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

J-GREEN2 12/18/02 10:48 AM
170 HASTINGS LAW JOURNAL [Vol. 54
“criminals,” 6 and plagiarism as a “crime,” 7 “stealing,” 8 “robbery,” 9
“piracy,” 10 or “larceny.” 11 Even some dictionaries define plagiarism as
“literary theft” 12 —a definition that is consistent with the term’s
etymological origin, the Latin word plagium (which, at Roman law,
referred to the stealing of a slave or child). 13
Yet, despite such talk, the fact is that no plagiarist has ever been
prosecuted for theft. We might well wonder: Is the notion of
“plagiarism as theft” anything more than a recurring metaphor, like
saying that a real estate developer “raped” the land or that a lawyer’s
fees constituted “highway robbery”? Does plagiarism satisfy the legal
definition of theft, and if so, why isn’t it prosecuted as such? Does it
have the same moral weight as other forms of theft? And if
plagiarism fails to meet the legal or moral definition of theft, what, if
anything, might we learn from that fact?
Plagiarism itself is a complex and interesting concept, one that
lies at the very foundation of academic and literary culture. As the
recent controversies over unattributed copying by historians Doris
6. James R. Kincaid, Purloined Letters, NEW YORKER, Jan. 20, 1997, at 95. Kincaid’s
article also begins by quoting from Bowers’s and Sumner’s poems.
7. SKIDMORE COLLEGE DEPARTMENT OF CLASSICS, STUDY SKILLS/ WRITING
IN CLASSICS/ RESEARCH PAPERS, at http://www.skidmore.edu/academics/classics/
plagiarism.html.
8. BOWERS, supra note 1, passim. See generally JUDY ANDERSON, PLAGIARISM,
COPYRIGHT VIOLATION, AND OTHER THEFTS OF INTELLECTUAL PROPERTY: AN
ANNOTATED BIBLIOGRAPHY WITH A LENGTHY INTRODUCTION (1998); MARCEL C.
LAFOLLETTE, STEALING INTO PRINT: FRAUD, PLAGIARISM, AND MISCONDUCT IN
SCIENTIFIC PUBLISHING (1992); THOMAS MALLON, STOLEN WORDS: FORAYS INTO THE
ORIGINS AND RAVAGES OF PLAGIARISM (1989); JUNE & WILLIAM NOBLE, STEAL THIS
PLOT: A WRITER’S GUIDE TO STORY STRUCTURE AND PLAGIARISM (1985); MAURICE
SALZMAN, PLAGIARISM: THE “ART” OF STEALING LITERARY MATERIAL (1931). In
Jewish tradition, according to Joseph Telushkin, plagiarism is viewed as a kind of “double
thievery: You steal the credit due to the person who first enunciated the idea, and then
you engage in what Jewish ethics calls g’neivat d’at (‘stealing the mind’): you deceive your
listeners into thinking that you are smarter or more knowledgeable and insightful than you
really are.” JOSEPH TELUSHKIN, THE BOOK OF JEWISH VALUES: A DAY-BY-DAY
GUIDE TO ETHICAL LIVING 93–94 (2000).
9. Jamie McKenzie, The New Plagiarism: Seven Antidotes to Prevent Highway
Robbery in an Electronic Age, FROM NOW ON: EDUC. TECH. J. (May 1998), at
http://www.fno.org/may98/cov98may.html.
10. ALEXANDER LINDEY, PLAGIARISM AND ORIGINALITY 3 (1952).
11. Id. See also Kincaid, supra note 6, at 97; K.R. ST. ONGE, THE MELANCHOLY
ANATOMY OF PLAGIARISM 1 (1988); PAPPAS, supra note 5, at 30.
12. MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 888 (10th ed. 1998)
[hereinafter MERRIAM-WEBSTER] (to plagiarize is “to commit literary theft”).
13. See discussion infra notes 32–35 and accompanying text. Interestingly, under
Scottish law today, the crime of plagium or “theft of a child” involves the unauthorized
taking of a child from the control of a person who is legally entitled to that child’s care or
custody. Hamilton v. Wilson, 1994 S.L.T. 431 (H.C.J. 1992); Hamilton v. Mooney, 1990
S.L.T. 105 (Sh. Ct. 1989).