[A2k] Masnick: Harvard Law Review Claims Copyright Over Legal Citations; Now Challenged By Public Domain Effort

Susan Chalmers susan at chalmers.associates
Fri Oct 10 16:33:52 PDT 2014


I liken the Bluebook to a protocol, the availability of which facilitates interoperability. 

It’s also a matter of access to justice. 

Not a good look for Harvard.

—
Susan Chalmers
Principal

CHALMERS & ASSOCIATES
chalmers.associates/

“Let us endeavor so to live, that when we come to die even the undertaker will be sorry”

-Mark Twain

On Oct 11, 2014, at 6:25 AM, Manon Ress <manon.ress at keionline.org> wrote:

> Harvard Law Review Claims Copyright Over Legal Citations; Now Challenged By
> Public Domain Effort
> 
> Copyright
> by Mike Masnick
> Wed, Oct 8th 2014
> 
> 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.
> 
> -- 
> Manon Ress, Ph.D.
> Knowledge Ecology International, KEI
> manon.ress at keionline.org, tel.: +1 202 332 2670
> www.keionline.org
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