Mood Indigo

|The Volokh Conspiracy |

"Baby Blue"- the legal citation system, recently published as an open-access, public domain, slimmed-down alternative to the Harvard Law Review's "Bluebook," about which I blogged a few months ago—will henceforth be known as the "Indigo Book," in response, apparently, to complaints from the Law Review about the use of the word "blue" in the new book's name.

In a letter to the Harvard Law Review Association, Carl Malamud, the publisher of Baby Blue, wrote:

[A]s we have repeatedly told you and your paid outside counsel, [we] 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.

As I stated in my Harvard Law Record essay, it is time for you to put away these unseemly threats of litigation. We have gone to great lengths to accommodate a large number of your requests, including the groundless demands centered around the word "Blue." I hope we can all now begin to focus on more important work.

Now, the HLRA's rather ham-handed attempts to protect its intellectual property (and its valuable near-monopoly in the legal citation market) during the course of this dispute have been unseemly at best and irresponsible at worst. Its claim to own the copyright in contents of the Bluebook is, as I wrote before, "copyright nonsense," and HLRA should be ashamed of itself for putting it forward; and even if it had a remotely plausible claim, "free and open access to the language of the law is pretty fundamental to a functioning democratic legal system, and its assertion of the claim is an affront to the legal system HLRA is supposed to serve."

Plus, the Bluebook is a 538-page monster, prodigiously over-complicated and arcane, and an embarrassment to the legal profession.

But … on the question of the name of the new venture, I have to say that I think it's the HLRA that has the better of the argument. Even if you believe (as I do) that the contents of the Bluebook and the citation system contained therein are entirely in the public domain, and that anyone can do whatever he likes with them—reprint, republish, revise, etc.—HLRA has been distributing those contents as the Bluebook for a long time, and they have valuable trademark rights in the name (much as "Dover Publications" is a valuable trademark even though the material distributed under that name is all in the public domain). It does look plausible to me that the name of the new venture (Baby Blue) was chosen precisely to evoke the reputational value that HLRA has built up over the years in the Bluebook mark, and I think HLRA has a valid complaint about that.