On Gerald Posner and "accidental plagiarism"
Gerald Posner, author of the Kennedy assassination book "Case Closed," announced his resignation from the Daily Beast following plagiarism charges (concerning a story on the Novacks in Miami) leveled by a post on Slate. Breitbart reported Posner wrote on his Web site that he "inadvertently" copied the passages into master files and that he "lost sight" that the material belonged to a published source.
Posner's website speaks of the matter in the following way:
Last Friday [5 Feb 2010], Jack Shafer in Slate ran an article pinpointing five sentences from one of my stories in The Daily Beast, which I admitted met the definition of plagiarism and I accepted full responsibility for that error, an incident I called “accidental plagiarism.”
(...)
I realize how it is that I have inadvertently, but repeatedly, violated my own high standards. The core of my problem was in shifting from that of a book writer – with two years or more on a project – to what I describe as the “warp speed of the net.” For the Beast articles, I created master electronic files, which contained all the information I developed about a topic – that included interviews, scanned documents, published articles, and public information. I often had master files that were 15,000 words, that needed to be cut into a story of 1,000 to 1500 words.
The Breitbart post is not entirely accurate as to Posner's use of "inadvertent," a somewhat sensitive word in light of the defense by Glenn Poshard of inadvertent plagiarism. Posner "inadvertently" violated his standards and created an incident of "accidental plagiarism."
Posner also wrote:
This afternoon [Feb. 10] I received a call from Edward Felsenthal, the excellent managing editor of The Daily Beast. He informed me that as part of the Beast’s internal investigation, they had uncovered more instances in earlier articles of mine in which there the same problems of apparent plagiarism as the ones originally brought to life last Friday by Shafer. I instantly offered my resignation and Edward accepted.
Whether the copying is term inadvertent or accidental, there is a major difference between the Poshard and Posner matters: Posner resigned and Poshard didn't.
Also within the Posner post:
When The Daily Beast had asked me last Friday if there were any more problems than the five original sentences highlighted by Shafer, I had confidently told them, “No.” It was not because I had subjected my own articles to so-called plagiarism software, or because I was in denial about any deliberate plagiarism.
(...)
Readers of my writing over 26 years, 11 books and over a hundred articles, have the right to trust that I have personally vetted and corroborated the facts I present, and that I can vouch for them. Plagiarism is insidious because it rightfully violates that trust. Just the mere use of the word raises the idea that the accused journalist has broken one of the cardinal rules of writing and is somehow cutting corners on research, facts, or original reporting.
IPBiz notes that plagiarism is copying without attribution, and is distinct from issues associated with vetting and corroboration. One can plagiarize a false text or a truthful one. The above stream is a bit of a non sequitur in that the presence of plagiarism does not violate trust developed concerning vetting and corroboration.
Posner concluded his post: I shall not be doing journalism on the internet until I am satisfied that I can do so without violating my own standards and the basic rules of journalism.
The Slate post includes text:
Veteran journalist Gerald Posner acknowledged today that he copied five sentences from a Miami Herald article this week for a piece he wrote for the Daily Beast. The Daily Beast appended an editor's note to the beginning of Posner's piece today, explaining that the copying was "inadvertent" and that the Daily Beast has deleted the copied passages.
(...)
But, again, he's not making excuses. He also refused to soft-pedal in any way what he did because it was inadvertent, as many plagiarists do. "The act is the act," he said.
IPBiz notes that Posner characterized his act as one of accidental plagiarism, and he did distinguish his act from deliberate plagiarism.
In the 1990's, advertisements for the book "Case Closed" had depicted competing authors as "guilty of misleading the American public," which text led to a group of lawsuits. In one of these (Groden v. Random House), the Second Circuit wrote:
Appellant's second Lanham Act argument contends that the ad constitutes false advertising because the statement "GUILTY OF MISLEADING THE AMERICAN PUBLIC", made with reference to Groden and the other authors, and the statement, "ONE MAN. ONE GUN. ONE INESCAPABLE CONCLUSION.", made with reference to Posner's thesis, are both false. This claim also is without a basis in law. In order to be actionable under the Lanham Act, a challenged advertisement must be literally false or, though literally true, likely to mislead or confuse consumers. See Johnson & Johnson * Merck Consumer Pharmaceuticals Co. v. Smithkline Beecham Corp., 960 F.2d 294, 297 (2d Cir.1992); McNeil-P.C.C., 938 F.2d at 1549. However, statements of opinion are generally not the basis for Lanham Act liability. See Restatement (Third) of Unfair Competition Sec. 3 cmt. d (1993).
As the District Court noted, the statement "GUILTY OF MISLEADING THE AMERICAN PUBLIC" is obviously a statement of opinion that could not reasonably be seen as stating or implying provable facts about Groden's work. See Licata & Co., Inc. v. Goldberg, 812 F.Supp. 403, 408 (S.D.N.Y.1993); see also Lane v. Random House, 1995 WL 46376 at * 9 (finding same statement at issue here to be "rhetorical hyperbole" that "does not state actual facts about an individual" and "cannot be proven true or false");
There are widely varying opinions on the underlying factual matter, not all favorable to Posner.
See also
The concept of anticipation: before the USPTO and book buyers
Update. 1 Sept 10***On non sequiturs, note
Logos: The Gray Area between Copyright and Trademark which talks about distinctions between trademarks, not between copyrights and trademarks:
However, that doesn’t mean you can prevent any and all uses of, say, your company name. Ace Hardware and Ace Bandages can peaceably co-exist because they fall into different markets that are unlikely to overlap and cause confusion.
Reference Plagiarism Today: “Trademark, Copyright and Logos,”
link: http://www.plagiarismtoday.com/2010/08/12/trademark-copyright-and-logos/
Posner's website speaks of the matter in the following way:
Last Friday [5 Feb 2010], Jack Shafer in Slate ran an article pinpointing five sentences from one of my stories in The Daily Beast, which I admitted met the definition of plagiarism and I accepted full responsibility for that error, an incident I called “accidental plagiarism.”
(...)
I realize how it is that I have inadvertently, but repeatedly, violated my own high standards. The core of my problem was in shifting from that of a book writer – with two years or more on a project – to what I describe as the “warp speed of the net.” For the Beast articles, I created master electronic files, which contained all the information I developed about a topic – that included interviews, scanned documents, published articles, and public information. I often had master files that were 15,000 words, that needed to be cut into a story of 1,000 to 1500 words.
The Breitbart post is not entirely accurate as to Posner's use of "inadvertent," a somewhat sensitive word in light of the defense by Glenn Poshard of inadvertent plagiarism. Posner "inadvertently" violated his standards and created an incident of "accidental plagiarism."
Posner also wrote:
This afternoon [Feb. 10] I received a call from Edward Felsenthal, the excellent managing editor of The Daily Beast. He informed me that as part of the Beast’s internal investigation, they had uncovered more instances in earlier articles of mine in which there the same problems of apparent plagiarism as the ones originally brought to life last Friday by Shafer. I instantly offered my resignation and Edward accepted.
Whether the copying is term inadvertent or accidental, there is a major difference between the Poshard and Posner matters: Posner resigned and Poshard didn't.
Also within the Posner post:
When The Daily Beast had asked me last Friday if there were any more problems than the five original sentences highlighted by Shafer, I had confidently told them, “No.” It was not because I had subjected my own articles to so-called plagiarism software, or because I was in denial about any deliberate plagiarism.
(...)
Readers of my writing over 26 years, 11 books and over a hundred articles, have the right to trust that I have personally vetted and corroborated the facts I present, and that I can vouch for them. Plagiarism is insidious because it rightfully violates that trust. Just the mere use of the word raises the idea that the accused journalist has broken one of the cardinal rules of writing and is somehow cutting corners on research, facts, or original reporting.
IPBiz notes that plagiarism is copying without attribution, and is distinct from issues associated with vetting and corroboration. One can plagiarize a false text or a truthful one. The above stream is a bit of a non sequitur in that the presence of plagiarism does not violate trust developed concerning vetting and corroboration.
Posner concluded his post: I shall not be doing journalism on the internet until I am satisfied that I can do so without violating my own standards and the basic rules of journalism.
The Slate post includes text:
Veteran journalist Gerald Posner acknowledged today that he copied five sentences from a Miami Herald article this week for a piece he wrote for the Daily Beast. The Daily Beast appended an editor's note to the beginning of Posner's piece today, explaining that the copying was "inadvertent" and that the Daily Beast has deleted the copied passages.
(...)
But, again, he's not making excuses. He also refused to soft-pedal in any way what he did because it was inadvertent, as many plagiarists do. "The act is the act," he said.
IPBiz notes that Posner characterized his act as one of accidental plagiarism, and he did distinguish his act from deliberate plagiarism.
In the 1990's, advertisements for the book "Case Closed" had depicted competing authors as "guilty of misleading the American public," which text led to a group of lawsuits. In one of these (Groden v. Random House), the Second Circuit wrote:
Appellant's second Lanham Act argument contends that the ad constitutes false advertising because the statement "GUILTY OF MISLEADING THE AMERICAN PUBLIC", made with reference to Groden and the other authors, and the statement, "ONE MAN. ONE GUN. ONE INESCAPABLE CONCLUSION.", made with reference to Posner's thesis, are both false. This claim also is without a basis in law. In order to be actionable under the Lanham Act, a challenged advertisement must be literally false or, though literally true, likely to mislead or confuse consumers. See Johnson & Johnson * Merck Consumer Pharmaceuticals Co. v. Smithkline Beecham Corp., 960 F.2d 294, 297 (2d Cir.1992); McNeil-P.C.C., 938 F.2d at 1549. However, statements of opinion are generally not the basis for Lanham Act liability. See Restatement (Third) of Unfair Competition Sec. 3 cmt. d (1993).
As the District Court noted, the statement "GUILTY OF MISLEADING THE AMERICAN PUBLIC" is obviously a statement of opinion that could not reasonably be seen as stating or implying provable facts about Groden's work. See Licata & Co., Inc. v. Goldberg, 812 F.Supp. 403, 408 (S.D.N.Y.1993); see also Lane v. Random House, 1995 WL 46376 at * 9 (finding same statement at issue here to be "rhetorical hyperbole" that "does not state actual facts about an individual" and "cannot be proven true or false");
There are widely varying opinions on the underlying factual matter, not all favorable to Posner.
See also
The concept of anticipation: before the USPTO and book buyers
Update. 1 Sept 10***On non sequiturs, note
Logos: The Gray Area between Copyright and Trademark which talks about distinctions between trademarks, not between copyrights and trademarks:
However, that doesn’t mean you can prevent any and all uses of, say, your company name. Ace Hardware and Ace Bandages can peaceably co-exist because they fall into different markets that are unlikely to overlap and cause confusion.
Reference Plagiarism Today: “Trademark, Copyright and Logos,”
link: http://www.plagiarismtoday.com/2010/08/12/trademark-copyright-and-logos/
posted by Lawrence B. Ebert at 4:43 AM
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