South Carolina Lawyers Weekly
It’s a safe bet that the people behind the esteemed “Bluebook” find nothing cute about “Baby Blue,” the new online, open source legal citation manual that went live earlier this month.
The Harvard Law Review Association, which publishes “The Bluebook: A Uniform System of Citation,” for years has been battling with the nonprofit Public.Resource.Org over the release of “Baby Blue’s Manual of Legal Citation.”
On Feb. 9, Public Resource finally delivered Baby Blue, despite more than two years of warnings from HLRA’s law firm, Ropes & Gray, which cited the Bluebook’s copyright interests.
New York University School of Law professor Christopher J. Sprigman, who undertook the Baby Blue project with his students, declines to comment on the situation.
“I don’t want to wave a red flag at them by talking about the back and forth,” Sprigman says of the simmering tensions.
The Bluebook — produced by HLRA with assistance from the Columbia Law Review Association, Yale Law Journal Co. and University of Pennsylvania Law Review — is in its 20th edition.
In 2014, Sprigman and his students got started on the project by “re-expressing” the rules of the Bluebook and choosing the best from hundreds of examples they made up, he says.
“We used language that is different than the Harvard Bluebook,” he says.
Sprigman teamed up with Carl Malamud, president of Public Resource, to edit and publish Baby Blue, a process that included input from outside copyright experts.
Malamud has had previous run-ins with the Bluebook folks. Several years ago, he played a behind-the-scenes role in a fight to get HLRA’s permission to put the standard citations for U.S. court abbreviations in an open-source format online. When HLRA refused, Malamud — arguing that the underlying uniform system of citation is not copyrightable — posted the abbreviations anyway.
Then, when he discovered the Bluebook’s 10th edition had not renewed its copyright and was in the public domain, he posted that, too.
In July 2013, Ropes & Gray partner Peter M. Brody shot off a letter to Malamud requesting that he remove Bluebook materials from the Public Resource website.
Brody wrote that a productive dialogue “will not be possible if it takes place under the threat of unilateral actions that would imperil the economic viability of The Bluebook by making it freely available.”
Tensions reached a flashpoint late last December after Malamud tweeted that he hoped to finish the Baby Blue manual by the end of 2015.
On Dec. 24, Brody fired off another letter to Malamud that referenced Malamud’s Twitter activity and requested an advance copy of Baby Blue, noting that his client “has been and remains concerned that the publication and promotion of such a work may infringe” the copyright of the Bluebook’s print or online version.
Brody went on to list HLRA’s numerous Bluebook trademarks and remarked that the title “Baby Blue,” “or any title consisting of or comprising the word ‘Blue,’” would violate his client’s federal and state rights.
Last month, Malamud responded directly to HLRA, writing that he did not “hold out much hope that we can reach consensus on such an agreement in a timely fashion.” The letter went on to ask HLRA to comment on a draft of Baby Blue, though the two sides reportedly could not come to an agreement over “confidentiality assurances and other preconditions,” Malamud says.
Brody did not respond to a request for comment.
For Malamud, “the big question now is are they going to sue us?” he asks. “We’re still waiting to hear from them.”
Meanwhile, law students at Harvard, NYU, Stanford and Yale have posted open letters online supporting the Baby Blue project. The Harvard students note that they have “a special obligation to make this system accessible.”
“The support is organic. It’s not ginned up by us,” Sprigman says.
The public comment period for Baby Blue runs through March 15.
