Harvard Law Review Freaks Out, Sends Christmas Eve Threat Over Public Domain Citation Guide
from the don't-you-guys-have-something-better-to-do? dept
In the fall of 2014, we wrote about a plan by public documents guru Carl Malamud and law professor Chris Sprigman, to create a public domain book for legal citations (stay with me, this isn't as boring as it sounds!). For decades, the "standard" for legal citations has been "the Bluebook" put out by Harvard Law Review, and technically owned by four top law schools. Harvard Law Review insists that this standard of how people can cite stuff in legal documents is covered by copyright. This seems nuts for a variety of reasons. A citation standard is just an method for how to cite stuff. That shouldn't be copyrightable. But the issue has created ridiculous flare-ups over the years, with the fight between the Bluebook and the open source citation tool Zotero representing just one ridiculous example.In looking over all of this, Sprigman and Malamud realized that the folks behind the Bluebook had failed to renew the copyright properly on the 10th edition of the book, which was published in 1958, meaning that that version of the book was in the public domain. The current version is the 19th edition, but there is plenty of overlap from that earlier version. Given that, Malamud and Sprigman announced plans to make an alternative to the Bluebook called Baby Blue, which would make use of the public domain material from 1958 (and, I'd assume, some of their own updates -- including, perhaps, citations that it appears the Bluebook copied from others).
There hadn't been much said publicly in the 14 months or so since that announcement, but last week, Malamud started tweeting out some evidence that the book was nearing completion:
Laying BB 20 and Baby Blue neck to neck. Drinking whiskey while wrestling the future of legal citation to ground. pic.twitter.com/F2IRR4gL9y
— Carl Malamud (@carlmalamud) December 22, 2015Judges selected this 1869 chromolithograph as “Baby Blue of the Year 2015” https://t.co/b2qz0NNnhh L. Prang & Co. pic.twitter.com/yDkEnzkUuP
— Carl Malamud (@carlmalamud) December 23, 2015First, they ignore all the facts concerning how an earlier version fell into the public domain (and the ridiculousness of claiming copyright on citations) and again allege it will be infringing:
I write concerning Mr. Malamud’s recent Twitter postings, including several in the last few days, disclosing your imminent release of an “implementation of the Bluebook’s Uniform System of Citation” called “BabyBlue,” possibly as soon as December 31, 2015. Based on the description of “BabyBlue” in these and other postings, Prof. Sprigman’s November 25, 2015 interview in the NYU Journal of Intellectual Property & Entertainment Law, and earlier correspondence from each of you, we believe that “BabyBlue” may include content identical or substantially similar to content or other aspects of The Bluebook that constitute original works of authorship protected by copyright, and which are covered by various United States copyright registrations.And then they go on, in even more of a huff, claiming that the name BabyBlue would be trademark infringement, and warn them that they cannot make use of the word "blue" anywhere. Apparently, Harvard Law Review thinks it owns the word "blue" when applied to legal citations.
For the reasons set forth in our previous letters to Mr. Malamud dated July 2013 and May 2014 (copies of which are attached), my client has been and remains concerned that the publication and promotion of such a work may infringe the Reviews’ copyright rights in The Bluebook and The Bluebook Online, and may cause substantial, irreparable harm to the Reviews and their rights and interests in those works.
On a related issue, it appears from the NYU interview and the Twitter postings – including a photograph attached to one posting – that you intend to use the title “BabyBlue,” and the subtitle “A free, Creative Commons-licensed implementation of the Uniform System of Citation” in the version of your work released to the public. In addition, the pages shown in that photo include several explicit references to The Bluebook.Touchy, touchy. Harvard Law Review seems really, really worried that they might face some public domain competition, huh?
Please be advised that the Reviews are the collective owners of the registered trademarks THE BLUEBOOK (U.S. Reg. No. 3,756,727), THE BLUEBOOK ONLINE (U.S. Reg. No. 3,748,511), and THE BLUEBOOK A UNIFORM SYSTEM OF CITATION (U.S. Reg. No. 3,886,986) (collectively, the “BLUEBOOK Marks”). Given these rights, it is our client’s position that the title “BabyBlue,” or any title consisting of or comprising the word “Blue,” when used on or in connection with your work, would so resemble the BLUEBOOK Marks as to be likely, to cause confusion, mistake, and/or deception (including over whether “BabyBlue” was associated with or sponsored or approved by the Reviews), to the considerable detriment of the Reviews and in violation of their rights under the federal Lanham Act and state law. The same is true for the subtitle, which includes a portion of one of the registered BLUEBOOK Marks, and which suggests that “BabyBlue” is a “licensed implementation” of The Bluebook (which it is not). Likewise, several references to The Bluebook shown in the photo could reinforce the false and misleading impression that your work was associated with or approved by the Reviews.
Accordingly, and to avoid any risk of consumer confusion, my client respectfully demands that you agree (i) not to use the title or name “BabyBlue,” or any other title or name including the word “blue,” for your work, and (ii) not to include any other statement, phrase, word, term, name, symbol, device, subtitle, statement, or image in your work, or in the advertising or promotion of that work, that may be likely to cause confusion, mistake, or deception as to the source of “BabyBlue” or as to its affiliation, connection, or association with, or sponsorship or approval by, the Reviews.
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Filed Under: baby blue, bluebook, carl malamud, chris sprigman, copyright, crybabies, culture, harvard law review, public domain
Companies: harvard
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So long as the content used is in the public domain, as seems to be the case, it doesn't matter how 'identical or substantially similar' it is, they can still use it. To argue otherwise is to argue for yet another form of eternal copyright, where so long as you keep using something it never enters the public domain.
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Or use other court rulings
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Re: Or use ANTI- no, not in this country
To: peter.brody@ropesgray.com
Date: Monday, December 28, 2015 11:32 pm
Subject: Christmas and the law
Hello Peter
I think I can speak for 300 years of Friends, and for those here in South Central Los Angeles, on this narrow subject of 'Owners' of the law versus the law's victim's; Fuck yourself.
May you and your children be randomly handcuffed and locked into patrol cars many times a year because Harvard Law Review Association controls who can buy knowledge of public, and case 'law'.
Merry Christmas my ass
doug barnett
Clerk, Los Angeles Monthly Meeting
http://www.rsof.org/quakerlizziejmagie.html
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Re: Re: Or use ANTI- no, not in this country
I found your note to be highly offensive and inappropriate and a disgrace to the long tradition of reasoned discourse that is the hallmark of the Society of Friends. You should be ashamed of yourself.
Carl Malamud
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swearing is not about four letter words
Your critique is usual of those who ignore (those ignore-ant, a verb) the transmission and demand 'a stiff upper lip' of politeness.
1) Webster spent the later half of his life creating his diction-ary too stratify America according to his vision of new country based on white cristian and class-based diction. A sub-set of Quakers have spent generations replacing Webster's spelng and enunciation to thwart the required prerequisite of twelve years of formal education before entering polite society; thus a peculiar and deliberate Quaker lingo and the resistance to the oppressor manifest in Ebonics.
2) The 'Ten Commandments' cautions us to not swear, not to take an oath to anything but our given oath to God. To swear in two directions is to fail both, thus Quakers invoke affirmation in American jurisprudence, fucken A.
3) The second swearing, to fight and die for the king of England, cost 'Friends Of The Truth'(Quakers) twelve thousand jail sentences. And the Nazi's of the time, the Puritans, hung four on the Boston Commons, including the wife of the Governor of Road Island.
4) Malthuse & Bucky Fuller realized that it took more than a hundred Browns to support one Gentleman, and keeping those people in darkness is critical to the construct.
Quakers rejected Titles, Station-based costumes and have addressed all Officers with first names and humor for 365 years. Quaker Grey and simple dress is because indigo dye was killing the slaves.
5) Quakers are highly offensive to many people. Pacifism is a brutal, noisy endeavor and threatens this totalitarian culture; profit is our only prophet & war-mongers will defend their right to kill with your life.
5) Our sick jurisprudence buried Lizzy's and the Atlantic City Quaker's teaching game in the dump, killing the lesson of Monopoly: three players starve and have no place to live.
i, for one (Quakers are very anarchistic in their formal structure) appreciate the work you are doing, and regret that my response could reflect on you.
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That's nothing: the German VG Wort has managed to persuade a judge to rule that each and every single quotation of textbook sources in lecture notes university professors offer their students have to be paid separately starting 2016. As a consequence professors consider not offering ANY quotes (but simply links to the original source) or offering NO scripts at all, so everyone has to attend the lectures.
True story.
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“A data warehouse is a subject-oriented, integrated,
nonvolatile, and time-variant collection of data in support of management’s decisions.” [Inmon (1993)]
will most likely be replaced by
Data Warehouse definition, see [Inmon (1993)]
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That's a mischaracterization
Harvard Law Review is a publisher, not a printer. The Public Domain material is essentially from their own publication, so they are not "competing" at all. The competition is for their printer. And they may very well have contracts that don't allow them to slosh their old content around in competition with the current publication. Which means that they may not even be allowed to compete with BabyBlue regarding the reuse of their own material in anything other than the current Bluebook.
So they might not just lose sales but also get contractual penalties for forgetting to renew copyrights.
You can't blame them for trying to bluff their way out of this ugliness: in the current political climate, crying "pirate" is pretty effective in letting district attorneys come to heel. Whethe
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Re: That's a mischaracterization
You mean the 'dead tree' printer? With online access - even with a paywall - is HLR trying to prop up a business that should have diversified by now?
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Wrong -- it is very tedious because the posting is poorly written and in desperate need of editing.
The core info is OK, but is drowned in excess wording and sloppy essay organization. It should have been better said with two-thirds less text.
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You now owe me $15,000 multiplied by the factor of page viewings. Have a nice day! *insert wink emoji here*
Regards,
Dewey, Phukem and Howe LLP
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Attention Please
PermaLocks is well known for preventing cows from listening to radio broadcasts that include music (they tried enjoining the farm report but the cows production went down when that was aired and no farmers would tune it in) with their Sweet Milk Comes From A Fully Paid Annual License PermaLock and their Yes We Screwed Up Our Copyright Long Ago But You Still Can't Use Our Stuff Happy Birthday PermaLock.
PermaLocks yearly scours the bottom end of the annual laws school best of lists to establish their recruiting schedule where they seek the kind of minds that will create the best locks for the future.
PermaLocks has only one customer, the Public Domain Not Association whom they charge on a subscription basis. With each payment, PermaLocks scrambles the existing locks, renames them, and swaps out arguments between copyright, trademark and patents in order to keep the general public confused about which they might be infringing upon. PermaLocks also has an annual convention paid for by their one and only customer where suggestions for new lock investigations are analyzed. The Public Domain Not Association also hires those law school candidates not hired by PermaLocks to engage in their lobbying efforts for the next round of extensions scheduled before the current extensions run out.
PermaLocks, working creators for a better income for us. Please deposit 10 strips of Gold Pressed Latinum in the Grand Negus statue to your right as your token assessment for having read the above copyrighted, patented, and trademarked material.
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Book Title; Book Author last name, first name; Publication year; Publisher name, publication location
Maybe infringement but if I simply changed it to
Book Author last name, first name; Book Title, Publication year; Publisher name, publication location
It's no longer infringement?
Uhm ... how about this. I call protections on all possible permutations of how a book can be cited and if you cite a book at all you owe me money.
How is a specific way of citing a book 'novel' or worthy of copy protection. It's not like no one would/could ever figure out how to cite a book if it weren't for copy protection law.
The argument that copy protection laws are needed to give someone incentive to create a way of citing a book otherwise no one would ever create ways to cite books and so books would never be cited is ridiculous.
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17 U.S.C. § 102(b)A citation system is just not copyrightable.
See Baker v Selden (1880) (predating the 1976 Copyright Act's § 102(b)). In that case, Selden wrote a book illustrating and explaining a system or method of book-keeping. Baker was alleged to be using Selden's system or method, infringing Selden's copyright. The Supreme Court said:
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Totally confused
WTF, we all know that the Blue book is supposed to have accurate used car prices, what the hell is all that legal mumbo jumbo doing in there???
Totally confused, I think Harvard needs to give their name back to Kelly (he did a much better "Blue Book").
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Re: Totally confused
Quote from ''Can Public Use Create Private Rights? By Peter M. Brody, page 14;
http://www.inta.org/TMR/Documents/Volume%2095/vol95_no6_a1.pdf
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Prior restraint much?
But I get it, they are trying their best to intimidate and coerce as they know their chances of winning in court are at best a coin flip.
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Error in title?
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They still publish the Blue Book?
1. The Internet came around.
2. Most citable materials tell you exactly how to cite to them.
3. Many administrative bodies and courts have their own citation rules anyway. And of course, when you want a judge to go your way, you play by his/her rules.
4. Like language/communication in general, the goal of a citation is to relay the information clearly. Judges want to be able to locate the cite, and really don't care whether the date of the publication is in parentheses or before or after the cite, etc.
Sorry Blue Book, but your days are numbered (hence the attempts to maintain a tight grip on potential competition? ... i.e., dying industries start to threaten and sue to maintain status quo...).
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Re: They still publish the Blue Book?
well I never! /sarc
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Re: Re: They still publish the Blue Book?
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Copyright reform
I also like the idea that a work doesn't get a copyright just by being created.
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Re: Copyright reform
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A vote for BlackBook
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Slam dunk? Explain further, please.
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If some other party, Harvard, or whomever, wants to stop that, then I think it's incumbent upon the party trying to do the stopping to explain their theory. If their theory is that Congress has power under the Commerce Clause to regulate expression, then maybe we should to look and see whether that theory is sustainable.
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See Cohen v California (1971)Forbidding a member of the public from using the common word “blue”, even if only in connection with a specific topic, certainly runs the risk of denuding the English language of its elemental stock.
Someone may not like colorful language, but merely not liking colorful language is no reason to stop it. If the government can halt “blue”, then why not “red” and “white”? Then where will we all fucking be?
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Naming suggestions
Book of Azul
Le Bleu book
caeruleum Carta
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Facts cannot be copyrighted
Similarly records of FCC radio licenses, telephone listings, licence plate records, voter records, etc, are all facts and cannot be copyrighted.
Cited court discussions or decisions are public domain facts which anyone could obtain by going to the court and pulling whatever records are needed to display the relevant facts.
So I don't see how there was ever a copyright given to this book. Perhaps they can get a patent or copyright on the design or presentation or appearance, but not in the fact content which is immutable and irrefutable.
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Simple enough. Think of the book as instructional text, which is probably a good approach since that is one way the students run into it. Most likely they get copies at the college book store.
A person can write a paper explaining, factually, how to do something. For instance, I could explain a system of accounting. You can use that system, no problem. But making copies of my instruction paper, without my license, would present a copyright problem.
I cannot copyright the facts. But I can surely copyright my exposition on them. And the rent collectors at Harvard can surely copyright their exposition on citations, selling copies to thousands of law students each year.
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