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

J-GREEN2 12/18/02 10:48 AM
190 HASTINGS LAW JOURNAL [Vol. 54
impair its ability to attract other students willing to pay tuition, as
well as its ability to raise money.” 87
G. Ghostwriters and Self-Plagiarists
What should we make of politicians and corporate executives
who use unnamed speech writers to write their speeches, movie stars
and other celebrities who use unacknowledged ghostwriters to write
their memoirs, and federal and state judges who rely on anonymous
law clerks to write their judicial opinions? 88 Does the fact that such
people present work written by others as their own mean that they
are guilty of plagiarism?
The first thing to note is that, in each of these cases, the actual
author consents to the second comer’s non-attribution. 89 I would
argue, however, that the author’s consent should not be a defense to
plagiarism (although consent is of course a defense to charges of
theft). If a student copies a term paper from an Internet cheat site
or fraternity file, the actual author has consented, but the student
has nevertheless committed plagiarism, because the student has
intentionally passed off another’s work as his own.
The real question is whether anyone is, or could be, harmed by
such conduct. When a student submits an Internet-purchased term
paper as her own, she causes no harm to the original author, but she is
likely to cause harm to her institution, instructor, and fellow students.
By contrast, when a politician, celebrity, or judge uses language
written by an unacknowledged ghostwriter, no one is harmed
because—unlike students and professors 90 —there is no cultural
expectation that such people write their own copy. To put it another
way, we can say that the norm of attribution does not apply to the use
of ghostwriters. And because the norm of attribution does not apply,
the rule against plagiarism does not apply either. 91
87. 125 F.3d 346, 367 (6th Cir. 1997).
88. See Gregory Baruch, Artful Deception: If Ghostwriters Are Indispensable, Why
Are They So Invisible?, WASH. POST, Mar. 31, 2002, at B1 (describing recent instances of
ghostwriting).
89. See Lerman, supra note 15, at 476 (“Ghostwriting is different from plagiarism in
that the ‘ghost’ is voluntarily writing for another, rather than having his written work
taken by another.”).
90. On the ethics of professors publishing a research assistant’s work under their own
name, see Bill L. Williamson, (Ab)using Students: The Ethics of Faculty Use of a Student’s
Work Product, 26 ARIZ. ST. L.J. 1029 (1994) (proposing new ethical rules to prevent
faculty misuse of student work).
91. In this context, it is interesting that Judge Posner, who apparently is one of a
“handful of judges who today still write their own opinions,” RICHARD A. POSNER,