Plagiarism, Norms, and the Limits of Theft Law: Some ... - English

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J-GREEN2 12/18/02 10:48 AM 182 HASTINGS LAW JOURNAL [Vol. 54 magazines do not even have a written code of conduct. 53 Thus, when some people think about plagiarism, they are assuming that it requires an intentional or knowing act. Others are thinking about conduct that is inadvertent, though perhaps recklessly or negligently so. Should plagiarism require an intent to deceive or some other mental element, or should it be viewed as a strict liability offense? I would argue that, just as morality informs law, so too should law inform morality. If theft requires intent, and plagiarism derives much of its meaning from theft law, it seems to follow that plagiarism should also require intent. At the same time, I would modify this requirement to say that the element of intent can be satisfied by “deliberate indifference” to the obligation to attribute. That is, if the reason a person was unaware that he was copying or failing to attribute is that he was deliberately indifferent to the requirements of attribution, he should be viewed as having committed plagiarism. Consider the recent cases involving the noted historians, Doris Kearns Goodwin and the late Stephen Ambrose. Beginning in January 2002, Ambrose was accused of failing to properly attribute works quoted in his books The Wild Blue, 54 Crazy Horse and Custer, 55 Nothing Like it in the World, 56 and Citizen Soldiers. 57 Shortly thereafter, Goodwin was accused of copying up to fifty improperly attributed passages from the work of Lynne McTaggart, in her book FLORIDA STATE UNIVERSITY ACADEMIC HONOR SYSTEM, available at http://www. fsu.edu/%7Eunion/honor.htm#code; ACADEMIC INTEGRITY, in NORTHWESTERN UNIVERSITY STUDENT HANDBOOK, available at http://www.stuaff.northwestern.edu/ parent/studenth/academics/grades.html; UNIVERSITY OF SOUTH CAROLINA ACADEMIC HONOR CODE, available at http://www.uscs.edu/catalog/wstudentaffairs.pdf; WESTERN MICHIGAN UNIVERSITY STUDENT CODE, available at http://www.studentworld. wmich.edu/sja/studentcode.html#dishonesty. The American Historical Association’s influential “Statement on Plagiarism” also does not specify whether plagiarism requires intent. See AMERICAN HISTORICAL ASSOC., 2002 STATEMENT ON STANDARDS OF PROFESSIONAL CONDUCT, available at http://www.theaha.org/standard_02.htm. 53. See infra note 134. 54. Fred Barnes, Stephen Ambrose, Copycat, THE DAILY STANDARD, Jan. 14, 2002, available at http://www.weeklystandard.com/Content/Public/Articles/000/000/000/738lfddv. asp. 55. Hillel Italie, Ambrose Plagiarism Claimed: Noted Historian Faces Second Allegation, THE ADVOCATE (Stamford, Conn.), Jan. 9, 2002, at 4-B. 56. Mark Lewis, Ambrose Controversy: Nothing Like It in the World? Hardly, FORBES, Jan. 17, 2002, available at http://www.forbes.com/2002/01/17/0117ambrose.html 57. Julia Kamysz Lane, A Brief History of the “P” Word, POETS & WRITERS, May– June 2002, at 6.
J-GREEN2 12/18/02 10:48 AM November 2002] PLAGIARISM AND THEFT 183 The Fitzgeralds and the Kennedys. 58 Both Ambrose 59 and Goodwin 60 acknowledged their unattributed copying (or at least some of it), which they blamed on sloppy note taking rather than any intentional or knowing deception, and promised to include proper attribution in future editions of their books. 61 Under a strict liability regime, both would be guilty of plagiarism, despite their supposed lack of mens rea. Under a code that required intent, knowledge, or perhaps deliberate indifference, the question would be much more difficult. While there is no evidence that either Ambrose or Goodwin actually intended to plagiarize, it seems quite possible that both were deliberately indifferent to the requirements of attribution. According to newspaper accounts, Ambrose, in order to maintain his prolific, and lucrative, output of recent years, used his son, Hugh, as a collaborator, with additional research help from his four other children. 62 The result seems to have been a loss of control over his own books. It may well be—and one can only speculate about such things—that Ambrose essentially stuck his head in the sand, purposely avoiding the possibility that he might become aware of plagiarism in his work. As for Goodwin, it seems hard to imagine 58. David D. Kirkpatrick, Historian Says Publisher Quickly Settled Copying Dispute, N.Y. TIMES, Jan. 22, 2002, at A10; David D. Kirkpatrick, Historian Says Borrowing Was Wider Than Known, N.Y. TIMES, Feb. 23, 2002, at A10. 59. Italie, supra note 55. Ambrose offered his response to charges that he had plagiarized on his website: When I’m using the words of an interview—which is what I rely on, mostly—I always use quotation marks around the phrases or sentences. When I’m using information or description from books by scholars, I always cite the source. But if I have already named a praised [sic] and quoted the author in my book, I don’t name him or her again, and sometimes I have failed to put quotation marks around their words. I’m not trying to hide anything. Indeed, I want people to read their books. Stephen Ambrose, Statement on My Writing Methods, available at http://www. publishersmarketplace.com/lunch/archives/week_2002_05_05.html. 60. Oliver Burkeman, Plagiarism Row Topples Pulitzer Judge, GUARDIAN, Mar. 6, 2002, at 18; Lane, supra note 57. Goodwin explained the circumstances that led her to fail to attribute several quotes in a brief essay. Doris Kearns Goodwin, How I Caused That Story: A Historian Explains How Someone Else’s Writing Wound Up in Her Book, TIME, Feb. 4, 2002. 61. Marilyn Randall has referred to a “notebook syndrome,” “in which sloppy and/or obsessive note-taking on the part of the author is blamed for the fact that, somehow, unacknowledged passages taken from writers end up without quotation marks in a new context.” RANDALL, supra note 43, at 132. 62. David D. Kirkpatrick, As Historian’s Fame Grows, So Does Attention to Sources, N.Y. TIMES, Jan. 11, 2002, available at http://www.nytimes.com/2002/01/11/ national/11AMBR.html.
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