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.
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):
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.