Tuesday, February 14, 2017

National Review piece on Crowley incident confuses plagiarism and copyright infringement

Within a discussion in the National Review of the Monica Crowley "plagiarism" incident in the post The Anti-Trump Media’s Attack on Monica Crowley, one finds text about Ph.D. theses:

Dissertations exist to synthesize.

In context of the Crowley matter, this is to suggest that "historical" research necessarily draws on that which is already recorded.

To synthesize is to combine (a number of things) into a coherent whole. In the realm of patent law, a combination claim is the synthesis of claim elements, each of which individually is known in the art, into
an invention which is novel and non-obvious. A point of discussion in the analysis of patentability of combination claims is whether or not they are obvious [see KSR]. An entirely different patent claim is one that comprises elements, not all of which are known in the art. One would hope there are some theses which are more than syntheses of prior art elements.

Some text about KSR appears in the 14 Feb 2017 decision in Personal Web:

The Supreme Court in KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398 (2007), explained that, “because inventions
in most, if not all, instances rely upon building blocks long
since uncovered, and claimed discoveries almost of necessity
will be combinations of what, in some sense, is already
known,” “it can be important to identify a reason
that would have prompted a person of ordinary skill in
the relevant field to combine the elements in the way the
claimed new invention does.” Id. at 418–19.

one wonders how many fewer Ph.D.'s would be granted if the "obviousness" approach of patent law were applied. If the grad student of ordinary abilities would have been motivated to combine the same elements to reach the same conclusion,
"no Ph.D."

Moving on to the plagiarism issue, the gist of the article in the National Review is that the plagiarism charges against Crowley were a political hit job. Let's stipulate that. So were the charges against Glenn Poshard as to his Ph.D. thesis at SIU and against Joe Biden over his copying of speeches of Neil Kinnock. [But Biden's copying in law school was not a political hit job.] Apart from motivation for bringing such charges, the question as to plagiarism is whether or not there was copying of a source without attribution, such that the intended recipient would not be aware of the source. For example, Abraham Lincoln's use of "house divided" language is not plagiarism of the Bible if the audience knows of the text from the Bible. But if Biden's audience did not know about Kinnock, there would be a problem.

As has been pointed out on IPBiz previously, plagiarism and copyright infringement are not co-extensive. One can infringe a copyright without plagiarizing (copying with attribution but without permission of the copyright owner) and one can plagiarize without infringing a copyright (taking credit for text in a public domain work; see Dastar).

Thus, it was sad to see the discussion in the National Review analyzing plagiarism in terms of copyright concepts:

The match often seemed computer-generated from shared proper names and generic phrases, or news and anecdotes repeated by aggregators and editorialists. This type of material is generally considered fair use and/or public domain. As a result, this CNN list was misleadingly long, possibly a calculated attempt to condemn her with manufactured, but false, bulk.

For details of how an attributed quotation can constitute copyright infringement outside of "fair use", see New Era v. Carol (SDNY 1990).


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