Welcome back to Legal Geek. This week, we update the result of when Spiderman and patent royalties went to the Supreme Court, and also look at an interesting title conferred on one Texas judge this month.
https://archive.org/details/LegalGeekEp48
Back in December, this segment described the Supreme Court case from this term focusing on the patent law doctrine of banning any royalty payments past the 20 year expiration of a patent as compared to private contractual rights. Specifically, a Spiderman web shooter toy creator was trying to enforce royalties against a third party Marvel when those royalties were not explicitly tied to the patent Marvel bought from him and the contract had no set termination date.
A couple weeks ago, the Supreme Court upheld the so called Brulotte Doctrine, maintaining the rigid prohibition of royalty payments beyond 20 years in the patent context. Considering this doctrine is 50 years old and the contract at issue was related to a patent transfer, perhaps we should not be surprised. However, I had guessed incorrectly in December that this case was taken up by the Court to trim away a bit of the overreaching of patent law into private contractual agreements, so the result is a bit of a surprise at least to me.
Of course, for the many comic nerds among us, the important thing is Marvel wins. Web shooter toys for everyone!
Also, the majority opinion written by Justice Kagan sneaks in a few Spiderman and superhero quotes, which just shows at least some justices have a sense of humor. This includes a statement that "Patents endow their holders with certain superpowers, but only for a limited time." She also notes that with 50 year old precedents, the authority to overrule such well-established precedents is an authority that should be exercised sparingly because...yes indeed, "with great power there must also come great responsibility." Well done, Justice Kagan.
Finally, a quick news item from early June was worth mentioning as well if you missed it. A Texas Supreme Court judge who is very active on twitter has been deemed the Official Texas Tweeter Laureate by the Texas House of Representatives. His mastery of social media is likely key to winning re-election in a state like Texas that elects judges, and it is refreshing to see a judge not getting into trouble for tweets as is usually the case when these two topics mix. Although the title is meaningless, let's hope for more Tweeter Laureates among the judiciary so we can all have a better understanding of the men and women behind the robes.
Bottom Line: Although other cases will always receive more public attention than small patent law decisions, it is fun to see that even the Supreme Court can take itself a bit lightly when dealing with fun topics like Spiderman toys.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, June 25, 2015
Legal Geek No. 47: Obamacare Lives (Again)
Welcome back to Legal Geek. This week, we review one of the two highlight decisions of this Supreme Court term, the healthcare decision in King vs. Burwell issued earlier this week, including a dissent that is one for the ages.
https://archive.org/details/LegalGeekEp47
For the second time, a challenge to the Affordable Care Act, also known as Obamacare, has reached the Supreme Court. Also for the second time, the administration earned a big victory against challengers to the healthcare law.
No matter what side of the healthcare debate you fall on, two things are notable about this decision:
First, a 6-3 majority of the Court did not stop as expected at providing deference to an IRS rulemaking decision to allow for federal tax subsidies for insurance purchasers buying on federal and state insurance exchanges; instead, the majority deemed that this is an issue of deep economic and political significance that should not be left to mere IRS rulemaking, which could be overturned by another administration later.
In other words, the Court decided that the correct reading of the legislative intent of the law must absolutely mandate that subsidies be made available to consumers in all 50 states, regardless of whether a state sets up an insurance exchange or relies solely on federal exchanges. Even though this holding is inconsistent with the way the law actually reads, the decision has bolstered this potential weak point in the healthcare law and has ensured that the critical financial subsidy backing portion of the law works for everyone.
This is yet another case where the more liberal mindset of legislative intent duked it out with the more conservative mindset of strict interpretation of laws as written. This time, the legislative intent won, but Congress and the Obama administration should be happy because the law was not as carefully drafted as it could have been to avoid such weak points, thereby leaving it open to the type of ideological debate common to many Supreme Court decisions.
The second notable part of this decision is the scathing dissent from Justice Scalia, who is a staunch supporter of strict constructionist law interpretation. One can immediately understand why he's not amused that a law that reads one way is being interpreted to mean something wholly different by the majority.
His dissent is worth a read for entertainment value, but here are some highlights. He says words no longer have meaning if an exchange that is not established by a State is interpreted to be covered by "established by the state." He characterizes the majority opinion as interpretive jiggery-pokery and PURE APPLESAUCE at different points. Yes, applesauce. He then caps the dissent by observing that the Court rewriting the law to fix it so that tax credits apply everywhere should make people start calling the law SCOTUScare instead of Obamacare.
Bottom Line: With two challenges now defeated, Obamacare appears to remain the signature achievement of the Obama presidency, and one that will not go away anytime soon.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp47
For the second time, a challenge to the Affordable Care Act, also known as Obamacare, has reached the Supreme Court. Also for the second time, the administration earned a big victory against challengers to the healthcare law.
No matter what side of the healthcare debate you fall on, two things are notable about this decision:
First, a 6-3 majority of the Court did not stop as expected at providing deference to an IRS rulemaking decision to allow for federal tax subsidies for insurance purchasers buying on federal and state insurance exchanges; instead, the majority deemed that this is an issue of deep economic and political significance that should not be left to mere IRS rulemaking, which could be overturned by another administration later.
In other words, the Court decided that the correct reading of the legislative intent of the law must absolutely mandate that subsidies be made available to consumers in all 50 states, regardless of whether a state sets up an insurance exchange or relies solely on federal exchanges. Even though this holding is inconsistent with the way the law actually reads, the decision has bolstered this potential weak point in the healthcare law and has ensured that the critical financial subsidy backing portion of the law works for everyone.
This is yet another case where the more liberal mindset of legislative intent duked it out with the more conservative mindset of strict interpretation of laws as written. This time, the legislative intent won, but Congress and the Obama administration should be happy because the law was not as carefully drafted as it could have been to avoid such weak points, thereby leaving it open to the type of ideological debate common to many Supreme Court decisions.
The second notable part of this decision is the scathing dissent from Justice Scalia, who is a staunch supporter of strict constructionist law interpretation. One can immediately understand why he's not amused that a law that reads one way is being interpreted to mean something wholly different by the majority.
His dissent is worth a read for entertainment value, but here are some highlights. He says words no longer have meaning if an exchange that is not established by a State is interpreted to be covered by "established by the state." He characterizes the majority opinion as interpretive jiggery-pokery and PURE APPLESAUCE at different points. Yes, applesauce. He then caps the dissent by observing that the Court rewriting the law to fix it so that tax credits apply everywhere should make people start calling the law SCOTUScare instead of Obamacare.
Bottom Line: With two challenges now defeated, Obamacare appears to remain the signature achievement of the Obama presidency, and one that will not go away anytime soon.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Tuesday, June 9, 2015
Legal Geek No. 46: Will Internet/Use Tax fall afoul of the Dormant Commerce Clause?
Welcome back to Legal Geek. This week, we answer a listener question from James regarding a recent Supreme Court case on interstate commerce and fairness in taxation.
James asked about why the Supreme Court deemed that double taxation on personal income is not OK under the dormant commerce clause in a recent decision, while internet use tax is acceptable. The case James refers to is Comptroller of Maryland vs. Wynne.
To briefly summarize, the Wynnes work in a different state and live in Maryland. Maryland, like most states, collect income tax from residents of Maryland who work there or in other states, and also from non-residents who work in Maryland. But unlike most states, Maryland did not provide a tax credit or reduction for income taxes paid by residents who work in other states and have the typical income tax collected by those other states. This means residents of Maryland working outside the state ended up paying income tax twice, to Maryland as well to as the state of employment. This was challenged as unconstitutional.
The Supreme Court ruled in a split 5-4 decision that Maryland's lack of a tax credit to avoid such double taxation was unconstitutional under the dormant commerce clause. The dormant commerce clause is an interpretation of the interstate commerce clause and allows courts to bar states from passing legislation that improperly burdens or discriminates against interstate commerce. Essentially, the majority in the Court deems that this state tax policy is an improper burden on interstate commerce because it hampers the ability of Maryland citizens to work in other states.
Despite the close decision, we will assume that the controlling legal theory is now that unbalanced income tax laws are improper. Which brings us to James's question: why is the similar unbalance in state use tax laws permissible?
Use taxes are assessed upon tangible personal property purchased by a resident of the assessing state for use, storage or consumption in that state, regardless of where the purchase took place, including online. This is a way for states to make up for lost sales and sales taxes within their state, especially in the modern era of heavy internet commerce.
On its surface, this type of tax policy looks unfavorable to residents in a similar way as the Maryland income tax law was for the Wynnes. Indeed, the recent Supreme Court decision could potentially apply to use taxes as well. But one key difference from double income taxes is that use taxes applied to out-of-state purchases is arguably not discriminatory against interstate commerce, but instead, evenhanded by making all sales to residents within a state subject to the same level of tax.
In addition, in rare circumstances where a sales tax is collected by an out of state business shipping to a customer in another state, the customer's state generally allows a tax credit to reduce use taxes by this sales tax paid to the other state. Thus, there does not appear to be a true double taxation problem in the sales and use tax context. Quite frankly, that could be the type of factual situation needed to prompt Congressional or judiciary action under the commerce clause.
Bottom Line: although the dormant commerce clause may someday be used to help better regulate sales and use taxes, for now, the generally evenhanded nature of these taxes when taken in combination probably protects them from constitutional scrutiny, so long as states don't make the mistake of disallowing tax credits for the rare sales tax collected on out-of-state transactions. In all other respects, any inequality is simply the same as states which charge different income tax rates, which has not been deemed a violation of the dormant commerce clause either, for what it's worth.
Thanks James for your thought-provoking question!
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, June 5, 2015
Legal Geek No. 45: Scalia's Patent Trolls and Listener Q About Contracts
Welcome back to Legal Geek. This week, we answer a listener question form Nic and also take a quick look at an interesting development in the war against patent trolls.
https://archive.org/details/LegalGeekEp45
Listener Nic wrote in on Twitter to ask about a little firestorm that popped up last week regarding a subscriber agreement contract that was proposed to go into effect for users of the Let's Encrypt service, a new free service for providing SSL/TLS digital certificates for use on your domain names and websites. This proposed Agreement required the user to make a number of warranties to be allowed to receive a Let's encrypt Certificate, including that you have not participated in a seizure of a domain name, and that you will not use your Certificates to attack, defraud, or intercept traffic of others.
Among other things, this laundry list of warranties was objectionable because read in a broad sense, even companies like Microsoft have previously participated in seizures of domain names. Put simply, it is not unusual to have a long list of representations and warranties between parties when formalizing a contract, and it's also not unusual for many of these to be regular or boilerplate copied from other similar agreements. However, in this case, a bit more careful drafting could have likely avoided the potential problems altogether.
Although a 2 minute segment is not long enough to dive into other deep nuances of this particular user agreement, it does reveal a couple of important life and business lessons you must understand:
First, you have to read and understand the entirety of any agreement or document you are signing. If you don't understand a contract, don't sign it until you discuss it with the other party or with legal counsel. It's a simple rule to keep yourself out of really bad situations. Second, every agreement is different and there really is no such thing as a form contract. If something in a form contract is not in accordance with what you want to agree to, then tell the party drafting the contract to change it. If they won't, then you either don't have the agreement you really wanted anyway, or the other side is just not worth dealing with.
Nic also asked about jurisdiction, but we will save the specifics on that for another day. Generally speaking, jurisdiction is the right a court has to have you forced to litigate there, and it essentially comes down to where you live and where you do business.
Thank you Nic for your question, and if you have a burning legal topic that you want to hear on this segment, please do like Nic did and send it to @BuckeyeFitzy on Twitter.
One final news item is worth a short mention as well, as we come into June and the end of the Supreme Court decision making for the year. A patent case regarding secondary or induced infringement was decided this week, and in the dissent, Justice Scalia referred to the term "patent troll" for the first time. This is interesting because the largely pejorative term has been avoided in the past by courts of the highest level, as it implies some negative assumptions about at least one of the parties in litigation.
But by directly identifying the issue by the common name and indicating that the courts have plenty of tools to deal with this problem, the Supreme Court has made an interesting move in essentially telling Congress to back down and let the judicial branch solve this problem. It's unclear if Congress will listen.
The Bottom Line: always understand what you sign, and keep an eye on the other highly interesting Supreme Court rulings to come out this month, including the most notable decision on gay marriage. You will certainly see something interesting one way or another!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Listener Nic wrote in on Twitter to ask about a little firestorm that popped up last week regarding a subscriber agreement contract that was proposed to go into effect for users of the Let's Encrypt service, a new free service for providing SSL/TLS digital certificates for use on your domain names and websites. This proposed Agreement required the user to make a number of warranties to be allowed to receive a Let's encrypt Certificate, including that you have not participated in a seizure of a domain name, and that you will not use your Certificates to attack, defraud, or intercept traffic of others.
Among other things, this laundry list of warranties was objectionable because read in a broad sense, even companies like Microsoft have previously participated in seizures of domain names. Put simply, it is not unusual to have a long list of representations and warranties between parties when formalizing a contract, and it's also not unusual for many of these to be regular or boilerplate copied from other similar agreements. However, in this case, a bit more careful drafting could have likely avoided the potential problems altogether.
Although a 2 minute segment is not long enough to dive into other deep nuances of this particular user agreement, it does reveal a couple of important life and business lessons you must understand:
First, you have to read and understand the entirety of any agreement or document you are signing. If you don't understand a contract, don't sign it until you discuss it with the other party or with legal counsel. It's a simple rule to keep yourself out of really bad situations. Second, every agreement is different and there really is no such thing as a form contract. If something in a form contract is not in accordance with what you want to agree to, then tell the party drafting the contract to change it. If they won't, then you either don't have the agreement you really wanted anyway, or the other side is just not worth dealing with.
Nic also asked about jurisdiction, but we will save the specifics on that for another day. Generally speaking, jurisdiction is the right a court has to have you forced to litigate there, and it essentially comes down to where you live and where you do business.
Thank you Nic for your question, and if you have a burning legal topic that you want to hear on this segment, please do like Nic did and send it to @BuckeyeFitzy on Twitter.
One final news item is worth a short mention as well, as we come into June and the end of the Supreme Court decision making for the year. A patent case regarding secondary or induced infringement was decided this week, and in the dissent, Justice Scalia referred to the term "patent troll" for the first time. This is interesting because the largely pejorative term has been avoided in the past by courts of the highest level, as it implies some negative assumptions about at least one of the parties in litigation.
But by directly identifying the issue by the common name and indicating that the courts have plenty of tools to deal with this problem, the Supreme Court has made an interesting move in essentially telling Congress to back down and let the judicial branch solve this problem. It's unclear if Congress will listen.
The Bottom Line: always understand what you sign, and keep an eye on the other highly interesting Supreme Court rulings to come out this month, including the most notable decision on gay marriage. You will certainly see something interesting one way or another!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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