Massachusetts Has a Problem: The Unconstitutionality of the Tax Deed

The predominant method for collecting delinquent real estate taxes in Massachusetts is the use of the “tax deed” as authorized by Chapter 60, Sections 53-54. Under the authorized procedures, each municipality’s tax collector can execute and record a deed that transfers fee simple title to the real estate to the municipality subject to the taxpayer’s statutorily created redemption right. If the redemption right is or cannot be exercised, all of the taxpayer’s rights in the property, as well as other’s rights created by encumbrances such as mortgages, are terminated by the foreclosure process provided for in the statute. Importantly, the municipality does not obtain title to the taxpayer’s land by foreclosure; instead, it merely frees itself of any remaining claim by the taxpayer. The problem with the tax deed procedure is that it fails to provide both procedural and substantive due process to the taxpayer. Procedurally, although adequate notice is given, title to the taxpayer’s real estate is taken by the government without a hearing. Based on an unreviewed decision by a municipal tax collector, the taxpayer immediately loses title to the land. Substantively, by using a tax deed, the municipality engages in the taking of property without providing reasonable compensation. The value of the land taken for payment of the tax debt is not evaluated in the context of the debt owed. Empirical evidence shows that the property’s value significantly exceeds the debt owed, giving the municipality the ability to collect almost fifty dollars for every dollar of delinquent real estate tax owed, on average. Each year, approximately $56,000,000 is unconstitutionally appropriated from taxpayers. This Article will explore these problems

Technology Drives the Law: A Foreword to Trends and Issues in Techology & the Law

Technology has always been a motivating force of change in the law. The creation of new machines and development of novel methods of achieving goals force the law to adapt with new and responsive rules. This is particularly true whenever a new technology transforms society. Whether it is increasing industrialization or computerization, pre-existing legal concepts rarely survive the transition unaltered - new prescriptions are announced while old ones disappear

Technology Drives the Law: A Foreword to Trends and Issues in Techology & the Law

Technology has always been a motivating force of change in the law. The creation of new machines and development of novel methods of achieving goals force the law to adapt with new and responsive rules. This is particularly true whenever a new technology transforms society. Whether it is increasing industrialization or computerization, pre-existing legal concepts rarely survive the transition unaltered - new prescriptions are announced while old ones disappear

A Jukebox for Patents: Can Patent Licensing of Incremental Inventions Be Controlled by Compulsory Licensing?

The patent system today no longer follows the classic understanding of how it is designed to work. In theory, to avoid infringement, a product developer searches the database of issued patents looking for those that might read onto the product being developed. If such patents are found, the developer can approach the patent holder for a license, can attempt to design around the claims, or can abandon the project. With many hundreds of thousands of patents being issued annually—a rate of issuance almost an order of magnitude larger than a hundred years ago—it is now a practical impossibility to search for collisions. Last year, for example, approximately 760 new utility patents were issued every day. In any major technological area, there are not enough hours in the day to read, understand, and apply the outstanding patents that might cover a new product. As a consequence of the overwhelming number of new patents (as well as the declining probable validity of them), innovation companies have changed the way they use patents. Recently, for example, a patent practitioner from a major computer firm described his company’s current strategy of using patents as deploying the haystack rather than the needle. Discovering that a particular patent reads onto a competitor’s product is no longer the method of analysis; instead, he wants to be able to throw hundreds if not thousands of patents at any opponent asserting that they are being violated. The financial reality of patent defense makes defending against a single patent costly; doing so against a haystack of them is prohibitively expensive. As the practitioner described it, as long as his haystack is bigger than the other company’s haystack, he is going to win. In effect, therefore, the marketplace for licensing patents no longer works, making it unreasonable to expect the classical patent model to operate. This paper presents an alternative based on copyright law concepts. As music distribution technology expanded throughout the twentieth century, it became prohibitively expensive for a music copyright holder to trace who was performing the work. In other words, as is now being seen in patents, the viability of one-on-one licensing disappeared. To address this, copyright law creates several licensing mechanisms for different uses of music that establish the royalties that will be owed through an administrative process. An individual who is using recorded music need not seek out the copyright owner for permission to use a work of music; instead, by paying the set royalty, non-infringement is ensured. Most patents today would be better managed by a system of mandatory royalties. This system would have to be sensitive to the field of invention as well as the inventive scope of the patent claims. This paper will present such a system and defines the outlines of how it would work. The system will include most patents, but will allow some exceptions where, for example, the patent owner desires to maintain the patent rights exclusively for the owner’s product or to engage in limited direct licensing

Creativity Revisited

The University of New Hampshire\u27s Scholarship Redux Conference invited a reexamination of an earlier work of IP scholarship to address what has happened in the area since the time of its original publication. As my contribution to the Conference, I revisited my 1997 article that discussed the consequences of the increasing sophistication of artificial intelligence ( AI ) on the production of new copyrightable or patentable works as well as the follow-up article I published in 2004 that focused expressly on copyright law. The primary call of the conference was to discuss the legal predictions [that were] right -- or wrong! In line with the call, this essay will present both the wins and losses from my earlier scholarship and will then suggest where future research is needed

Intellectual Property Rights in an Attorney’s Work Product

This paper addresses the main intellectual property consequences of practicing law and whether attorneys can prevent others from using their work-product. The article does not assume that the reader is an expert in intellectual property law; instead, it is designed to answer the types of questions practitioners have about their rights. There is one primary legal code that impacts attorneys’ rights to their work-product: the copyright law. As a broad statement, copyright law protects how an author expresses ideas. It is the system that is used to prevent others from copying a book, a movie, a musical composition, or even a computer program. It is almost exclusively a federal statutory remedy as comparable state protections have been preempted. As much of what an attorney does is expressing ideas in writing, the copyright system is the most important method of protecting an attorney’s work-product

Design Patent Infringement Needs a Free Expression Defense (La infracción de patentes de diseño necesita una defensa de libre expresión)

English Abstract: As elsewhere in the world, design patents are propagating copiously in U.S. intellectual property law. Notwithstanding their fertility, design patents face potentially prohibitive and as yet unexplored legal challenges. One possibility is that the U.S. Congress might lack the very power to authorize design patents. Another possibility – our subject here, with implications for design patents in Europe and around the world – is that design patents violate fundamental rights if there is not a defense to infringement founded in the freedom of expression. Spanish Abstract: Las patentes de diseño se propagan en abundancia en el derecho de la propiedad intelectual. Mientras tanto, las patentes de diseño enfrentan desafíos legales aún inexplorados. Enfocándose en la ley estadounidense, este artículo postula que las patentes de diseño violan los derechos fundamentales si no hay una defensa a la infracción fundada en la libertad de expresión. Diseño es único entre las patentes debido a su capacidad expresiva. Por lo tanto, debe acomodarse a la libertad de expresión con defensa de uso o trato justo, comparable a la ley de los derechos de autor

The Constitutionality of Design Patents

Design patents have been part of American law since 1842. In that time, only just over 600,000 design patents have been issued, with more than half of these being granted in the last twenty years. This quantity is dramatically fewer than the number of utility patents issued which is rapidly approaching 9,000,000 issued patents. Possibly because of the low usage of design patents over time, no case law and little literature address the constitutional issues raised by them. This article intends to overcome that shortcoming. Two constitutional aspects of design patents will be examined. First, congressional authority to adopt the design patent laws will be examined. The Constitution in Article I, Section 8, Clause 8 grants Congress specific powers to adopt both patents and copyrights. When a design is examined, it is unclear that it is an invention making its patentability suspect. At the same time, establishing a design as a writing is not problematic, leading to its eligibility for copyright. In this case, the clause itself must be examined to determine if something that qualifies only for copyright protection can nevertheless be granted a patent. The words chosen in the clause, particularly based on the way some of them were used in the Eighteenth Century, suggest that the answer is “no.” Of course, any historical analysis of the Constitution may prove to be an inaccurate predictor of how modern courts would address an issue, but this analysis does suggest a significant Article I problem for design patents. Second, even if the Article I problem can be overcome, serious First Amendment issues are raised. Unlike a utility patent, design patents are far more likely to have direct impacts on speech. If so, the patent laws would have to accommodate that speech unless there is a compelling governmental need for it to not do so. Copyright law, for example, avoids much of this First Amendment conflict through the recognition of the Fair Use Defense under 17 U.S.C. § 107 which allow society to use copyrighted materials despite the legal protection where important First Amendment issues are raised. Patent law has no such defense, but may need one to avoid constitutional problems