Paul L. Caron
Dean




Monday, February 16, 2015

Is The Bluebook Subject to Copyright Protection?

BluebookABA Journal, Legal Minds Differ on Whether The Bluebook Is Subject to Copyright Protection:

Controversy is probably not the first thing that comes to mind when you think of The Bluebook, but the bible of legal citation is at the center of an increasingly nasty dispute over whether it is subject to copyright protection.

Open-source advocates are contending that the style and citation manual is an essential piece of legal infrastructure and can't be preserved as private property under copyright law. The book's publishers say otherwise.

The dustup began when Frank Bennett, an academic at Nagoya University Graduate School of Law, wanted to add The Bluebook to Zotero, an open-source citation tool. "He was told to stay off the grass," says Carl Malamud, president of Public.Resource.org, whom Bennett later contacted. "It really bothered me."

https://taxprof.typepad.com/taxprof_blog/2015/02/is-the-bluebook-.html

Legal Education | Permalink

Comments

It seems like an easy case. The Blue Book is copyrightable, but the system of citation is not. Thus, nobody can post the text of the Blue Book, but it should be fine to publish Baby Blue, or, indeed, the content of the current Blue Book but with different examples and rewritten. In fact, it should be possible to rewrite it with extensive quotes where necessary to show what the exact rule in the Blue Book is, as a matter of fair use.

Posted by: Eric Rasmusen | Feb 18, 2015 7:30:20 PM

Mr. Seto,

There are requirements beyond fixation, most notably "a modicum of creativity." There may be a case to be made that it has that modicum, but I wouldn't take it for granted. Further, the same case expressly rejected the "sweat of the brow" approach to copyright, so the hard work argument is a nonstarter. Perhaps the claim's greatest vulnerability is that the book was first published in 1958, which means its copyright must be considered under the 1909 Act, which did not automatically grant copyright at the moment of fixation. I note that there is no copyright symbol attached to the current edition. If this is how the book was printed in pre-1978 editions, the book would become public domain when it was distributed to the public.

Then there are arguments regarding the way it is used. It is a reference manual that is used by an entire profession as well as academics. This would be akin to seeking copyright for building codes, another professional necessity and a subject for which the courts have rejected copyright.

The claim seems to be resting on some examples that were added to the book. Given the original might be public domain, a court would have to decide if those examples could render the later editions subject to protection. Even if they were, a public domain edition that scrubs those examples wouldn't be hard to print. In fact, given how bereft The Bluebook is of good examples, crowdsourcing online might make for a better product.

Posted by: mojavewolf | Feb 16, 2015 6:17:10 PM

This is nonsense and reflects a fundamental misunderstanding of copyright law. As the U.S. Copyright Office website explains, copyright protection attaches automatically without registration once the text is "created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device." "[R]egistration is voluntary. Copyright exists from the moment the work is created." The Bluebook is revised every five years by student editors from the Harvard, Yale, Columbia, and Pennsylvania law reviews. In other words, it is the product of someone's hard work; the text does not fall like manna from heaven. Revenues from the Bluebook pay for a significant portion of those reviews' budgets. Anyone who republishes the Bluebook without permission is liable for damages -- potentially very large damages. When I was Executive Editor of the Harvard Law Review, we sold about 100,000 copies per year. I doubt that the press run is that large any more, but $30 times any significant fraction of that number represents an appreciable financial exposure to any copyright violator.

Posted by: Theodore Seto | Feb 16, 2015 2:49:16 PM