May 29, 2014

A Cite To Behold: 5 Useful Articles – Vol. 1 Issue 10

1. [citation needed]

"Who Owns the Law?" asks the American Bar Association Journal, who has apparently forgotten that the law is owned by an unholy cabal of law reviews. Oh wait, never mind, that's not the law, just the system of citation used by the entire legal profession.

Even as the ABA highlights Carl Malamud's struggle to make codes and statutes public, the Harvard Law Review has hired big guns at Ropes & Gray to issue a cease-and-desist over an access-disabled copy of The Bluebook (unavailable here), coming down on Malamud with the kind of passive-aggressive wrath usually reserved for when somebody has improperly italicized a comma.

This is the latest turn in a five-year endeavor to add support for The Bluebook to Zotero, an open-source citation tool. To make a long story short, The Bluebook, a guide to a legal system of citation that is often required by courts of law, nets the Harvard Law Review and others millions of dollars a year, and free catered lunches for editors don't come cheap.

Systems of citation are ideas and not expressions, and any claims of copyright are highly dubious. Furthermore, the legal tradition has long acknowledged the public policy interest in free and open access to the law—the law is not copyrightable. Yet this public policy motivation has sadly fallen along the wayside even as the internet has finally made universal access to the law a cognizable reality. Legal hackers have attempted their own fixes, such as RECAP, which helps the public bypass PACER fees by uploading docket files to a public archive. And this week, PlainSite has sued PACER over their fees.

"The citizens are the authors of the law, and therefore its owners . . . citizens must have free access to the laws which govern them." Bldg. Officials & Code Adm. v. Code Tech., Inc., 628 F.2d 730, 734 (1st Cir. 1980). And yet what of the citation system that governs the courts that in turn govern the people?

Of course, far be it from us to call the Harv. L. Rev. a repulsive troll squatting on a small but nonetheless key component of equal access to the law, profiting off a slavish attentiveness to convention instilled in lawyers during law school, much to the detriment of the public. Far be it from us indeed.

2. Hard Out Here For A Troll

Speaking of repulsive trolls, it hasn't been an easy week to be in the business of copyright trolling. Perpetually hilarious Prenda Law's spin-off series AF Holdings got the judicial smackdown by the Court of Appeals for the D.C. Circuit, losing first on jurisdiction then on its joinder argument, a drubbing kept in perspective only by the fact that it was roughly these same guys that last year were on the receiving end of a Judge Otis Wright benchslapping that was, um, not of this world.

Meanwhile in Colorado, a magistrate judge has allowed one defendant's copyright misuse argument against pornography megalitigant Malibu Media to go forward. Don't count the pornotrolls out just yet, though: in their line of work, they've had plenty of opportunities to observe how people get into (and out of) uncomfortable positions.

3. Tolerated Infreezement

Andrew Leonard at Salon proves unable to resist the pun that your humble authors, too, would have been unable to resist, arguing that Disney's Frozen has achieved its massive success in part because the company has decided to Let It Go—where the "it" here is strict control over its copyright. Leonard points to the proliferation of YouTube videos featuring lip dubs of the musical numbers, makeup tutorials for Frozen cosplay, and so on and so forth. The argument holds up less well when you're talking about trademark infringement, but we'll allow it.

Setting aside for a minute that YouTube performances of the song are likely matched by Content ID and generating revenue for the studio, the idea of beneficial and tolerated "infringements" is hardly on the margins these days—as we saw last week, no less than Justice Ginsburg has acknowledged as much in a Supreme Court opinion. At least, that's what the opinion said last time we checked.

But maybe we should be giving Disney a little more credit here. After all, remember Frozen is based loosely on the public domain story of The Snow Queen by Hans Christian Anderson. While it's traditionally been Disney's m.o. to pull from the public domain and then literally change the law to avoid giving back to it, maybe that still counts for something?

4. Beastie Boys Not Known To Let The Suit Drop

If you made a wager when Paul's Boutique was released that the artists would one day be the plaintiffs in multiple high-profile copyright suits, you could probably have won enough money to afford to license one of the 105 samples on that record. Picking up where the GoldieBlox case left off, but without the pesky sort-of-sympathetic defendants, Ad-Rock and Mike D appeared in court Tuesday for Beastie Boys v. Monster Energy.

The Beasties are seeking $1 million in damages and another $1 million for implied endorsement after their music was featured in the beverage company's snowboarding video. In oral arguments, both sides seemed to think the size of the fees awarded will depend on whether the jury thinks the Beastie Boys have already sold out. Look, some bands let their fans settle that question in deeply nerdy internet forums, and others make juries do it in the Southern District of New York.

Given how much is riding on the Boys' cred, you'd be a dope if you thought the arguments wouldn't feature plenty of lingo tossed around. Oh sorry, we just read this actual quote from the plaintiff's bench: "You'll learn during the course of this case that 'dope'... is a positive affirmation."

5. Patently Absurd

The post-mortem consensus on the dead patent reform bill is that it was killed by trial attorneys and pharma companies. Trial attorneys? In my legal reform bill? It's more common than you think.

Meanwhile Apple v. Samsung creaks on forward like a hamster wheel of death even though "the trial was a waste of time for all but fanboys and lawyers." Wow, we're sensing a common thread here.

The Federal Circuit is keeping it classy with an ethics probe into now-former-Chief Judge Rader, who recused himself from two cases after helping to decide them. GigaOm urges Congress to disband the Federal Circuit; Vox stops just short of explicit agreement, citing the unwholesome coziness between the Federal Circuit and the patent bar at large. Also, Rader has a rock band that has "played at a bunch of patent conferences," according to Prof. Christopher Sprigman. Huh. Learn something new every day.

De Minimis News Items

Get On My Leval: Transformative Use Of The Week

Cheese Curls of Instagram: While no, technically, there has not (yet) been a successful legislative push for sui generis protection of cheese curl shapes, the well-known Nabisco v. PF Brands suggests there are at least some issues here to be spotted. And if nothing else, this account might be infringing an Amazon patent.

Entirely Ornamental, Non-Utilitarian Article

Originally, the impetus behind universal citation was not simplicity, but freedom from commercial vendors and concern over escalating legal costs. However, what was created is remarkably simple and useful. On their own, different courts began adopting universal citation systems, each with its own characteristics. As these systems were evolving, two mainstream legal organizations each proposed a universal citation system. The American Bar Association [ABA] first proposed that its members embrace universal citation. Then, the American Association of Law Librarians proposed its own system, which has evolved into the Uniform Citation Guide.

Network Effects and Legal Citation: How Antitrust Theory Predicts Who Will Build a Better Bluebook Mousetrap in the Age of Electronic Mice by Christine Hurt


Five Useful Articles is selected and arranged by Parker Higgins and Sarah Jeong (Harvard Law School '14, and not an editor of the Harvard Law Review). It does not reflect the views of their employers, friends, family, cats, alma mater law schools, law journals they may have edited, deans they may have received diplomas from, or even necessarily their (possibly capped-and-gowned) selves. And good lord, this is not legal advice.

This newsletter has been Garcia-free for two issues.