AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 31

MOTION for Order of Protection by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC. (Attachments: #1 Exhibit A - Proposed Order, #2 Exhibit B - Declaration of Jordana Rubel, #3 Exhibit B - Declaration Exh. 1, #4 Exhibit B - Declaration Exh. 2, #5 Exhibit B - Declaration Exh. 3, #6 Exhibit B - Declaration Exh. 4, #7 Exhibit B - Declaration Exh. 5, #8 Exhibit B - Declaration Exh. 6, #9 Exhibit B - Declaration Exh. 7, #10 Exhibit B - Declaration Exh. 8, #11 Exhibit B - Declaration Exh. 9, #12 Exhibit B - Declaration Exh. 10, #13 Exhibit B - Declaration Exh. 11, #14 Exhibit B - Declaration Exh. 12, #15 Exhibit B - Declaration Exh. 13, #16 Exhibit B - Declaration Exh. 14, #17 Exhibit B - Declaration Exh. 15, #18 Exhibit B - Declaration Exh. 16, #19 Exhibit B - Declaration Exh. 17, #20 Exhibit B - Declaration Exh. 18, #21 Exhibit B - Declaration Exh. 19, #22 Exhibit B - Declaration Exh. 20, #23 Exhibit B - Declaration Exh. 21, #24 Exhibit B - Declaration Exh. 22, #25 Exhibit B - Declaration Exh. 23, #26 Exhibit B - Declaration Exh. 24, #27 Exhibit C)(Fee, J.)

Exhibit 22

PUBLIC.RESOURCE.ORG ~ A Nonprofit Corporation
Public Works for a Better Government

June 14, 2013

Dean Martha L. Minow and Select Members of the Faculty
Erwin Griswold Hall, Suite 200
Harvard Law School
1563 Massachusetts Avenue
Cambridge, MA 02138
Dear Dean Minow and Select Members of the Harvard Law School Faculty:
The Harvard Law School is one of the four sponsoring institutions of the Bluebook: A
Uniform System of Citation®. The system of citation is owned by four law reviews. The
Harvard Law Review Association, the Columbia Law Review Association, and the Yale
Law Journal Company are all nonprofit corporations and the University of Pennsylvania
Law Review is an operating unit of the University of Pennsylvania. The 19th Edition
costs $26-$34 in bookstores and an online subscription costs $32 for 1 year and $50
for 3 years.
It is unclear from the Form 990s submitted by the sponsoring organizations exactly
how lucrative the Bluebook® is. A call to the Harvard Law Review to find out how much
money is made led to a flat refusal to discuss the matter by Mr. Denis O’Brien,
Circulation and Financial Director, who stated that the Bluebook® was a commercial
operation and was legally separate from the Law Review and that he would not disclose
that information. Email to the other organizations was not answered. Yet, despite (or
perhaps because of) these revenue streams, any reuse of the rules of citation is heavily
discouraged by claims of copyright and stringent terms of use, even for nonprofit or
academic uses. I am therefore bringing this matter to your attention.
It would be fair to say that the Bluebook® is required for every law student and law
library in the country. In addition, the Bluebook® is explicitly required by the rules of
many courts including the U.S. Court Of Appeals for the Eleventh Circuit, U.S. Court of
Appeals for the Armed Services, U.S. District Court for the District Of Delaware, U.S.
District Court for the Eastern District Of North Carolina, U.S. District Court for the
Eastern District Of Michigan, U.S. District Court for the District of the Virgin Islands,
U.S. District Court for the District Of Guam, U.S. Bankruptcy Court for the District Of
Colorado, U.S. Bankruptcy Court for the Middle District Of Florida, U.S. Department of
Education Office of Hearings and Appeals, Supreme Court of the State Of Delaware,
Florida Supreme Court, Indiana Supreme Court, Montana First Judicial District Court,
North Dakota Supreme Court, and the Supreme Court of Washington. It is not an
exaggeration to state that the Uniform System of Citation is a rule of these courts and
that any lawyer or non-lawyer appearing before these courts ignores the Bluebook® at
their peril.

[e-mail]

!

1005 GRAVENSTEIN HIGHWAY NORTH, SEBASTOPOL, CALIFORNIA 95472 • PH: [phone] • FX: [phone]

DEAN MINOW AND SELECT MEMBERS OF THE HARVARD LAW SCHOOL FACULTY, PAGE 2
As you know, Public.Resource.Org has worked closely for several years with several
members of the Harvard Law School faculty and staff to make edicts of government
more generally available. The resources we have made available on the Internet include
the opinions of the U.S. Courts of Appeals, dockets from the U.S. District Courts, state
statutes, state regulations, municipal codes, building codes, and materials
incorporated by reference into the Code of Federal Regulations. In each of these cases,
we have faced substantial resistance from entrenched commercial interests who felt
that charging for edicts of government was their right.
Making edicts of government available for citizens to read is an essential part of our
democratic process. The doctrine of ignorantia juris non excusat is meaningless if
access to the text of the law is a matter of access to money, available only to a
privileged few. The constitutional doctrines of equal protection and due process are
meaningless if payment of a tax is the condition for access to justice.
A strong legal argument can be made that the Bluebook®, by being required in the
rules of numerous courts, has become an edict of government. But, most importantly,
it is clear that the stringent and unbending copyright restrictions surrounding the
Bluebook® are a huge brake on innovation for the legal profession. Those who would
build new legal tools that incorporate the mechanics of citation are prohibited from
doing so by the terms of use and the lack of response to requests for permission by
the current corporate owners of the Bluebook®.
Absolute prohibitions on use for something as basic as the rules of citation are very
unusual. In the United Kingdom, the Oxford University Standard for Citation of Legal
Authorities (OSCOLA) is freely available under a Creative Commons license. The New
Zealand Law Style Guide is freely available on the Internet. The Australian Guide to
Legal Citation is freely available on the Internet.
Yet, when Professor Frank Bennett, a professor and talented developer at the Nagoya
University Graduate School of Law wished to use rules in the Bluebook® to develop
better citation tools, he was met with a series of vague but intimidating legal threats
and was compelled to retain the services of Professor Lawrence Lessig to represent
him. Even with such an eminent personage as his lawyer, Professor Bennett was not
given permission to use this material. The copyright restrictions and lack of
responsiveness of the owners has a dramatic chilling effect on innovation.
In the course of our business, Public.Resource.Org purchased a printed copy of the
19th Edition of the Bluebook®. We had the entire text re-keyed and transformed to
valid XHTML, including some advanced work in CSS to represent some of the key
components. A digital copy of this transformative and derivative work is enclosed on a
George Washington USB Thumb Drive for your consideration. Public.Resource.Org is
using a CC-Zero License on this work, waiving any rights that we might have. If you or
others choose to publish the enclosed work, we would be delighted.
We know that making this transformative work and sending you a copy without prior
permission may expose us to legal accusations from those who wish to keep a close
guard on their rights to extract rent. We are willing to bear that risk because we believe
that once this matter is considered, you will join us in our conviction that enforcing a
monopoly over a system of citation in the Internet era is immoral and nonsensical and
impedes the advancement of the study and practice of law in our democratic system.

DEAN MINOW AND SELECT MEMBERS OF THE HARVARD LAW SCHOOL FACULTY, PAGE 3
We understand that the issues we bring to your attention are complicated, involving
large sums of money and four institutional stakeholders. Further study of the issues
would certainly be prudent. One course of action would be to appoint a Blue Ribbon
Commission on the Bluebook to cut through the red tape, with an explicit charge to
consider a CC-Zero or other Creative Commons license.
I would of course be glad to assist you in such an inquiry, but I think you will find there
are many more qualified members on this subject in the legal academy. For example,
Judge Richard Posner has spent considerable time studying the question of citation, as
has Professor Robert C. Berring, Jr., one of the leading experts on the subject and a
former president of the American Association of Law Libraries.
Thanks again for the wonderful work you and the Harvard Law School have been doing
with your open access policies and, as always, for the wonderful work of the Berkman
Center and the library.
Please don’t hesitate to let me know if I can provide any more details on the Bluebook
question or can assist you in conducting an inquiry into this important matter.
Sincerely yours,

Carl Malamud
Public.Resource.Org