Word Crimes and Misdemeanors

Read Time:
7m 16sec


By Richard A. Posner. Pantheon.
116 pp. $10.95

Reviewed by Wendy ­Kaminer

Plagiarism, like infidelity, is a habit that few defend but many indulge. You can discern its frequency and covert acceptability in the ready excuses offered by and on behalf of eminent writers and professors periodically caught copying the work of less eminent writers or research assistants. Consider the group of famous novelists who rushed to defend British writer Ian McEwan for borrowing sentences from a memoir by the late Lucilla Andrews in his ­best-­selling novel Atonement. McEwan and his advo­cates stressed that he had acknowl­edged a general debt to Andrews, and they asserted that fiction writers have creative license to borrow and embellish, especially when writing historical fiction. That principle is not terribly controversial, but it may not apply in this case. As Slate media columnist Jack Schafer suggested, while McEwan said he creatively embellished, others might fairly say he ­copied.

Nonfiction writers and scholars charged with plagiarism are less likely to claim a license to copy than to cop to a lesser offense, such as disorganization. They acknowledge the inadvertent omission of footnotes and quotation marks, or blame their own inade­quate notes for leading them to mistake other people’s words for their own, while vigorously denying that any of these “mistakes” might constitute plagiarism. This effectively defines plagiarism to exclude even gross or implausible acts of negligence, especially when committed by established writers or scholars presumed by their friends to have no need to plagiarize. As Harvard constitutional law professor Laurence Tribe asserted in defense of historian Doris Kearns Goodwin after the first revelation of her borrowings in 2002 (others followed), Goodwin had merely been “slop­py with her sources in a minuscule part of her truly extraordinary body of work a dec­ade and a half ago.” A few years later, Tribe himself was exposed as a borrower; he apologized, blaming his ­“well-­meaning effort” to write a book for a lay audience that was free of ­footnotes.

In The Little Book of Plagiarism, Richard Posner observes that plagiarism is not “especially heinous” but “embarrassingly second rate,” which partly explains why officially ­first-­rate writers caught copying seem to regard plagiarism as a crime that other people commit. Posner, a federal appellate court judge, lecturer at the University of Chicago Law School, and author of an impressive array of big books as well as little ones, offers an idiosyncratic primer on plagiarism and intellectual property, combining bytes of history, law, and cultural analysis in an essay of about 100 pages. The book’s conclusion seems rushed and perfunctory, but this is an otherwise enjoyable “Cook’s tour.”

Posner locates the modern concept of plagiarism at least partly in the development of a market for “expressive works,” which supplanted the private patronage of writers and other artists, and carefully distinguishes plagiarism from allusion and “creative imitation,” as practiced by Shakespeare, claimed by McEwan, and increasingly limited by copyright law. (As Posner explains, copyright infringement, unlike plagiarism, can include borrowings that are openly acknowledged: If you reprinted this book review in its entirety, with attribution but without my permission, you would not be guilty of plagiar­ism, but you would violate my copyright.)

Posner’s approach is typically dispassionate. He notes that his analysis reflects his long-standing interest in intellectual property, as a judge and an academic, conspicuously omitting any reference to his interests or experiences as a writer. (Have they had no effect on his views?) He acknowledges that victims of plagiarism sometimes suffer significant “competitive harm,” and observes that “attribution is important to creators of intellectual work even when there is no direct financial benefit.” But he centers his definition of plagiarism on harm to the con­sumer, not the creator, asserting that copying becomes plagiarism when the reader relies on the plagiarist’s deceit: “The reader has to care about being deceived about authorial identity in order for the deceit to cross the line to fraud and thus constitute plagiarism.”

This rather narrow definition of ­plagiarism—­which some creators of intellectual property might well ­contest—­exempts the many judges who sign their names to opinions written by law clerks. Most readers of judicial opinions, says Posner, realize that they are written by clerks, who understand that they are hired to draft opinions. Laypeople who believe falsely that judges write their own opinions do not rely on that belief and would not “change their behavior” if it were dispelled. Besides, law values predictability, not originality. So while there may be “an element of deceit” in ghostwritten legal opinions, Posner suggests that there’s no real harm in ­them.

It’s hard to argue with this proposition, unless perhaps you’re Richard Posner. In his astute 1988 New Republic article “The Culture of Plagiarism,” Ari Posner (reportedly no relation) revealed that Judge Posner, “who says he writes his own opinions, believes that overreliance on clerks is insidious. The process of writing itself, he argues, ‘often brings to light mis­takes, omissions, inconsistencies that in spoken language one doesn’t notice’ and might actually lead a judge to change his mind. And law clerks are ‘young and timid writers who write in a very bureaucratic style, who downplay policy considerations and tend to rely very heavily on footnotes, citations, and appeals to authority.’ ”

As Posner’s shifting perspective on the authorship of judicial opinions shows, plagiarism is a slippery subject, partly because it’s difficult to quantify the underlying harm of appropriation. Today, thanks in part to tech­nology, appropri­ation is apt to be seen as a virtue as much as a vice: In the music world, sampling is considered an art (though in court it may be deemed a copyright violation). Technology facilitates the detection of plagiarism with new software programs, Posner notes, but it also facilitates plagiarism, obviously. You can appropriate someone else’s sentences without even bothering to retype ­them.

As plagiarism becomes easier to commit and more common, it is likely to become more re­spectable, or at least less embarrassing. The mantra that information, including the individualized expression of ideas, should be free and universally accessible partly reflects the fact that so much material on the Internet is free and universally accessible. Appropriating it doesn’t neces­sarily feel like stealing, especially to members of the digital generation. Posner correctly regards digitization as a threat to plagiarists, but the culture it helps shape may also prove to be their best defense. Plagiarism is still regarded as “the capital intellectual crime” by most writers, teachers, and scholars, Posner writes, but you have to wonder if plagiarism’s severest critics tend to be of a certain ­age.

Its defenders may share an ideology, Posner suggests, characterizing “the Left” as “soft on plagiarism” because its theorists are hard on individualist notions of authorship. But the musings of the obscure postmodernists whom Posner cites don’t support generalizations about the appropriative proclivities of the Left, which is hardly monolithic. Ethics are not generally functions of particular political ideol­ogies anyway. Left and right, people lie, steal, and cheat with varying degrees of guilt or self-­righteousness.

Apolitical popular culture nurtures plagiarism much more than any political theory. The market­place often rewards imitation more than originality, as the proliferation of movie sequels attests. “The desire to be original and the desire to be successful are not wholly compatible,” Posner acknowledges. High school students whose college application essays are “edited” or partly drafted by writing coaches, as well as authors who assemble rather than write their own books, might agree. But Posner also asserts, “Ours is a time and place in which market forces favor originality and in which a robust concept of plag­iarism backs up the market valuation.”

In other words, the market favors originality, except when it doesn’t. Posner favors creativity. In his view, an original work has no inherent aes­thetic value; it might simply be “unimagin­ative hack work.” But the effort to create, or to imag­ine, an original work has value, regardless of the result. Creativity, imagination, and the quest for originality are not so easily divorced. Students are apt to learn more from “D” papers they struggle to write than any “A” paper they purchase, or ­steal.

They might also learn to appreciate the in­timate proprietary relationship between writers and their own carefully chosen words. Plagiarism is a parasitic offense, whether or not it’s inten­tionally or even tangibly harmful. Unlike imitation (properly acknowledged), it is not a form of flattery, any more than stalking is an expression of respectful admiration. Why does plagiarism generate such hostility? It is essentially a hostile act—of impersonation, not homage.

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