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

Mon, Dec 28th 2015 6:24am — Mike Masnick

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, 2015

He even discussed what public domain (of course) image he might use for the cover. I like the following option the best:

Judges 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, 2015

Apparently, this sent the Harvard Law Review into a bit of a tizzy, and they made their lawyers at the big, respectable law firm of Ropes & Gray come into the office on Christmas Eve to dash off this ridiculous threat letter to Malamud and Sprigman, demanding that they not move forward with releasing Baby Blue.

First, 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.

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.

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.

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.

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.

Touchy, touchy. Harvard Law Review seems really, really worried that they might face some public domain competition, huh?

Harvard-Response-20151224 (PDF)Harvard-Response-20151224 (Text)

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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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That One Guy (profile), 28 Dec 2015 @ 4:37am

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.

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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TheResidentSkeptic (profile), 28 Dec 2015 @ 6:34am

Or use other court rulings
As courts have ruled that parody sites are clearly fair use, just rename it to ANTI-Bluebook and go for it. It is clearly a parody of their high-priced version.
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Ninja (profile), 28 Dec 2015 @ 7:02am

Re:
I kept thinking about it. Technically this Bluebook contains stuff that are in the Public Domain, right? So even if the book is copyrighted a good portion of it cannot be copyrighted (I assume there must be some comments and additions from Harvard and all). So, yes, what's the fuss??
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techflaws (profile), 28 Dec 2015 @ 7:12am

Touchy, touchy.

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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David, 28 Dec 2015 @ 7:14am

That's a mischaracterization
Harvard Law Review seems really, really worried that they might face some public domain competition, huh?

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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renley, 28 Dec 2015 @ 7:16am

>>>> "(stay with me, this isn't as boring as it sounds!)"

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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Anonymous Coward, 28 Dec 2015 @ 7:52am

Re: That's a mischaracterization
...The competition is for their printer...

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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Anonymous Coward, 28 Dec 2015 @ 7:52am

Mike Masnick just hates it when copyright law is enforced.
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Anonymous Anonymous Coward, 28 Dec 2015 @ 7:52am

Attention Please
A notice from the Public Domain Not Association (which is an association made up from the various copyright maximalists organizations like the MPAA and the RIAA and the Authors Guild and their enforcement related entities including collection societies, the US Federal Government, and the state of Missouri) states that they have long since engaged PermaLocks International who's sole business is creating creative locks to keep that public domain door sealed, and welcoming new member The Harvard Law Review and School of PermaLock Design. PermaLocks International is currently engaged in a world wide expansion bid using funds that other organizations might use for lawyers by strategically investing directly in the kind of arbitrators that will sit on ISDS tribunals.

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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Toestubber (profile), 28 Dec 2015 @ 8:01am

Re:
As an editor of some experience, I truly have no idea what your criticism is. Could you be more specific? What do you imagine is the "excess wording" in this post?
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Anonymous Coward, 28 Dec 2015 @ 8:08am

So let me get this straight. Citing a book a particular way (an arbitrary example below)

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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Anonymous Coward, 28 Dec 2015 @ 8:26am

Totally confused
I read the Harvard book and I was totally confused, I couldn't find an accurate cost for my 1974 Chevy Nova anywhere in that mumbo jumbo they promote as "The Blue Book"...

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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Dave Cortright (profile), 28 Dec 2015 @ 8:27am

Prior restraint much?
Even if the material in question were infringing, no one—not even Hahvahd—has the right to prevent its publication. They only have right to bring suit *after* it is published.

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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Michael Chermside (profile), 28 Dec 2015 @ 8:28am

Error in title?
Should the word "level" in the headline have been "letter" instead? If not, what does it mean?
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Anonymous Coward, 28 Dec 2015 @ 9:12am

Re:
I just hate it when this copyrighted canard is trotted out.

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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GMacGuffin (profile), 28 Dec 2015 @ 9:34am

They still publish the Blue Book?
The last time I saw the Blue Book was in law school, mid-90s. I have never used it since. Because...

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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That One Guy (profile), 28 Dec 2015 @ 9:50am

Re:
Given how other forms of 'collections' are managed in that country I can't help but doubt it would be a viable alternative, but it seems like a ruling like that would provide excellent incentive to look elsewhere for teaching materials. I'm sure with a little looking they could find another company offering similar textbooks, more than happy to 'only' get paid once for the initial purchase.
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Anonymous Coward, 28 Dec 2015 @ 10:06am

Copyright reform
Copyright is for a limited time. Set a fixed term (hopefully 28 years) and be done with it. Any renewals should be non-automatically renewing.

I also like the idea that a work doesn't get a copyright just by being created.
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Misinforminimalism, 28 Dec 2015 @ 10:41am

A vote for BlackBook
As a litigator who thinks he understands what a redline is, and how to blue pencil something, but who is constantly confronted by his corporate lawyer wife's apparently different references to something called blacklining, I would vote they jettison all references to blue and instead go with basic Black. Let's make things genuinely uniform and understandable.
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Anonymous Coward, 28 Dec 2015 @ 11:46am

Re:
So let me get this straight. Citing a book a particular way … Maybe infringement but
No. “Citing a book a particular way”, standing alone, is not copyright infringment under any reasonable understanding of U.S. copyright law.

17 U.S.C. § 102(b)
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
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:
The use of the art is a totally different thing from a publication of the book explaining it.
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Anonymous Coward, 28 Dec 2015 @ 12:11pm

No case for copyright infringement here, but a slam dunk trademark issue.
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Anonymous Coward, 28 Dec 2015 @ 1:10pm

Re:
… a slam dunk trademark issue.
15 U.S.C. § 1125(c)(3) Exclusions
The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:
. . .
(C) Any noncommercial use of a mark.

Slam dunk? Explain further, please.
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Anonymous Coward, 28 Dec 2015 @ 1:58pm

Re: Re:
Noncommercial use of a mark? Explain further, please.
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Anonymous Coward, 28 Dec 2015 @ 2:11pm

Re: Re: Re:
Noncommercial use of a mark? Explain further, please.
Amendment I
Congress shall make no law … abridging the freedom of speech, or of the press
So someone here in America wants to publish a work with the word “blue” in its title.

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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Anonymous Coward, 28 Dec 2015 @ 2:29pm

Re: Re: Re: Re:
Yeah, this isn't a 1st amendment issue. It's also not a noncommercial use issue either, as while Baby Blue might be given away for free, Harvard's Blue isn't.
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Anonymous Coward, 28 Dec 2015 @ 3:04pm

Re: Re: Re: Re: Re:
Yeah, this isn't a 1st amendment issue.
On the contrary, the arbitrary and high-handed removal of words from public discourse has been recognized as a serious threat to freedom of expression.

See Cohen v California (1971)
[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.
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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Anonymous Coward, 28 Dec 2015 @ 3:36pm

Naming suggestions
Instead of baby blue call it one of these:
Book of Azul
Le Bleu book
caeruleum Carta
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Anonymous Coward, 28 Dec 2015 @ 3:46pm

Re: Re: Re: Re: Re: Re:
This reads like something Karl would post.
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AC720 (profile), 28 Dec 2015 @ 6:41pm

Facts cannot be copyrighted
Facts like names and addresses and locations comprising a location database cannot be copyrighted because they are facts and not a creative work eligible for copyright.

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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G Thompson (profile), 28 Dec 2015 @ 9:10pm

Re: They still publish the Blue Book?
Are you saying that all these law gruduates/students that are made to purchase style books that will never be normally used in the real world (our courts and tribunals are exactly the same as yours it seems) are being misled?

well I never! /sarc
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techflaws (profile), 28 Dec 2015 @ 10:11pm

Re: Re:
It's not only textbooks. Whenever a professor is using material in his lecture notes that is not his, he has to pay VG Wort for using it; each page has to be reported and paid for. So, using this

“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 One Guy (profile), 28 Dec 2015 @ 10:33pm

Re: Re: Re:
Truly amazing seeing the myriad ways in which copyright is helping creativity, and in this case education, for the betterment of society.
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LAquaker, 28 Dec 2015 @ 11:56pm

Re: Or use ANTI- no, not in this country
Please read the treatise at the URL at the bottom of my e-mail; it ends very badly.
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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LAquaker (profile), 29 Dec 2015 @ 12:40am

Re: Totally confused
'' Such a limitation can be rationalized as an application of equitable estoppel: the brand owner should not be entitled to claim rights in a name that it sought to eliminate from the marketplace.''

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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a, 29 Dec 2015 @ 8:11am

Re: Re: They still publish the Blue Book?
Made to purchase? No, no, no, no, no! Not 'made' to purchase. But that diploma looks really really nice when framed and hanging in that office you so desire. How many copies would you like?
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CarlMalamud (profile), 29 Dec 2015 @ 8:32am

Re: Re: Or use ANTI- no, not in this country
Dear Mr. Barnett -

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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LAquaker, 29 Dec 2015 @ 3:15pm

swearing is not about four letter words
Ha

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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FlameCCT, 9 Feb 2016 @ 10:57am

Re: Copyright reform
IIRC, one revision of the Bluebook fell into public domain status for lack of renewal. Which version was helpful in the creation of BabyBlue.
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Tanner Andrews (profile), 5 Jan 2021 @ 12:02am

I don't see how there was ever a copyright given to this book

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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