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

J-GREEN2 12/18/02 10:48 AM
196 HASTINGS LAW JOURNAL [Vol. 54
A. The Treatment of Plagiarism Through Informal Social Stigma
The prohibition on plagiarism, as described above, provides a
kind of a paradigm of social norms. Those who violate what I have
called the norm of attribution by committing plagiarism risk, in the
first instance, the disesteem of their peers. A poet, scholar, historian,
novelist, or filmmaker who is exposed as a plagiarist will suffer the
disapprobation of precisely those colleagues whose opinion he most
values. Such a sanction is particularly appropriate because the
plagiarist is denied exactly the social good that his unattributed
copying is intended to elicit—namely, the esteem of his peers and the
benefits that flow from such esteem, such as academic credit, prestige,
and financial reward.
There is, however, a good deal of inconsistency in both the
reaction plagiarism elicits and the manner in which it is treated within
and across sub-communities. In some circumstances, a wellsubstantiated
charge of plagiarism is enough to ruin a career, cast a
permanent shadow of disgrace over the offender, or even merit a
front page article in the New York Times. 118 Other times, plagiarism is
viewed as a mere foible, a slight faux pas, a momentary lapse of
judgment. In some such cases, as Bowers has observed, 119 the
plagiarized accuser is viewed as paranoid and desperate, and the
alleged plagiarist becomes the victim—a dynamic that is sometimes
played out in the form of defamation suits brought by alleged
plagiarists against their accusers. 120
There is, of course, a significant normative difference between
passing off as one’s own an entire short story, poem, or scholarly
article, and failing to attribute an occasional phrase or sentence in an
otherwise original book. Copying another’s words verbatim,
moreover, may be more objectionable than merely paraphrasing
them. Another factor that explains such disparate treatment may be
the prominence of the plagiarist or his victim. As we have seen,
plagiarism involving best-selling historians and novelists, for example,
is more likely to elicit attention than plagiarism committed by
unknowns.
118. Cf. MALLON, supra note 8, at xi:
Each day, citizens bludgeon other citizens with ballpeen hammers, or set fire to
seniors, or whatever, and in return often receive the most modest of penalties, or
sometimes none at all—and rarely, in any event, have their faces plastered on the
front page of the New York Times.
119. See BOWERS, supra note 1, passim.
120. E.g., Feldman v. Bahn, 12 F.3d 730 (7th Cir. 1993); Haugh v. Bullis Sch., 900 F.2d
252 (4th Cir. 1990); Abdelsayed v. Narumanchi, 668 A.2d 378 (Conn. App. Ct. 1995).