Public Domain Citation Book, Baby Blue, Renamed To Indigo Book, Following Harvard Law Review Threats

from the too-bad dept

We've been covering the ridiculous saga of the Harvard Law Review Association and its pricey legal threats to Carl Malamud for daring to publish a public domain set of legal citations. As a bit of background, legal citations tend to follow a standard found in the Bluebook, which is put out by the Harvard Law Review Association (which, confusingly, is actually made up of four top law schools). Many have criticized the Bluebook heavily, including appeals court judge Richard Posner who has ripped into the Bluebook, and suggested a much simpler form of legal citations, leading (in part) to something called the Maroonbook, from the University of Chicago Law Review. And, yet, the Bluebook has still mostly remained atop the heap, generating a ton of money for the law schools that back it. A few years ago, the Bluebook ran into some intellectual property issues, when Professor Frank Bennett sought to build support for the Bluebook into his open source citation tool, Zotero, and the Harvard Law Review Association obnoxiously said no, claiming copyright over citations (which seems... questionable).

After all of this, law professor Chris Sprigman and public records warrior Carl Malamud realized that an earlier version of the Bluebook had fallen into the public domain. They then announced they would use that public domain version as a base, and then build their own competing citation manual, called Baby Blue. On Christmas Eve, Harvard Law Review was so freaked out by some tweets by Malamud implying that Baby Blue was ready to release, that it had a high priced lawyer dash off a threat letter warning him not to release the book.

He did so anyway, and tons of law students (including those at Harvard Law), signed onto letters in support of Baby Blue. But, in the end, legal fights are draining -- mentally, physically... and monetarily. And thus, Malamud and Sprigman have somewhat thrown in the towel, noting that since the Harvard Law Review Association seems so worked up about the use of the word "blue," they will rename their book as the Indigo Book. You can see it here.

You and I have discussed this several times. Professor Sprigman and I believe strongly that there is absolutely zero chance of confusion, dilution, or any other harm that trademark aims to prevent in our use of the title Baby Blue. Nobody would mistake the work we’ve created with The Bluebook. This is not a trademark issue.

Nevertheless, Professor Sprigman and I, as we have repeatedly told you and your paid outside counsel, have absolutely no interest in litigation on this issue. We will defend ourselves in court if necessary, but we feel this would be a waste of your time and would quickly become a stain on the reputation of the Harvard Law Review. That you would not drop the threat of litigation in our prior conversations has baffled me, and the current renewed threats are very disturbing.

Even though your legal threats are baseless and, frankly, amount to little more than an attempt to bully into submission lawful competition, Professor Sprigman and I have decided to change the name, taking into account your preferences. In particular, you demanded that the word “Blue” not be present in the title or the subtitle. The Indigo Book is now on our web site. I trust this will put an end to this.

It's always at least a little bit disappointing when people feel compelled to change their plans due to what appear to be baseless legal threats, and it's unclear what the Harvard Law Review Association will think of the Indigo Book, but one hopes that the folks at the HLRA have at least started to realize how ridiculous they look in all of this.

Filed Under: baby blue, bluebook, carl malamud, chris sprigman, legal citations
Companies: harvard, harvard law review association

Law Students Line Up Behind 'Baby Blue' -- Will Harvard Law Review Sue?

from the law-student-on-law-student-legal-action dept

Back in 2014, we wrote about a crazy story, where the Harvard Law Review was claiming copyright over legal citation standards. It's true that the Harvard Law Review Association has published the famous "Bluebook" of legal citation standards for many years, but the idea that such citations are copyrightable is crazy. In response to this, law professor Chris Sprigman and open records guru Carl Malamud alerted the world of their intention to publish "Baby Blue" -- a competing legal citations publication. They noted that the 10th edition of the Bluebook, which as published in 1958, had clearly fallen into the public domain, and they were going to use that as the starting point for their competing product. Late in December, we pointed out that Harvard Law Review freaked out after its expensive Ropes & Gray lawyers saw a few tweets from Malamud suggesting Baby Blue was almost ready for publication. On Christmas Eve, a pricey lawyer sent off a nastygram, threatening a copyright infringement lawsuit if Baby Blue were published.

It took another month and a half or so, but Baby Blue is now available -- and it appears that law students are lining up behind it, rather than the Bluebook. A bunch of folks at Yale Law School and NYU Law School have come out in support of Baby Blue. It appears other law schools are jumping on board as well -- including Harvard Law School, Stanford and more.

Meanwhile, law professor David Post has provided a bit of free legal advice for the Harvard Law Review:

Here’s a bit of free legal advice: If you want to assert copyright protection over something, don’t call it “A Uniform System of Citation” —  because systems are, by definition, unprotected by copyright. Section 102(b) of the Copyright Act couldn’t be clearer:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, [or] method of operation, … regardless of the form in which it is described, explained, illustrated, or embodied in such work.

And now... everyone gets to wait and see what the Harvard Law Review Association decides to do.

Filed Under: baby blue, bluebook, carl malamud, chris sprigman, citations, copyright, legal citations, public domain
Companies: harvard, harvard law review, harvard law review association, nyu, stanford, yale

Harvard Law Review Claims Copyright Over Legal Citations; Now Challenged By Public Domain Effort

from the this-ought-to-be-interesting dept

If you're not a copyright geek, you might not be aware of the copyright saga revolving around the Harvard "Bluebook." The Bluebook is basically the standard for legal citations in the US. It's technically owned by an organization that is effectively made up of four top law schools. For a variety of reasons, the idea that citations can be covered by copyright is troubling to a lot of folks, but the Harvard Law Review, in particular, has stood by the copyright in The Bluebook (for which it makes a pretty penny each year). Last year, there was a fight over this, best summed up succinctly by Carl Malamud in this short BoingBoing post:

For five years, Professor Frank Bennett, a distinguished legal scholar at Nagoya University School of Law, has been trying to add Bluebook Support to Zotero, the open source citation tool used all over the world.

Professor Bennett asked Harvard Law Review for permission. They said no. He asked again. They said no again. He secured Larry Lessig as his lawyer. They said no to Lessig. I pitched in and got a bunch of angry letters from the most expensive law firm in Boston. Even a flaming headline in Boing Boing wasn't enough to get the Harvard Law Review off their $2 million/year revenue stream to permit a little bit of innovation.

Frank Bennett finally said the hell with it after asking nicely for 5 years, and has now released Bluebook Zotero. It's shameful that Bluebook, Inc. couldn't deal with this situation in a better way.

If you want to dig in, with even more details, you can look here, here or here, with that last one being the original letter that Malamud sent to Harvard, which we've also embedded below.

The story has now taken an interesting twist, as Malamud, with the help of NYU law professor Chris Sprigman, has now sent a new letter to Harvard, pointing out that the 10th edition of The Bluebook is actually in the public domain, seeing as someone forgot to renew the copyright. Now, the 10th edition is obviously way off from the current 19th edition... but since much of the 19th edition survives from the 10th edition, that would suggest that much of The Bluebook is also public domain.

First, our research has established that the copyright on the 10th edition of The Bluebook, published in 1958, was never renewed. As a consequence, the 10th edition is in the public domain. Public Resource will thus publish an electronic version of the 10th Edition.

Second, in view of the 10th edition’s public domain status, we have begun an inquiry into the copyright status of the current 19th edition. As Carl has noted in his previous correspondence with you, numerous courts have mandated use of The Bluebook. As a consequence, The Bluebook has been adopted as an edict of government and its contents are in the public domain. But even if we lay that point aside (which, of course, we would not), very little of the 19th edition can be construed as material protected by copyright. Many portions of the 19th edition are identical to or only trivially dissimilar from public domain material contained in the 10th edition. Other portions of the 19th edition are comprised either of material entirely outside the scope of copyright, or material which merges with the system of citation that The Bluebook represents. These portions of the 19th edition are likewise available for public use.

As such, Malamud's Public Resource is going to create an alternative to The Bluebook, called Baby Blue, which will make use of the public domain portions of the book.

In short, The Bluebook will soon face a public domain competitor. And when Baby Blue comes to market, The Harvard Law Review Association is likely to face questions regarding why the public – including pro se and indigent litigants – are obliged to pay for access to a resource that is indispensable to all those who seek justice from our courts. The Harvard Law Review Association is likely also to face questions regarding the financial transparency of the current structure.

That's the legal equivalent of a mic drop right there.

Meanwhile, as an aside, a few months ago, lawyer Cathy Gellis also pointed out that if legal citation formats are copyrightable, then it would appear that the 19th edition of The Bluebook infringes on her copyright, since she suggested a citation style for websites years earlier, which the latest edition of The Bluebook appears to have adopted.

For the Harvard Law Review to be able to claim infringement it would need to show that the claimed IP is unique to it. And it can’t, at least not for all citation forms. Take the system for citing blogs, for instance. The most recent edition of the Bluebook says that this would be the correct format to cite this blog post:

Cathy Gellis, The Bluebook Stole My IP, STATEMENTS OF INTEREST (June 4, 2014), http://www.cathygellis.com/soi/2014/06/the-bluebook-stole-my-ip.html.

See Rule 18.2 in the 19th Edition. However, the 18th Edition prescribed something completely different (see Rule 18.2.4):

Statements of Interest, http://www.cathygellis.com/soi/ (June 4, 2014).

Which is, of course, a completely useless citation format. It doesn’t indicate author, it doesn’t indicate post title, it doesn’t indicate URL (which one needs to be able to search the Internet Archive for when online materials disappear). It’s complete garbage.

But... going all the way back to 2007, Gellis had suggested citations that look a lot more like what's now in The Bluebook:

See the first comment appended to this 2007 post (Christine Hurt, Bluebook Pet Peeves, THE CONGLOMERATE (March 13, 2007), http://www.theconglomerate.org/2007/03/bluebook_pet_pe.html#c63110048):

1. Posted by Cathy on March 13, 2007 @ 9:22 | Permalink

It’s weird how the Bluebook form plays up datestamps and plays down author’s names. I’ve suggested that instead blogs should be cited just like articles are cited. So, for instance, instead of this:

Susan Crawford Blog, http://scrawford.blogware.com/blog/ (Apr. 27 2006 22:05 EDT).

which would completely ream someone like Howard Bashman, whose name is not part of his blog title or URL and therefore would never show up in the cite, it should be

Susan Crawford, Onward, SUSAN CRAWFORD BLOG, Apr. 27, 2006, http://scrawford.blogware.com/blog/_archives/2006/4/27/1917067.html.

I can think of few instances where that form wouldn’t work. Well, ok, I can think of one: linking to a subjectline-less post on a teenager’s MySpace page. For that, the original Bluebook form would probably be better. It’s just kind of sad, though, that the Bluebook is keying its recommendation to that particular form of electronic media and failing to recognize the tremendous scholarship that lies out there on proper blogs and allowing us to effectively capture a reference to it.

Gellis jokingly points out that if those citations are covered by copyright, then perhaps The Bluebook infringed her copyright, but she's granting a license for anyone to use it... except for the Harvard Law Review... unless, they let Carl Malamud and Frank Bennett do what they want to do. Seems like a good tradeoff.

Either way, it will be fascinating to see how Harvard Law Review responds. Here's a tip, though, if it's anything other than "sorry, we overreacted," it's probably the wrong response.

Filed Under: bluebook, carl malamud, cathy gellis, chris sprigman, copyright, harvard law review, legal citations, public domain, the bluebook
Companies: harvard, harvard law review association