Harvard Law Review Claims Copyright Over Legal Citations; Now Challenged By Public Domain Effort

from the this-ought-to-be-interesting dept

Wed, Oct 8th 2014 8:08am — Mike Masnick

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.

Harvard Response 20141006 (PDF)Harvard Response 20141006 (Text)

Harvard Letter (PDF)Harvard Letter (Text)

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Filed Under: bluebook, carl malamud, cathy gellis, chris sprigman, copyright, harvard law review, legal citations, public domain, the bluebook
Companies: harvard, harvard law review association

10 Comments

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Anonymous Coward, 8 Oct 2014 @ 8:38am

I'm guessing Harvard Law Review is firmly in the "if we apologize, we're liable" school of thought.
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antidirt (profile), 8 Oct 2014 @ 8:48am

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.

Well, that's certainly debatable. See, for example:
We are not prepared to hold that a state's reference to a copyrighted work as a legal standard for valuation results in loss of the copyright. While there are indeed policy considerations that support CCC's argument, they are opposed by countervailing considerations. For example, a rule that the adoption of such a reference by a state legislature or administrative body deprived the copyright owner of its property would raise very substantial problems under the Takings Clause of the Constitution. We note also that for generations, state education systems have assigned books under copyright to comply with a mandatory school curriculum. It scarcely extends CCC's argument to require that all such assigned books lose their copyright—as one cannot comply with the legal requirements without using the copyrighted works. Yet we think it unlikely courts would reach this conclusion. Although there is scant authority on CCC's argument, Nimmer's treatise opposes such a suggestion as antithetical to the interests sought to be advanced by the Copyright Act. See Nimmer § 5.06 [C] at 5–60.
CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 74 (2d Cir. 1994).

Or see Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516 (9th Cir. 1997). There's certainly case law that cuts the other way, but a balanced approach would recognize the fact that there are differing views.

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.

That's great! I needed to cite a blog post just yesterday, and I turned to the 18th edition of the Bluebook and found that the suggested cite was stupid. This helps a lot. Thanks!
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John William Nelson (profile), 8 Oct 2014 @ 9:43am

The should not have asked for permission
Even if a citation is copyrightable, which it probably is not (as it is predominantly fact, a method rather than an expression, and de minimis), use of the citation method for Zotero citation would be clear fair use and not a violation of copyright.

A good case on this was when Thomson West tried to claim copyright over the page numbers in cases. The court struck that down as copyrightable, and I think the logic would extend here as well.

I always astounds me the lack of common sense which comes into play in copyright matters.
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Anonymous Coward, 8 Oct 2014 @ 10:43am

Re: The should not have asked for permission
I have not seen anything in which the rights holder is claiming any copyright to citations per se. Unrelated third parties appear to be the ones making such assertions.
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Get off my cyber-lawn! (profile), 8 Oct 2014 @ 1:03pm

To quote some old guy
Hoist with your own petard!

That's gonna leave a mark!
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Anonymous Coward, 8 Oct 2014 @ 5:49pm

I think this is a really interesting issue from a legal perspective, because there are so many unsettled sub-issues, including many addressed in the article.

However, we shouldn't take all the anti-copyright claims (i.e., the claims that the Bluebook is not protected) at face value.

For example, as a previous commenter noted, it is at best questionable whether adoption "as an edict of government" makes a privately produced document "public domain" material.

Moreover, Ms. Gellis's claim that "For the Harvard Law Review to be able to claim infringement it would need to show that the claimed IP is unique to it" is not legally supportable. Uniqueness is not a prerequisite to copyright protection.
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Philo (profile), 9 Oct 2014 @ 3:13pm

Yet another failure of business sense
There is an ongoing theme in copyright law where companies that hold copyright on a work will use it to bully anyone and everyone that even darkens their door. It seems the concept of "licensing" has all but evaporated unless you have a very large checkbook, and/or copyright attorneys simply enjoy beating people down.

In this case, how hard would it have been for Harvard to simply grant a license to Zotero to use the format? Sure they may have lost a chunk of revenue, but they would have cemented their publication in place as THE authority over citations. Instead they put hubris over common sense, and now stand to lose everything.
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Anonymous Coward, 9 Oct 2014 @ 4:17pm

Re: Yet another failure of business sense
They were already cemented as THE authority over legal citations. A license to Zotero would not make a difference on that.
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DerivedVariable, 10 Oct 2014 @ 8:27am

Btw, how does this contrast with the Dewey Decimal System which is another knowledge mark-up and classification system which is kept proprietary?

How is the DDC kept proprietary anyway?
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Frank Bennett (profile), 9 Jun 2015 @ 5:22pm

Re: The should not have asked for permission
To be clear, I did not ask for permission to implement the Bluebook rules, and never have done. I asked for clarification of the terms of the EULA attached to the Bluebook Online service. The trail of correspondence is summarized in a recent post (linked under my name above).

Basically, when an institution holds itself out as serving a community interest (in this case, providing a common format for printed citations in legal writing etc etc), it is inappropriate for it to play semantic dog-in-the-manger games with others who are trying to contribute in the same vein. That is not a legal claim, and it may be an old-fashioned view, but it is where I come down on this one.
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