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 have to 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?
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