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An Arguable Distinction

July 4, 2011

Here is an arguable distinction. Last week, this sentence appeared in my column: “Titled “Psychology through literature: an anthology,” I was not surprised to see that it was owned at one point by someone living in Chicago.”

However, I submitted this sentence: “It is titled “Psychology through literature: an anthology,” and I was not surprised to see that it was owned at one point by someone living in Chicago.”

There is a difference. It may not matter to a newspaper reader sipping a latte and skimming for chunks of information, so I’m not concerned that the end of civilization is at hand.

The difference caught my eye because the printed version is a kind of Reader’s Digest style I dislike—for example: “Born in Indiana, Bob learned to draw in public school.” The sentence construction hints at an implication but is merely an aggregation of facts.

A few words can matter. And they still do matter, even in a culture inundated with so much text we often seem blind to it. In particular, plagiarism raises its ugly head in the news at least every election season.

While selecting books to move to the library’s basement annex—decisions determined mostly by use—I came upon “The Little Book of Plagiarism” by Richard Posner, a federal judge and law school lecturer.

The title is true. The book is just over 100 pages, and it discusses what plagiarism is and is not, with some fascinating examples. Plagiarism is not copyright infringement, which seems to be the bigger fear these days, but a charge of plagiarism gets great media attention because implicit in the charge is ethical failure.

Here’s how Posner begins his summation near the end: “Plagiarism is a species of intellectual fraud. It consists of unauthorized copying that the copier claims (whether explicitly or implicitly, and whether deliberately or carelessly) is original with him and the claim causes the copier’s audience to behave otherwise than it would if it knew the truth.”

By this point, Posner has examined what is fraudulent and what isn’t, what is unauthorized and what is fair use, examples of both deliberate and careless plagiarism, and issues of damages and copyright infringement.

There are many subtle points, but I was fascinated to realize how subtle is our collective recognition of what constitutes plagiarism. What is plagiarism in one realm is not in another.

Judges routinely sign their names to the work of clerks, for example, but there is no plagiarism. Rather than “author,” it is a matter of authorization. In the legal world, the practice is understood by all, but more importantly, originality in legal opinion is neither valued nor encouraged.

A judge whose decisions are stunning, original, and unanticipated, would be discouraged or reprimanded. But then, even outside the legal world, how much of what is “created” is genuinely new?

There is much room in the assessment for “creative imitation.” This is how the frontiers of literature, art, science, commerce, are expanded. Posner makes an interesting defense of Nabokov against a claim of plagiarism with “Lolita,” which he is not inclined to do for historians Doris Kearns Goodwin or Stephen Ambrose.

Is an idea protected, or merely the particular expression of an idea? A little luck and it would be Wallace rather than Darwin being vilified long after his death. Would we be less relativistic today without Einstein?

And the Declaration of Independence? The ideas were out there, and I’m glad Jefferson wrote them down the way he did and that we kept them. Happy Independence Day.


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