Plagiarism--Posner Post

Recent �scandals� involving charges of plagiarism by professors and other writers treat plagiarism as (1) a well-defined concept that (2) is unequivocally deserving of condemnation. It is neither. Take the second point first. The idea that copying another person�s ideas or expression (the form of words in which the idea is encapsulated), without the person�s authorization and without explicit acknowledgment of the copying, is reprehensible is, in general, clearly false. Think of the remarkable series of �plagiarisms� that links Ovid�s Pyramus and Thisbe with Shakespeare�s Romeo and Juliet and Leonard Bernstein�s West Side Story. Think of James Joyce�s Ulysses and of contemporary parodies, which invariably copy extensively from the original�otherwise the reader or viewer would not recognize the parody as a parody. Most judicial opinions nowadays are written by law clerks but signed by judges, without acknowledgment of the clerks� authorship. This is a general characteristic of government documents, CEO�s speeches, and books by celebrities. When unauthorized copying is not disapproved, it isn�t called �plagiarism.� Which means that the word, rather than denoting a definite, well-recognized category of conduct, is a label attached to instances of unauthorized copying of which the society, or some influential group within it, disapproves. In general, disapproval of such copying, and therefore of �plagiarism,� is reserved for cases of fraud. The clearest example is a student�s buying an essay that he then submits for course credit. By doing this he commits a fraud that harms competing students and prospective employers. Another clear example is the professor, or other professional writer, who steals ideas or expression from another professor or writer, and by doing so obtains royalties or tenure or some other benefit that he would not have gotten were the truth known�again, a case of fraud. It is less serious than the student fraud, however, because it is more likely to be caught. A student essay is not published and so will not be widely read. A published work is quite likely to be read or brought to the attention of the author of the purloined work. The easier it is to detect a wrongful act, the lesser is the punishment required to deter (most of) it; this may be why�to the outrage of students�plagiarism by faculty tends to be punished less severely than plagiarism by students. Moreover, whereas a student plagiarism has absolutely no social value, plagiarism in a published work may have such value. If what is plagiarized is a good idea, the plagiarism creates value by disseminating it further than the original author may have done. Moreover, the plagiarist may add his own input to the plagiarized idea and as a result produce a superior work. I lumped together copying a professor�s work and copying the work of another type of professional writer, say a writer of popular history. In both cases, the copying will probably be a copyright infringement. In both cases, too, the copying will be a form of fraud. What will differ in the two cases is the injury that the fraud inflicts. In the case of the popular writer, the injury will be a loss of royalties or other fees�and will usually be negligible, unless the plagiarist is trying to produce a substitute for the work, rather than just enhancing a noncompeting work with incidental material from another book. The academic writer will usually suffer no loss of royalties even if the plagiarized work is a direct substitute, because few academic writings generate royalties (textbooks are the principal exception). But he may suffer grievously nevertheless, because recognition of original contributions is the key currency of academic reward and that recognition is blurred when someone fails to acknowledge another�s priority. The contrast in this regard with judicial opinions is very striking. Far from flaunting their originality, judges try to conceal it. They like to pretend that rather than making up new law, they are merely applying existing law made by others. So they do not complain at all if another judge or a law professor �steals� novels ideas that they have managed without acknowledgment to smuggle into some of their opinions. Perhaps the most difficult current question about plagiarism concerns the �managed book,� or more broadly the use of research assistants or other aides in the creation of a book. The term refers to a book in which the nominal author is actually an editor�an assembler and maybe a reviser�of work done by persons whom he has hired. He is much like a movie director. He presides over the composition of the work rather than being the composer. The phenomenon is not new; according to An Unfinished Life, Robert Dallek�s recent biography of John F. Kennedy (a biography highly favorable to its subject, but not uncritical), Profiles in Courage was a �managed book� (not Dallek�s term, though). Many judicial opinions are of this character. It seems likely that many multivolume treatises by (that is, nominally by) law professors are �managed books� in which most of the actual writing is done by student research assistants�though I am guessing; I have no actual evidence. Let me say, as someone who has written a number of books, that the idea of writing a �managed book� is not to my personal taste. I think that the person who writes a first draft largely controls the final product, even if it is carefully edited by the �author� of the managed book. But the issue of plagiarism has nothing to do with the taste of particular writers. It is an issue of fraud. So the question regarding the managed book is whether failure to disclose that most of the actual writing was done by persons other than the nominal author misleads readers to their detriment. That depends mainly on the conventions, and hence expectations, of a particular field. A professional historian who �authored� a managed book without disclosure of the fact would be committing a fraud because his fellow historians would think he�d written it himself. At the opposite extreme, few lawyers care whether a judicial opinion is written by a law clerk or by the judge, provided they think it�s the judge�s decision (the bottom line, the outcome), which it almost always is. In between is the legal treatise�the American legal treatise, that is; for it has long been the norm in Germany and other European countries for academic law books to be written by the assistant to the professor under whose name the book will be published. That is not the norm in the United States. I believe without knowing that the delegation of the writing of extensive portions of such works is recent, and much of the profession, including the treatise author�s colleagues, may be unaware of the trend�if there is a trend, of which I am not certain. It would be prudent, therefore, for such treatise writers to acknowledge the coauthoship or first-draft responsibility of their students, in order to avoid a charge of plagiarism.

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