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Tuesday, February 09, 2016

Baby Blue and Copyright Overreaching, OR: Don't Make Me Embarrassed to be an HLS Alum, People, Like For Serious.

For those of you who don't know, there's a fight brewing about the Bluebook. Not about the fact that it's awful (though it is), but about overreaching copyright claims the Harvard Law Review appears to be making in connection with it---claims that are, frankly, making me embarrassed to be an HLS alumnus. (Though not ashamed, because I was never on law review. Thank goodness.)

In this post, I want to tell you about an open-source effort to free the Bluebook, and about what you can do to help inflict enough social pressure on the HLR to make it actually possible.

The short version is that HLR has for a while been fighting things like open access to the Bluebook, electronic representations of it, etc., even though, fundamentally, it's just a compilation of rules, and why is this original expression rather than a "procedure, process, system, [or] method of operation" again anyway? But, whatever, copyright law is a mess and is profoundly counterintuitive and basically it's kind of the opposite of what all our students ultimately learn to do on the MPRE. (Long-time student lore: you pass the MPRE by picking the second most ethical option. It often seems to me that you can come to pretty good guesses on copyright law doctrine by guessing the second most unreasonable and profoundly unjust policy.) And I'm not a copyright guy, I would never dare to actually opine on the correct answer to any question of copyright law.

But NYU Prawf and all-around-good-person Chris Sprigman is a copyright guy. And he and an open-knowledge activist named Carl Malamud have come to the conclusion that back in 1958 the Bluebook folks neglected to renew the copyright for one of the editions, which fell into the public domain by operation of law. So they've created an open-source version called BabyBlue. It's ready for release.

The Harvard Law Review is fighting back. They've hired Ropes and Gray, who sent along a C&D in December. Understandably Chris et. al. are a little reluctant to release this thing with one of the most high-powered law firms in the country breathing down their necks.

BabyBlue is a clear public good. In Chris's apt words:

(1) Every person, including every poor person, should be able to cite the law. Imprisoned litigants, pro se litigants, legal clinics, small law firms and solo practitioners — all of them need better access to our system of legal citation if the law is to work for them and for their clients. And that means free access. #BabyBlue will cost $0.00.
(2) #BabyBlue will also be free of copyright restrictions, which means that people are free to work with it, change it, improve it. We are starting with a document that is compatible with the familiar Bluebook system. But I hope not to end up there. The Bluebook is an anachronism. It is over-prescriptive and rigid. It is a barrier to entry to our legal system. And its governance mechanism — control by a few students at the Harvard Law Review — is truly odd. What other standard of this importance to the American public would be entrusted to a group so small, unrepresentative, closed to input, and beyond both supervision and discipline?

Here's the part that, as an HLS alumnus, I find really embarassing. A group of YLS students, including a number of editors of the YLJ, have come out with a letter of thanks for BabyBlue---which is of course a thinly-veiled call for the HLR to back off with the C&D nonsense and actually let the rules of legal citation be free to all. 

The YLS students have called on students at other schools to sign on. And I think as Prawfs we can encourage our students, and particularly the editorial boards of our own law journals, to do so. A free and open Bluebook would be good for everyone, and it's about time we had one.

Posted by Paul Gowder on February 9, 2016 at 03:38 PM | Permalink


If BabyBlue's concern is really about "[i]mprisoned litigants, pro se litigants, legal clinics, small law firms and solo practitioners" having access to citation rules, those rules are already widely available for free online. Here: https://www.law.cornell.edu/citation/ But honestly, I can't imagine judges are really bothered by a pro se litigant's lack of proper Bluebooking. And would pro se litigants have less access to justice if the book were called "The Purple Guide to Legal Citation"? I doubt it.

Also, if folks don't like the Bluebook, there's really no need to follow it. There are some basic conventions of case italicization and reporter notation, but other than that everyone pretty much already does whatever they want. The Supreme Court doesn't follow the Bluebook. Many state courts don't follow the Bluebook. Many law reviews have their own style. That's all fine. Law review editors probably need to buy a copy to follow all the minutiae. Everyone else can do whatever they want. They already do.

Posted by: David Ziff | Feb 10, 2016 1:52:08 PM

Oh, and re: the YLS letter, here's a form for the HLS community (including alums) to voice support for BabyBlue: https://docs.google.com/forms/d/1duZLKc35mre0hgMtVGNW76hH_m7YCjHUnjZL0lB3KOU/viewform

Posted by: Michelle Meyer | Feb 9, 2016 8:48:47 PM

BabyBlue has now been published, so you can peruse it for yourself and see if it is likely to cause customer confusion. I doubt it. Use of the word "blue" in the title seems more than offset by the fact that Baby Blue has a genuine cover, like, with art and everything, whereas the Bluebook has, well, a tell-tale blue cover. Moreover, not only are the examples not the same as the Bluebook's (a copyright issue), BabyBlue frequently refers explicitly to Bluebook, often (amusingly) lamenting the fact that at least this first edition of BabyBlue will follow its oddities. The introduction by Sprigman provides an explanation for this (pretty much the one Paul offers in comments above).

[I, too, fed off of those ill-gotten bagels, but any benefit I may have derived therefrom was more than offset by the misery of being assigned to spend a week bluebooking the new edition of the Bluebook.]

Posted by: Michelle Meyer | Feb 9, 2016 7:35:08 PM

(True! But I think it's defensible work.) The analogy to Feist v. Rural works really well here: suppose I decided to copy someone's reliable telephone book. One thing I might do is announce, quite explicitly, "THIS IS A COPY OF XYZ RELIABLE PHONE BOOK," because, in doing so, I'd have a greater chance to convince users to adopt my own. I might even entitle the phone book "Third Party Copy of that Rural Book That You Like So Much."

Nonetheless, were I to do that, I would violate neither copyright law (because Feist), nor trademark law (because I wouldn't be falsely attributing the source---well, except take the disclaimers from the original post about how I'm not a copyright person and copyright law is reliably perverse so who knows, and apply them with equal force to trademark law).

Second analogy, the makers of generic ibuprofen labeling their boxes with "compare to the active ingredient in Advil(TM)..."

Posted by: Paul Gowder | Feb 9, 2016 7:12:34 PM

(Your parenthetical is doing a lot of work there!)

Posted by: Sam | Feb 9, 2016 7:05:05 PM

I'm not privy to the decision, but my guess would be network externalities. Nobody is going to adopt the open-source version as a standard unless it's recognizably derived from the closed-source version, because people will think that changing is too much work. (That being said, "recognizably derived" is not the same thing as "likelihood of customer confusion" or "copying original creative work.")

Posted by: Paul Gowder | Feb 9, 2016 6:14:48 PM

[and in the interest of disclosure: I ate bagels that were the ill-gotten gains of the damn book, but didn't work on it.]

Posted by: Sam | Feb 9, 2016 5:04:15 PM

I (honestly) don't understand why the would-be competitors don't just (a) come up with a name that doesn't use the word "blue", and (b) write a very simple pamphlet that contains the information they think is important about how courts and law review writers tend to cite cases, codes, constitutions, and whatnot. That would seem to accomplish all the stated goals, and would avoid the unstated goal of picking a fight.

Posted by: Sam | Feb 9, 2016 5:00:36 PM

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