Harvard Bluebook: more threats to those who would cite the law


1 Like

I should probably that “A Cite to Behold” had an absolutely wonderful take on this story. Great find!

I have no skin in this game, but I’ve been following the discussion and asking questions on earlier BB threads, and honestly I don’t get the complaint: (1) It is not rich-as-Croesus Harvard who owns this book, but the poor-as-churchmice student-run Law Review, which uses the proceeds to subsidize its other activities; (2) The contents are not law, just a citation style guide, one that is not universally used; (3) Anyone could write a “guide to the Harvard style guide” guide describing this citation style in their own words; (4) rather than being closely-held (like some of the government codes Malamud has rightly tried to make easily accessible), the Harvard guide is widely available for a relative pittance given the probable audience: under $40 new, as low as $5 on Amazon for used recent editions.

This seems like a strange thing to go after, and not a good use of Malamud’s and the EFF’s time.

I would agree that these legal “threats” from Ropes don’t seem terribly relevant to what Malamud claims to be trying to do (they are only asking for removal of the actual text of the Bluebook, and not the ideas/abbreviations/styles expressed in it), but I’m also having difficulty feeling sympathy for hugely prestigious flagship law reviews at a handful of Ivy-League law schools. Poor as church mice they are not: Parker Higgins and Sarah Jeong weren’t kidding when they talked about catered lunches for Law Review editors, and while these institutions are operated by students the Law Reviews themselves (if not the Bluebook arms of these Law Reviews) are given generous support by the law school. That flagship law reviews are run by high-achieving students selected through a competitive process and their members are virtually guaranteed to land in the law firm/clerkship of their choice (there’s a reason why Law Review board positions are listed on the resumes/bios of people like Obama and Clinton) does little to stoke my sympathies, either.

1 Like

First, let me be clear that EFF is not involved in this little squabble.

Bluebook really should be a non-issue. It’s the edge of the cloud of things that really matter, at least for me. I usually worry about edicts of government that are being aggressively hidden by the state behind copyright prohibitions, terms of service, bad formatting, or pay walls.

What’s going on with the Bluebook is attitude. Professor Bennett tried to make a perfectly acceptable use of some underlying data and he was courteous enough to let them know. They said he couldn’t. He pressed the issue, they kept saying no. I raised the issue, and they hired a white shoe law firm. What’s in dispute here is not the Bluebook as a book, it is the use by developers of underlying facts and abbreviations, such as whether in a court brief one refers to the Harvard Law Review as Harv. L. Rev. or one refers to a court case by the form John Doe Agency v. John Doe Corp., 493 U.S. 146, 159-60 (1934) (Stevens, J., dissenting).

EFF was mentioned Cory’s post, which is why I brought them up.

[quote=“carlmalamud, post:5, topic:33160, full:true”]
What’s in dispute here is not the Bluebook as a book, it is the use by developers of underlying facts and abbreviations, such as whether in a court brief one refers to the Harvard Law Review as Harv. L. Rev. or one refers to a court case by the form John Doe Agency v. John Doe Corp., 493 U.S. 146, 159-60 (1934) (Stevens, J., dissenting).[/quote]

You seem to be saying that the Bluebook asserts rights over the citation style itself, not the description of the style as embodied in their book. Frank Bennett explicitly says this was not an issue (in this comment on his blog). I suppose that if he implemented a Bluebook-compliant citation module in Zotero or BibTeX then Bluebook might try to prove that he lifted code from the Bluebook Online, but as long as he really didn’t I don’t think that would be a major problem.

Likewise the letter from Ropes seems to be saying that you can’t post parts of their book, not that you can’t write your own book describing the citation style.

Honestly, this seems a very different kind of fish you’re going after than things like public codes which are your usual target.

@bwv812, I’m not trying to argue that Law Review isn’t financially comfortable (though the students themselves might not be), just reiterating that the proceeds are being used to subsidize a student organization, not going into the deep pockets of Harvard or some overpaid administrator. Some of the discussions gloss over this.

1 Like

Actually, that’s not what he says. He is simply quoting the copyright act. He then goes to explain that what he is doing is legitimate and that the Bluebook is attempting to exercise undue power related to terms of use. Go look at his post again.

The Bluebook is related to the work I usually do, such as safety codes and state laws, in that in all these cases this is knowledge that we are required to use. In the case of Bluebook, it has been adopted by our courts in addition to the fundamental nature the uniform system of citation plays in our overall legal system. The Bluebook has repeatedly attempted to stop Professor Bennett from doing useful work that would benefit the public and are clearly permitted under the copyright act, which quotes in his support.

When things have a public nature, they should be treated as such, and the Bluebook has not arisen to the standards we would expect of the guardian of such an important piece of our legal system. Working in the public sphere, which includes the privileged legal and financial status of a nonprofit corporation and the moral status of a leader in an important field, has certain obligations and the Bluebook is shirking those.

From what I read, they weren’t saying “no” to any and all use of the Bluebook: they were saying that what he wanted to do was incompatible with their online license, and that they would refund his online-license purchase if he didn’t agree with their license restrictions and instead wanted to work on his CSL project. And—as he points out—he could do his CSL if he used the physical Bluebook as his source, in which case he would be encumbered only by copyright law and not the additional software license associated with the Bluebook online. Furthermore, they never suggested he couldn’t do his CSL work with the physical Bluebook. Basically, they wanted to stick to the terms of their license and not cooperate with him, but didn’t try to prevent him from doing his project via the hardcopy Bluebook. Trying to cloak their actions as some sort of bad-faith copyright over-reach is itself a serious over-reach.

The Bluebook likely did not go out and hire Ropes just because you wrote them a letter. Ropes is almost certainly their outside counsel, and likely has been for some time. Note that Ropes has not raised any copyright issues with regard to anyone using the Bluebook abbreviations, citation style, or other unprotected content. The only thing that Ropes has objected to is your posting of unredacted excerpts and/or complete versions of the Bluebook online. I’m not sure what is so objectionable about this.

Finally, your implication that the Bluebook is the only style recognized by courts in the US is wrong. Different courts have different style requirements, and many of the style requirements are, in practice, only loosely observed.

Money is fungible. If the Bluebook wasn’t contributing to their bottom line, the law schools would be propping up these flagship law reviews every bit as much as they subsidize the secondary law reviews. Quite frankly I suspect the Bluebook’s considerable revenue stream actually is a net benefit to the parent institutions, at the expense of the substantial unpaid labour contributed by the law students who work on it.

Could be. Still, I think you’ll agree with me that from a rhetorical POV saying “I’m trying to liberate this material from Harvard” sounds a lot better than “I’m trying to liberate this material from a student organization at Harvard.”

This topic was automatically closed after 5 days. New replies are no longer allowed.