The new (and much improved) 'Bluebook' caught in the copyright cross-hairs

[UPDATE: The original post was updated to clarify that it is not Harvard Law School but rather the Harvard Law Review Association that is attempting to interfere with the publication of "BabyBlue." And note that as of 2/11/16, the HLRA appears to have withdrawn its objections—at least, BabyBlue has now been released, available here]

War is brewing over the most boring piece of intellectual property imaginable: the "Bluebook," the 580-page quasi-authoritative source of proper legal citation formats published by the Harvard Law Review, described by Adam Liptak of the New York Times a few months ago as "a comically elaborate thicket of random and counterintuitive rules about how to cite judicial decisions, law review articles and the like [that] is both grotesque and indispensable."

Students at NYU Law School have prepared a new, streamlined, open-access citation system and gotten it ready for publication; but Chris Sprigman, a law prof at NYU, posted this open letter to his "law professor friends" yesterday:

I am writing to ask you to help me with something important. You may know that for the last year, I've been working on a public domain implementation of the Bluebook's Uniform System of Citation.

The work, which I've named ‪#‎BabyBlue‬, is now done, but we're holding it, because the Harvard Law Review Association has hired counsel and is threatening to sue (me, and Carl Malamud of PublicResource.org, the publisher).

Today, a group of Yale Law students released a letter supporting #BabyBlue. The letter has almost 120 signatures, and more are being added as I type.

It would be very helpful if you could make inquiries at your schools to see if your students would be interested in expressing their views publicly. I don't presume to know what those views are. But here are mine:

(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?

This is really important. So, can you help?

The conflict has been brewing for a few months—starting with a letter from Harvard Law Review's lawyers to publisher Carl Malamud of PublicResource.org:

I write concerning . . . your imminent release of an "implementation of the Bluebook's Uniform System of Citation" called "BabyBlue," possibly as soon as December 31, 2015. Based on the description of "BabyBlue" … we believe that "BabyBlue" may include content identical or substantially similar to content or other aspects of The Bluebook that constitute original works of authorship protected by copyright, and which are covered by various United States copyright registrations.

For the reasons set forth in our previous letters … my client has been and remains concerned that the publication and promotion of such a work may infringe the Reviews' copyright rights in The Bluebook and The Bluebook Online, and may cause substantial, irreparable harm to the Reviews and their rights and interests in those works.

It's copyright nonsense, and Harvard should be ashamed of itself for loosing its legal hounds to dispense it in order to protect its (apparently fairly lucrative) publication monopoly.

Here's a bit of free legal advice: If you want to assert copyright protection over something, don't call it "A Uniform System of Citation"— because systems are, by definition, unprotected by copyright. Section 102(b) of the Copyright Act couldn't be clearer:

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

And Sprigman is correct: This is important. I've written before about the rather disgraceful state of public access to the law in this country, and this is yet another aspect of the larger problem. Free and open access to the language of the law is pretty fundamental to a functioning democratic legal system. Even if HLR had a viable copyright claim—and it doesn't—its assertion of the claim is something of an affront to the legal system it is supposed to serve.

[And just to add a nice ironic touch to the proceedings, this all comes on the heels of an article by two Yale Law School librarians, Fred Shapiro and Julie Graves Krishnaswami, challenging the notion that Harvard's system is actually Harvard's—i.e., that the Bluebook was actually authored by Harvard—further weakening Harvard's already weak copyright interest in "its" citation system.]