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

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J-GREEN2 12/18/02 10:48 AM 168 HASTINGS LAW JOURNAL [Vol. 54 (3) Plagiarism as a Violation of the European Doctrine of Moral Rights...............................................................................................205 III. Plagiarism and the Law of Theft...............................................................208 A. Does Plagiarism Involve the Taking of “Property”? .........................208 (1) What Kinds of Things Are “Property” for Purposes of Theft Law? ................................................................................................208 a. Theft Law in Historical Perspective.............................................209 b. Theft Law and Property Today ....................................................211 i. Theft Law and “Intangibles” ....................................................211 ii. Theft Law and “Commodification” .........................................216 (2) What, if Anything, Does the Plagiarist Steal? ............................218 (3) Is “Credit” for Authorship a “Thing of Value” Within the Meaning of Theft Law? .................................................................219 B. Does Plagiarism Involve an “Intent to Deprive Another Permanently” of Property?...................................................................221 C. Does Plagiarism Involve an “Unlawful Taking” or Exercise of “Unlawful Control” Over Property “of Another”?...........................223 D. Would Prosecution of Plagiarism as Theft Be Preempted by Federal Copyright Law?......................................................................................224 E. Summary .................................................................................................227 IV. Prosecuting Plagiarism as Theft as a Matter of Public Policy and Broader Criminal Law Principles.............................................................228 A. Would the Criminal Prosecution of Plagiarism Constitute an Unwise Use of Government Resources?...........................................................228 B. Would the Prosecution of Plagiarism as Theft Be Consistent With the Underlying Goals of Theft Law?..........................................................231 (1) Deterrence ......................................................................................232 (2) Retribution......................................................................................234 V. Plagiarism as Theft and the Criminalization of Intellectual Property Law ..............................................................................................................235 A. The Gap Between Social Norms and Intellectual Property Crime Legislation...............................................................................................237 B. Intellectual Property Crime and the Paradigm of Theft....................240 Conclusion ..........................................................................................................241
J-GREEN2 12/18/02 10:48 AM November 2002] PLAGIARISM AND THEFT 169 Introduction In September 1990, the poet Neal Bowers published a poem in the journal Poetry, entitled “Tenth-Year Elegy.” It began like this: Careless man, my father, always leaving me at rest-stops, coffee shops, some wide spot in the road. I come out, rubbing my hands on my pants or levitating two foam cups of coffee, and can’t find him anywhere, those banged-up fenders gone. 1 A year later, a man named David Sumner published a poem in the Mankato Poetry Review, entitled “Someone Forgotten.” Sumner’s poem began like this: He is too heavy and careless, my father, always leaving me at rest-stops, coffee shops, some wide spot in the road. I come out, rubbing my hands on my pants or levitating two foam cups of coffee, and I can’t find him anywhere, that beat-up Ford gone. 2 Sumner, of course, had copied Bowers’s poem—line for line, practically word for word—and published it under his own name (actually, his own pseudonym), with a different title. 3 In a fascinating and eloquent memoir, entitled Words for the Taking, Bowers describes his reaction to discovering Sumner’s “crime” and his quest for retribution. “I was convinced,” Bowers says, that “something had to be done to rectify my . . . situation, though I wasn’t sure what that something was. I spent languid afternoons at home, when I should have been writing poems, fantasizing about how my thief would react if he opened his door and found me there, with accusations and evidence.” 4 Like many writers on plagiarism, Bowers characterizes the “offense” that has been committed in the language of criminal law. Again and again, plagiarists are referred to as “thieves” 5 or 1. NEAL BOWERS, WORDS FOR THE TAKING 27 (1997). 2. Id. 3. Bowers’s investigations revealed that Sumner’s real name was probably David Jones. Id. at 59. 4. Id. at 37–38. 5. Christopher S. Hawley, The Thieves of Academe: Plagiarism in the University System, 32 IMPROVING C. & U. TEACHING 35 (1984); Jacob Neusner, Foreword to First Edition, in THEODORE PAPPAS, PLAGIARISM AND THE CULTURE WAR 11 (1998).
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Plagiarism, Norms, and the Limits of Theft Law: Some ... - English

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