Jun 052014

The Bluebook. For non-lawyers unfamiliar with it, it’s a guide to a standard system of citation formats that legal practitioners often use in their court filings and academic legal writings.

Unfortunately, the Harvard Law Review claims copyright over it and has been using that claim to threaten others who might want to build tools implementing this citation system. Theoretically, the Harvard Law Review may legitimately have a copyright interest in aspects of the Bluebook book, such as the text explaining how to use the citation formats correctly.  But as for the citation system, this should not be copyrightable. See 17 U.S.C. Section 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

However, in light of the recent ruling by the Court of Appeals for the Federal Circuit finding copyright in software APIs — something that should have been similarly precluded by Section 102(b) — I mused in a tweet:

It would be an absurd result contrary to the language of the statute and represent a fundamental change in the goals and legitimacy of copyright law, but under the Federal Circuit’s reasoning it would be a logical outcome.

It would also be the height of hypocrisy. 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. Which is why years ago I publicly declared it to be a stupid citation method and recommended that everyone instead cite blogs via a completely different approach.  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.

This comment referenced this 2006 post on my now-defunct law school blog (Cathy Gellis, The Bluebook on Blogs, THE GREAT CHANGE: TURNING CATHY INTO A LAWYER (Apr. 30, 2006), available at https://web.archive.org/web/20070330030551/http://www.cathygellis.com/mt/archives/000765.html), and was then referenced at this post by Howard Bashman (Howard Bashman, The method for citing to blog posts found in the 18th edition of The Bluebook “would completely ream someone like Howard Bashman,” HOW APPEALING (Mar. 15, 2007, 3:20 PM), http://howappealing.law.com/031507.html#023356), which I then cited to at this post (Cathy Gellis, Rumors of Howard Bashman’s reaming have been greatly exaggerated, THE GREAT CHANGE: TURNING CATHY INTO A LAWYER (Mar. 15, 2007), available at https://web.archive.org/web/20070322060558/http://www.cathygellis.com/mt/archives/001037.html), and he responded to here (Howard Bashman, “Rumors of Howard Bashman’s reaming have been greatly exaggerated,” HOW APPEALING (Mar. 18, 2007, 5:54 PM), http://howappealing.law.com/031807.html#023445).

With just a few tiny punctuation differences, the procedure I recommended for citing blogs is just what the 19th Edition now requires.  But note that I recommended citing blogs this way back in 2006, whereas the 19th Edition of the Bluebook wasn’t copyrighted until 2010, so that’s a hell of a lot of prior art showing how my innovation for how to cite blogs pre-dates any claimed by the Harvard Law Review. In fact, it looks like, if the Harvard Law Review is correct that citation formats are protectable intellectual property, that they are actually infringing on my IP.

But, hey, I’m easy. Tell you what, Harvard Law Review: if you don’t want any trouble with me, stop making trouble for the Carl Malamuds and Frank Bennetts of the world who are just trying to make it a little easier to promote the progress of arts and sciences for everyone.

Otherwise, just to be clear…

Dear Carl Malamud, Frank Bennett, and anyone else who would like to use my blog citation format EXCEPT THE HARVARD LAW REVIEW: you have my permission to do so.

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