entities within the CFPB's jurisdiction for engaging in abusive practices. See 12 USC 5531.  Though that section explains what the limits are to the Bureau's power to proscribe abusive conduct, the industry has long claimed that it needs additional guidance as to what is abusive. The industry argues that the statute's ambiguity will cause a company to withhold from the market a product at least some consumers want because the company fears the Bureau will find the product abusive.  There's just one problem with this scenario: despite the fact that the Dodd-Frank Act has been around since 2010, no one has actually identified such a product, at least not that I know of.  I have just finished listening to the Bureau's excellent symposium on abusiveness (and if you care about what abusive means you should listen to it too) and I didn't hear a single example of such a product. If you know of such a product, please describe it in the comments. It's not just a consumer-advocate talking point; if such a product exists and can be discussed, it would make the debate about abusiveness much more concrete. In the meantime, if no one can identify such a product, the Bureau should take its time before issuing a guidance or other document concerning the meaning of abusive, just as the FTC took decades to issue policy statements explaining the meaning of unfairness and deception. 

"How Amazon Hooked America on Fast Delivery While Avoiding Responsibility for Crashes"

ProPublica has a new report out today called "The Deadly Race: How Amazon Hooked America on Fast Delivery While Avoiding Responsibility for Crashes." The report explains that "Amazon has built a huge logistics operation in recent years to get more goods to customers’ homes in less and less time. As it moves to reduce its reliance on legacy carriers like United Parcel Service, the retailer has created a network of contractors across the country that allows the company to expand and shrink the delivery force as needed, while avoiding the costs of taking on permanent employees." But, the report continues,"Amazon’s promise of speedy delivery has come at a price, one largely hidden from public view. An investigation by ProPublica identified more than 60 accidents since June 2015 involving Amazon delivery contractors that resulted in serious injuries, including 10 deaths."

The full report is here.