Along with Brian Frye and Mike McCloskey, I am about to publish in the George Washington Law Review an article about Justice Harlan’s lecture notes, as well as the annotated lecture notes in their entirety. We are just finishing up the final edits, so obviously these works were on my mind.
Last night I had this very, very bizarre dream. The Supreme Court found out that we were publishing this article, and issued a cease and desist letter ordering to stop the publication of the lecture notes. The lecture notes, which were transcribed in 1897-1898, were given to Justice Harlan II in 1955. He, in turn, deposited them in the Library of Congress. The cease and desist letter reasoned that because Justice Harlan II deposited them to the Library of Congress, the Supreme Court retained control over them, and they did not belong in the public domain (wouldn’t be the first time the Supreme Court takes a policy that is clearly wrong). Even though the actual lecture notes were over a century old, the Supreme Court asserted a copyright over them. I remember going to the Library and asking the librarians about the copyright issues, and they told me that the Supreme Court was right on the law. Then (in what must be my Edward Snowden moment) I decided to release the notes myself on my blog, knowing that I would get in trouble with the Supreme Court. I said these documents were too important to keep in a vault somewhere. I don’t remember if I ever actually did release them, but I was resolute.